Sunday, March 10, 2013 10:24:56 PM
I most certainly never stated that, so the above is not "according to [me]."
Sure it can, by considering issues that are relevant to the court's determination of whether to approve the settlement. Pertinent inquiries might include:
Do the terms of the agreement serve the public interests that the securities laws are designed to protect?
Are the proposed injunctions consistent with the nature of the alleged violations? Do they further the purposes of the securities laws?
Is there any indication or suggestion of bad faith or malfeasance on the part of any party in entering into the agreement?
Is there any indication that consent to the judgment was not freely given?
None of these inquiries requires the judge to examine evidence bearing on the merits because the judge is not addressing the merits of the SEC's claims. This is not to suggest that the judge's review is necessarily confined to the current record, of course, as the judge is free to hold a hearing or request further information from the parties if needed.
No, to the contrary, the court must consider the law when determining whether the settlement is fair and reasonable. The terms of the settlement must comport with the purposes that the laws are intended to serve. As a practical matter, courts rarely reject settlements, particularly if both parties to the settlement are well-represented. After all, one would expect that the SEC would not agree to settlement terms that are inconsistent with the same laws the SEC is responsible for enforcing.
As I keep explaining, the judge is not ruling on the merits. The court's duty when considering a settlement agreement is fundamentally different that its duty when making findings and entering judgment after trial. The whole purpose of settlement is to resolve the controversy without expending the time and money to pursue protracted litigation and trial. It would make little sense to settle a case if the judge were nonetheless obligated to try the case on the merits in order to approve the settlement.
Yes, and that statement still is nonsense. But I guess you are sticking with it (no surprise).
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