In an opinion Friday, Judge Abrams approved an SEC settlement, but wrote that she would “not do so silently,” because she found highly “troubling” the SEC’s standard, non-negotiable provision requiring that the defendant not make “any public statement denying, directly or indirectly, any allegation in the complaint or creating the impression that the complaint is without factual basis”:
The threat held over the head of defendants by this so-called “No-Admit-No-Deny Provision” (the “Provision”) is not easily overstated. Should they ever publicly refute the accusations against them, or even so much as “create the impression” that the SEC got something wrong, the Commission may reopen their cases or seek to hold them in contempt, thereby subjecting them to the risk of enormous financial and professional penalties, if not imprisonment. Truth is no defense. No matter how weak, or strong, the allegations in the complaint may be—indeed, even if the testimony of key witnesses proves to be false—if defendants ever consider publicly defending themselves, the No-Admit-No-Deny Provision prevents them from doing so.
. . .
By preventing defendants from publicly defending themselves, or even criticizing the SEC’s handling of the case (thereby “creating the impression” that the Commission sanctioned them without basis), the Provision denies the public the opportunity to scrutinize the government’s enforcement practices. Indeed, the very people who are arguably “in the best position to know” of governmental abuse, Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 674 (1996)—that is, those who have been subjected to the SEC’s enforcement actions—are those who are muzzled by the Provision from speaking out.