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SEC hasn’t ruled out action over Bear Stearns

/ Source: The Associated Press

Securities regulators haven't ruled out legal action over potentially misleading comments about the financial health of Bear Stearns made days before JPMorgan arranged to buy the struggling investment bank.

The Securities and Exchange Commission said Tuesday that its lawyers will "favorably" factor in the circumstances of the Bear Stearns & Cos. takeover in deciding whether to act against its new owner.

The agency's enforcement division has written a letter to JPMorgan Chase & Co., which agreed to acquire Bear Stearns at the fire-sale price of $260.5 million Sunday in an emergency deal backed up by the Federal Reserve. The letter from the SEC staff discussed "investigations and potential future inquiries into conduct and statements by Bear Stearns" before the announcement of the takeover, the agency said in a news release of questions and answers related to the Bear Stearns situation.

In the letter, the SEC enforcement attorneys "declined to provide assurances about possible future enforcement actions" and said it would be premature to reach conclusions about their inquiry. However, they added that the staff "would favorably take into account" the circumstances surrounding the takeover when considering whether to recommend enforcement action against JPMorgan for public statements made by Bear Stearns.

Spokesmen for JPMorgan Chase didn't immediately return a telephone call seeking comment.

There have been cases in the past when the SEC has shown leniency toward companies that have acquired other firms that may have violated securities laws, since the parent company didn't play a part and the acquired firm ceases to exist as an independent entity. The agency still has brought enforcement actions against individuals, however.

Last Monday, when rumors started to circulate on Wall Street that Bear Stearns was short on liquidity and might not have enough cash to do business, the firm's executives tried to tamp down the negative chatter with a news release. It said Bear Stearns' "balance sheet, liquidity and capital remain strong. ... There is absolutely no truth to the rumors of liquidity problems that circulated today in the market."

On Wednesday, Bear Stearns CEO Alan Schwartz appeared on CNBC to reassure investors that the firm had ample liquidity and said he was "comfortable" that it would turn a profit in its fiscal first quarter. By Thursday, Bear Stearns' solvency was being called into question and by Friday it told regulators it was ready to file for bankruptcy.

Irving Pollack, a former enforcement director at the SEC, suggested that the dramatic whirlwind rescue of Bear Stearns may be a mitigating factor in a decision on whether to take enforcement action. The firm's stock dropped so rapidly in a short period of time that the circumstances, and the public disclosures made by executives, "will take time to unravel," said Pollack, who is an attorney at Fulbright & Jaworski.