SEC v Barry et al.

Meet Brenda, Eric, and Caleb

Brenda Barry, Eric Cannon, and Caleb Moody worked as sales agents for PacWest, a company selling an investment offering called life settlements. In 2015, the SEC sued PacWest, its founder, and other personnel, including our clients, alleging the life settlements arrangements should have been registered as a securities offering and that Brenda, Eric, and Caleb should have been registered as securities brokers.

In filing suit, the SEC did not allege that any investors were harmed or that any investor had complained. They did not allege that Brenda, Eric, or Caleb misled anyone about the investment. As sales agents, Brenda, Eric, and Caleb (non-lawyers certified to sell insurance products under California law) had no reason to believe they were violating any law. Nevertheless, when the SEC sued in federal court, they went after not just the company but individual employees caught up in the wide net they cast. While the other PacWest defendants are no longer litigating with the SEC (because they settled or were put into receivership) the amount of money being sought from our clients is financially ruinous. They don’t have the luxury of settling to escape the ire of the SEC. That is where ICAN comes in.

Before the establishment of ICAN, members of our team provided pro bono legal assistance to Brenda, Eric, and Caleb in their eight-year battle with the SEC. Now, under the auspices of ICAN, we can continue that fight. It is a fight not just to ensure Brenda, Eric, and Caleb receive justice but to begin building a legal bulwark against the kind of SEC overreach that harms investors and creates de facto barriers that stifle innovation and further limit engagement in the market by those who cannot afford to risk incurring the ire of the SEC.

Does the SEC Even Have Jurisdiction?

In going after Brenda, Eric, and Caleb, imposing judgements of hundreds of thousands of dollars, the SEC is seeking to punish three individuals with no legal expertise for failing to recognize something the legal profession has not been able to conclusively determine for decades: whether life insurance settlement arrangements are securities.

You may be familiar with the Howey Test, a framework based on a landmark 1946 Supreme Court case that determines whether something is indeed a security and thus under the SEC’s purview. With the developments in cryptocurrencies over the last few years, the Howey Test has received increased attention.

In our appeal, ICAN outlines a compelling case for why PacWest's life settlement arrangements were not securities based on the Howey Test. PacWest had been selling its life insurance settlements for years before the SEC came knocking. While no statutes or regulations existed to classify whether they were securities, some courts had previously ruled (including the prominent federal appellate court for the District of Columbia, SEC v Life Partners in 1996) that life insurance settlement instruments very similar to those offered by PacWest were not securities.

Despite the SEC’s loss on the issue in SEC v Life Partners, the SEC continued to litigate the issue for the next thirty years trying to regulate this same issue through enforcement, determined to expand its jurisdiction to include yet another financial instrument.

Regulation through enforcement has become a dangerous pattern.

With nearly unlimited resources at its disposal, the federal agency can file case after case, in district after district, until it finds a court that will rule in its favor – or simply a defendant who settles or defaults before a court makes a final determination, incrementally expanding the agency’s jurisdiction and strengthening the SEC’s ability the next time it wants to redefine another financial product as a security.

With such egregious overreach, the SEC is creating uncertainty and risk that stifles market innovation and investor choice, betraying its own mission.

Eight years of government agency time and taxpayer dollars have been spent in an effort to pull yet another financial product under the ever-growing purview of the SEC, all in the name of “protecting” investors who are, by all indications, perfectly happy and satisfied with the life insurance settlement market as it is currently operating. If a life insurance settlement can suddenly be declared a security, what’s next? What’s to stop the SEC when it targets its regulatory ire in a new direction?

ICAN exists to build a precedent-based legal barrier to halt such SEC overreach. To ensure that the agency’s efforts to expand its domain do not advance uncontested. To ensure clients like Brenda, Eric, and Caleb have the opportunity to push back, not just for themselves, but for the next person who may unwittingly get caught in the SEC’s ever-expanding dragnet of regulation through enforcement.

No Victims, No Fraud, No Harm

Even if the courts were to find that the life settlements in question were actually securities, the allegations at hand are simple registration violations. The SEC has never claimed that ICAN’s clients acted fraudulently or caused any investors harm. Ironically, the court-appointed receiver in the case recently informed the court that investors will likely receive 100% of their investment even if ICAN’s clients are not required to pay a dime.

Saddling ICAN’s clients with federal court judgments for hundreds of thousands of dollars that they cannot pay will have little effect and also may run afoul of recent rulings from the United States Supreme Court.

Without ICAN empowering our clients to push back, SEC v Barry et al. would become yet one more easy win for the SEC—one more precedent-setting settlement strengthening the agency’s case for imposing ruinous financial judgments without even an allegation of investor harm or fraud by ICAN’s clients. (ICAN’s first direct representation case—SEC v Punch TV—also addresses this high-stakes issue.)

Why has the SEC been entangled for years, ruining lives over a technical infraction case? Because in most cases, the SEC doesn’t have to devote significant resources to the litigation–it can approach defendants with ruinous circumstances and the prospect of years of costly litigation, forcing most into a settlement or a default. ICAN is dedicated to fighting this absurd regulatory overreach and bringing such SEC efforts to light, allowing the public to judge whether such actions truly serve to protect investors.