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S.E.C. Memorandum on Court Order Against Deloitte

S.E.C. Memorandum on Court Order Against Deloitte

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Published by DealBook
The Securities and Exchange Commission's memorandum on its request for a court order against Deloitte Touche Tohmatsu.
The Securities and Exchange Commission's memorandum on its request for a court order against Deloitte Touche Tohmatsu.

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Published by: DealBook on Oct 19, 2011
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09/03/2013

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA__________________________________________
U.S. Securities and Exchange Commission
)100 F Street, N.E. )Washington, DC 20549 ))Movant, ) 11 Misc. 512)-v.- ))
Deloitte Touche Tohmatsu CPA Ltd.
)30/F Bund Center )222 Yan An Road East )Shanghai 200002, PRC ))Respondent. )__________________________________________)
SECURITIES AND EXCHANGE COMMISSION’S MEMORANDUM OF LAW INFURTHER SUPPORT OF ITS APPLICATION FOR ORDER TO SHOW CAUSE
The United States Securities and Exchange Commission (“SEC” or “Commission”)respectfully submits this memorandum of law in further support of its Application for an Orderto Show Cause (the “Application”), filed on September 8, 2011. More specifically, the SECsubmits this memorandum in response to this Court’s inquiries at a status hearing held onOctober 7, 2011. The Court asked the SEC to submit authority for its arguments that (1) theCourt can issue the requested Order to Show Cause notwithstanding the fact that theRespondent has not yet been formally served with the Application or appeared in the case; and(2) the Court should authorize that service of the Order to Show Cause be effectuated on theRespondent (a foreign entity) by the SEC’s providing a copy of the signed Order to ShowCause to the Respondent’s U.S. counsel pursuant to Rule 4(f)(3) of the Federal Rules of CivilProcedure. As discussed below, there is ample authority for each of the SEC’s arguments.Accordingly, the SEC urges this Court to issue the requested Order to Show Cause and
Case 1:11-mc-00512-GK-DAR Document 7 Filed 10/13/11 Page 1 of 14
 
2authorize the SEC to serve it upon the Respondent by providing a copy to the Respondent’sU.S. counsel.
I.
 
This Court May Issue The Order To Show Cause
 Ex Parte.
 
This Court can, and should, enter an Order to Show Cause in this case notwithstandingthe fact that the Respondent has not yet been formally served with the SEC’s Application orappeared in the case. Indeed, that is the standard practice in matters of this type. In a summaryproceeding to enforce an administrative subpoena such as this one, it is wholly appropriate fora court to consider and issue an Order to Show Cause
ex parte
. In part, that is because theissuance of an Order to Show Cause itself does not deprive the Respondent of any substantiverights; the proposed Order simply directs the Respondent to respond to the substance of theSEC’s claim – namely, that the Respondent has unjustifiably failed to comply with anadministrative subpoena. Only after the Respondent has been served with the Order to ShowCause and has an opportunity to address the merits will the SEC request that the Court issue anOrder directing compliance with the underlying subpoena.The proposed Order to Show Cause is a standard way in which to commence an effortto enforce an administrative subpoena issued in the context of an ongoing investigation. Forexample, in
SEC v. Lines Overseas Mgt 
., No. 04 Misc. 302 (D.D.C. 2004), the SEC applied, asit has done here, for an Order to Show Cause and for an Order Requiring Obedience to aSubpoena without formally serving the Bermuda-based respondents with its application.Magistrate Judge Kay then issued an Order to Show Cause prior to any counsel appearing onbehalf of the respondents. Upon issuance of the Order to Show Cause, the SEC served therespondents with the Court’s Order and the respondents then appeared in the case. A copy of the docket sheet from
 Lines Overseas
is attached to the accompanying declaration as Exhibit
Case 1:11-mc-00512-GK-DAR Document 7 Filed 10/13/11 Page 2 of 14
 
3A.
See
 
SEC v. Lines Overseas Mgt 
., 04 Misc. 302, 2005 WL 3627141 (D.D.C. Jan. 7, 2005)(detailing background of case and addressing respondents’ challenges to enforceability of subpoenas). The same practice was employed in the case of 
SEC v. R.J. Reynolds Tobacco Holdings, Inc.
, No. 03 Misc. 1651 (D.D.C. 2003). A copy of the docket sheet from
 R.J. Reynolds
is attached to the accompanying declaration as Exhibit B.
See SEC v. R.J. ReynoldsTobacco Holdings
,
 Inc
., No. 03 Misc. 1651, 2004 WL 3168281 (D.D.C. June 29, 2004)(detailing background of case and addressing merits of SEC’s application for an orderrequiring obedience to a subpoena).The D.C. Circuit has reviewed subpoena enforcement actions commenced in thismanner and has never suggested that a district court must provide a respondent with anopportunity to be heard
before
the issuance of an Order to Show Cause.
See
 
 Resolution Trust Corp. v. Frates
, 61 F.3d 962, 963-64 (D.C. Cir. 1995) (approving district court’s order toenforce an administrative subpoena and noting that “Judge Stanley S. Harris issued an
ex parte
 order to show cause why the court should not grant the petition [to enforce an administrativesubpoena] and, after oral argument, order the subpoena enforced”);
Commodity FuturesTrading Comm’n v. Nahas
, 738 F.2d 487, 489-90 (D.C. Cir. 1984) (considering appeal fromorder enforcing subpoena where enforcement action was initiated through a petition for anorder to show cause against Brazilian resident). Courts in other districts have similarly issuedOrders to Show Cause in SEC subpoena enforcement actions in this manner.
See
 
 Applicationto Enforce Admin. Subpoenas Duces Tecum of the SEC v. Knowles
, 87 F.3d 413, 415 (10th Cir.1996) (describing background procedure by which the SEC filed an
ex parte
application for anorder to show cause and, thereafter, served the respondent with the order);
SEC v. Nicita
, No.07CV772 WQH (AJB), 2007 WL 1704585, at *1 (S.D. Cal. June 13, 2007) (same). Similarly,
Case 1:11-mc-00512-GK-DAR Document 7 Filed 10/13/11 Page 3 of 14

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