The lawsuit that the U.S. Commodity Futures Trading Commission is considering filing against MF Global chief executive Jon Corzine would require the CFTC also to charge other former MF Global employees, legal experts said on Tuesday.
The CFTC is preparing to recommend to its commissioners that a civil complaint against Corzine be filed in federal court, a person familiar with the matter said.
The potential suit was first reported by the New York Times on Tuesday.
Two former CFTC officials, one of whom declined to be named, said other people who were working at MF Global when the brokerage firm collapsed in October 2011 will have to be charged if the commission plans to accuse Corzine, a former New Jersey governor, of violating his responsibilities as the person in control of the firm.
MF Global made a $6.3 billion bet on European sovereign debt and went bankrupt after dipping into customer accounts to try to meet margin calls, a violation of industry rules.
Although the identities and specific job descriptions aren’t yet clear, the other people likely to be charged would be the individuals close to the transfer of nearly $900 million in customer funds to the firm’s account just before the collapse.
Under the legal concept of a “control person,” a violation occurs when the person in charge – Corzine in this case – does not stop those under his control from illegal acts. For Corzine to be liable, people under his control would have to be charged with wrongdoing, like inappropriately transferring customer money into the firm’s accounts.
The firm’s collapse prompted investigations by the CFTC and the Federal Bureau of Investigation. Early last year, Reuters first reported it was unlikely that criminal charges would be filed against Corzine or others associated with MF Global.
In an interview with Reuters on Monday before news of the potential lawsuit broke, Corzine‘s lawyer, Andrew Levander, said Corzine couldn’t be held responsible for actions by MF Global employees he did not directly supervise. “Whatever mistakes were made in the back office in Chicago,” Levander said, “he doesn’t know what they did or didn’t do.”
“I think that there’s enormous political pressure on the CFTC to do something about MF Global,” Levander said.
The person familiar with the matter said the commission would consider accusing Corzine of failing to meet his responsibilities as a person in control, as prescribed by the Commodity Exchange Act. According to the act, the CFTC must prove he “did not act in good faith or knowingly induced, directly or indirectly, the act or acts constituting the violation.”
“If you’re going to charge him under that you’re basically holding him responsible for the violations of somebody else,” said Gary DeWaal, a former general counsel for the brokerage NewEdge who also served as a senior trial attorney for the CFTC’s enforcement division.
“This was one of the largest bankruptcies in history and it’s hard for people to understand, how can you have such a big problem and no one be responsible?” DeWaal said.
Steven Goldberg, a spokesman for Corzine, said in an emailed statement: “The CFTC apparently intends to bring what would be an unprecedented and meritless civil enforcement action against Mr. Corzine.”
DeWaal said the commission would likely seek “injunctive relief” to prevent a future action, most likely Corzine‘s return to the brokerage business. This would not rule out the regulator also seeking financial penalties. He, too, said the pressure to act was strong, especially since the CFTC needs Congress to reauthorize its funding this year.
The pressure, he said, could make it difficult for Corzine and the CFTC to reach a settlement agreement.
“I would have to imagine that the bid-ask spread between what the commission would want from him and what he would be willing to settle for is so great that the likelihood that he would be willing to settle is small,” he said.
But Therese Doherty, a partner at Herrick Feinstein who focuses on defending firms and individuals sued by the CFTC, said after a suit is filed in court, the CFTC has an incentive settle quickly.
“If you think about it, the CFTC has an interest in coming to a resolution without expending resources in a lawsuit,” she said.
(Reporting By Emily Flitter and Karen Freifeld; Additional reporting by Nick Brown; Editing by Cynthia Osterman)