Kirkland vs. Superior Court of LA County, 2002 Ca. App. Lexis 105 (Cal. App., 2Dist., 1/9/02
Discovery Issues * Enforcement Practices/Procedures * Record of Proceedings (Regulatory). Transcripts of testimony in connection with a regulatory investigation are not confidential and may be produced in a subsequent private lawsuit.
Guess? Inc. sued Kirkland for fraud arising out of a sham loan transaction. The transaction allegedly caused Guess? to enter into a failed licensing agreement with PLB, a company which had retained Kirkland as a financial advisor.
During the course of the litigation, Guess? discovered that the SEC had conducted an investigation of the sham transaction and had taken Kirkland’s testimony on the record. Kirkland acknowledged that he had a transcript of the testimony and Guess? demanded that he produce it. He refused on the ground that SEC proceedings are “private” and “confidential.”
A special master ordered the transcript to be produced and Kirkland thereupon filed a writ of mandamus in this Appellate Court seeking to overturn the order. The Appellate Court, however, affirms the trial court’s decision.
Witnesses who testify or produce documents to the SEC usually have the right to obtain copies of the transcripts and where they have done so, there is no cognizable claim of confidentiality or privacy. The Court rejects Kirkland’s argument that, in the absence of judicial protection for the SEC’s confidential investigatory process, witnesses will not be as forthcoming as they otherwise might be. (P. Dubow: While the appeal was pending, the SEC publicly issued a cease and desist order against Kirkland based on an offer of settlement that he made, but this had no effect on the Court’s decision.) (SLC Ref. No. 2002-06-04)
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Mark J. Astarita is a veteran securities attorney representing investors and financial professionals nationwide in securities investigations and arbitrations. Have a question? Email him at mja@sallahlaw.com, call his office at 212-509-6544, or visit The Securities Lawyer
Mark Astarita is a nationally recognized securities attorney, who represents investors, financial professionals and firms in securities litigation, arbitration and regulatory matters, including SEC and FINRA investigations and enforcement proceedings.
He is a partner in the national securities law firm Sallah Astarita & Cox, LLC, and the founder of The Securities Law Home Page - SECLaw.com, which was one of the first legal topic sites on the Internet. It went online in 1995 and is updated daily with news, commentary and securities law related links.
