Plaintiff John Gallard claimed that defendants damaged his business by engaging in a Securities and Exchange Commission ("SEC") investigation during which the SEC subpoenaed certain information concerning plaintiff's financial transactions from third party banks, brokers, and individuals. This contact, asserted Gallard, led to entities ceasing their business with him.
I have reviewed in camera the correspondence that the SEC sent out. While the correspondence related that the SEC was in the process of conducting an "investigation," it almost always cautioned that "this investigation is confidential and non-public [and that] this request should not be construed as an indication by the Commission or its staff that any violations of law have occurred nor should it be considered a reflection upon any person, entity, or security." Notwithstanding this language, it is not difficult to envision certain third parties choosing not to do business with the subject of an SEC investigation. Because this "quarantine" appears to be an unavoidable consequence of the SEC obtaining the information it needs to police the securities markets, any resulting injury can generally not be actionable.
If, however, the subject of such an investigation can show that "a subpoena [had not been] issued in good faith but to harass or pressure the subject of an investigation, or for any other improper purpose," SEC v. Brigadoon Scotch Distrib., 480 F.2d 1047, 1056 (2d Cir. 1973) (stating that courts should not enforce subpoenas issued under such circumstances (citing United States v. Powell, 379 U.S. 48, 58, 13 L. Ed. 2d 112, 85 S. Ct. 248 (1964))), cert. denied, 415 U.S. 915 (1974), then the interesting question arises as to whether the SEC would be liable for the subject's damages pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. That question is not reached here, because plaintiff has not credibly implicated the SEC's motive. Accordingly, defendants' Motion to Dismiss this case is granted.
New York, New York.
May 2, 1995
Harold Baer, Jr.
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