Citadel is preparing to push back against the Securities and Exchange Commission’s WhatsApp probe, taking a harder line than the almost two dozen banks that have paid hefty settlements over the past two years.
(Bloomberg) — Citadel is preparing to push back against the Securities and Exchange Commission’s WhatsApp probe, taking a harder line than the almost two dozen banks that have paid hefty settlements over the past two years.
Ken Griffin’s hedge fund has told industry peers that it plans to battle the SEC if the regulator moves against Citadel, according to people familiar with the talks. And it’s willing to take the agency to court, said the people, who asked not to be identified discussing private conversations.
The Miami-based firm would be the first to fight the SEC over any allegations of untracked communications. As a hedge fund, it would likely argue that it’s not subject to the same rules as Wall Street banks like JPMorgan Chase & Co. and Bank of America Corp., which agreed to pay more than $2.5 billion to settle US regulators’ investigations into their employees using unofficial messaging platforms for business.
“Citadel takes seriously its obligation to comply fully with the SEC’s investment adviser rules and regulations, including those concerning the proper monitoring and recordkeeping of our employees’ business-related communications,” the company said in an emailed statement.
The SEC declined to comment.
Bloomberg reported in February that Citadel was under SEC investigation for alleged unmonitored communications, though the agency has yet to formally move against the fund and could ultimately decide against bringing an action. The threat of drawn-out litigation raises the stakes for the regulator and risks a court loss that may weaken its authority in this area.
Under Chair Gary Gensler, the SEC has significantly stepped up its scrutiny of the $26 trillion private funds market through new rules and enforcement actions. In response, hedge fund and private equity industry groups have sued the regulator over its clampdown on how these firms conduct business with investors.
More broadly, the agency is clashing with financial firms over its approach to everything from crypto to stock-market rules. Last year, the agency introduced a plan to overhaul US trading regulations that would affect Citadel Securities, the market maker that is part of Griffin’s business empire.
Under SEC rules, many institutions have to save their business communications. This helps regulators root out fraud and misconduct in the markets. The agency’s investigators have found that many bankers were communicating with each other on personal mobile phones — and that those records weren’t being saved. As of August, 23 firms were sanctioned by the SEC for the practice.
The probe has widened to include private equity and hedge funds. Earlier this year, the agency asked for records from the phones of senior employees at Citadel and Steve Cohen’s Point72 Asset Management, in some aspects going beyond what was asked of banks, Bloomberg reported in February.
Citadel hasn’t heard from the SEC since April and hasn’t received any notice from the regulator that it intends to bring an action against the firm, according to one of the people familiar with the matter.
The agency asked the hedge fund to survey the text messages of about 10 employees, the person said. It requested that any business-related texts — including emojis, when applicable — sent by those employees be given to the SEC, the person said.
The banks that settled with the SEC were brokers, subject to strict recordkeeping rules. Citadel isn’t a broker. The firm, which moved its headquarters from Chicago to Miami last year, is registered as an investment adviser with the SEC.
This subjects the hedge fund to a different set of recordkeeping rules under which industry groups argue the SEC isn’t entitled to broad access to their phones.
“The regulations, as written, do not require investment advisers to preserve all business communications,” executives from 10 trade associations wrote to Gensler in January. The letter’s lead author is Jennifer Han, chief counsel of the Managed Funds Association.
Stable of Attorneys
Citadel has the firepower to take on the SEC. The hedge fund has over $60 billion under management and a stable of securities attorneys.
In making its position against the regulator known to its peers, it might be trying to solicit more firms to unify against the regulator, according to David Rosenfeld, a former SEC enforcement official who now teaches at Northern Illinois University’s law school.
“If all the possible defendants in a sweep are united in saying they are going to litigate, that might push the agency to back down a bit,” he said.
If the Citadel probe winds up in court, both sides risk a ruling that goes beyond the predictable parameters of a settlement.
For Citadel, a loss could lead to a hefty fine for the firm — and headaches for other industry players if a court decision supports the SEC’s authority to access fund managers’ phones.
A Citadel win might forestall future cases by the regulator against private equity and hedge funds for potential unmonitored communications. It could also be a blow to SEC enforcement staff, who have been asking for detailed smartphone records, known as images, in their investigations.
It’s common for the regulator to tell a company to “give us the team members’ names and image their phones” early in an investigation, Chuck Smith, a partner at the law firm Skadden, Arps, Slate, Meagher & Flom, said at a September conference in Chicago.
A court decision could limit the messages that investment advisers must retain, hamstringing SEC enforcement staff.
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