WASHINGTON – The Securities and Exchange Commission isn't buying former Miami budget director Michael Boudreaux's claim that he has been financially ruined and can't pay a $450,000 civil penalty for committing securities fraud.
In a document filed late Tuesday with the U.S. District Court for the Southern District of Florida in Miami, the SEC said Boudreaux's claim "displays his utter failure to accept responsibility and respect the jury's verdict."
The commission asked Judge Cecelia Altonaga, who sits on the court, to approve the $450,000 fine against Boudreaux as well as to impose a permanent injunction barring him from committing future violations of the anti-fraud provisions of federal securities laws.
Miami already settled for $1 million after a jury decided on Sept. 15 that both Boudreaux and the city were guilty of defrauding investors by not disclosing the city's true financial picture in connection with three bond issues in 2009.
Boudreaux responded to the SEC's requests by arguing that he is a financially ruined man after fighting the securities fraud charges and could not pay the penalty. He also said the injunction is not necessary because there is no reasonable likelihood that he will take any future actions that would violate securities laws.
Amie Riggle Berlin, the SEC's lead attorney on the case, wrote in the SEC filing that "Boudreaux offers a parade of arguments criticizing the [SEC's] proposed relief while seeking to re-litigate the jury's finding that he engaged in securities fraud."
Boudreaux had said that he should either pay no penalty or a much lower penalty than the SEC is asking. Riggle Berlin said that the $450,000 is not the maximum amount the SEC could seek, and instead is properly calibrated to apply a third-tier penalty of $150,000 for each of the three fraudulent bond offerings the case covers.
The SEC lawyer said that the cases that Boudreaux relies on in his argument for no penalty either included instances where a court declined to enter a penalty because of the size of the disgorgement of ill-gotten gains or because there was a parallel criminal case, neither of which is true for Boudreaux.
She also said that Boudreaux's assertion that third-tier penalties should not apply because bondholders did not experience losses are refuted by a number of cases that should serve as precedent.
Additionally, Riggle Berlin rebuffed Boudreaux's statement that he has been financially ruined. "Boudreaux is hardly the man of financial ruin he would ask" the court to believe he is, she said, adding that the 2015 salary Boudreaux provided as part of an unsigned "purported" tax return to support his argument about a lack of funds showed he made $104,000, enough to give him disposable income every month.
During the trial, Boudreaux provided conflicting information about whether his current salary is less than what he made while working for Miami as well as whether he is married, Riggle Berlin wrote. The inconsistencies should keep the court from considering that information, the SEC said.
Boudreaux's argument against the need for injunctive relief rests in part on his inability to work on any municipal budget or in any finance capacity and his lack of opportunity to work with securities or bonds since being accused of securities violations.
Riggle Berlin challenged Boudreaux's claim that he could not find another job dealing with securities, arguing that Boudreaux states on his resume that he is seeking a job in municipal finance and that there is no industry bar prohibiting him from doing so.
She also bolsters the SEC's case for the injunction by arguing that Boudreaux's new job as business manager for a nonprofit religious organization in New Orleans does not prevent him from being subject to an injunction. His conduct was egregious and repeated, and that his "scheme" including his "lies and deceptions" reflects a high degree of intent or knowledge of wrongdoing, Riggle Berlin said.
Additionally, Boudreaux has not recognized his wrongful conduct or expressed remorse, both of which support the need for an injunction, she said.
The SEC filed its complaint against Miami and Boudreaux in 2013 alleging that, starting in 2008, they misled investors about interfund transfers that were designed to cover up a growing general fund deficit in its fiscal years 2007 and 2008. The SEC said the misleading transfers were also meant to get more favorable bond ratings for offerings that were obtained in May, July, and December 2009.
The alleged omissions and misrepresentations were made in: offering documents for the three bond transactions in 2009 that totaled $153.5 million; presentations to bond rating agencies; and the city's comprehensive annual financial reports (CAFRs) for fiscal years 2007 and 2008, according to the SEC.
The city disclosed the interfund transfers in each of their CAFRs and official statements but, according to the SEC, said the transfers contained money that was not expended and was being returned to the general fund. In reality, that money had already been pledged to several ongoing capital projects and some of it was restricted by city law for designated purposes and not the general fund, the SEC said. Thus, the funds that were transferred should not have been considered unallocated, the commission said.