SEC nears end of case against 'no show' financial adviser

(Reuters) - The U.S. Securities and Exchange Commission on Monday is to wrap up its case against a financial adviser who refuses to defend herself in the agency’s in-house enforcement proceeding, citing constitutional issues.

A sign for the Securities and Exchange Commission (SEC) is pictured in the foyer of the Fort Worth Regional Office in Fort Worth, Texas June 28, 2012. Picture taken June 28, 2012. REUTERS/Mike Stone

Dawn Bennett, chief executive officer of Bennett Group Financial Services LLC., in Washington, DC, and her lawyers have skipped the proceeding, which began last Wednesday and ends on Monday, following testimony from a final SEC witness.

The SEC filed civil charges against Bennett last year alleging that she used her paid radio program to grossly inflate the amount of assets her firm managed and exaggerate investment returns. Bennett has denied the allegations.

The unusual move by Bennett and her lawyers of not showing up is part of their strategy to challenge the SEC’s use of its in-house courts in enforcement proceedings, her lawyers say.

Bennett sued the agency in a Maryland federal court in October. Her lawsuit is among a growing number that have challenged the constitutionality of how the SEC appoints its administrative law judges.

Critics also say the proceedings deprive defendants of protections they enjoy in federal court, such as the ability to take depositions. They also say the SEC’s judges, who are on the agency’s payroll, are biased toward the agency.

The SEC declined to comment.

Bennett’s lawyers say she should not have to participate in the proceeding until the federal court rules in her case. If she did, she would take part in an unconstitutional proceeding and risk defending herself twice: once in the current proceeding and again after the court decides the constitutional issue in her case.

Nonetheless, the plan to let SEC end its case without a word in Bennett’s defense has drawn barbs from lawyers who say it can compound an already bad problem by leading to a judgment against her.

“This is the biggest mistake that you can make,” said Columbia Law School professor John Coffee.

Bennett, however, could appeal such a judgment, raising the same constitutional arguments. The strategy was “diligently researched,” said Gregory Morvillo, Bennett’s New York-based lawyer.

“We knew that there could be short-term difficult times, but we’re hoping for long-term victory,” Morvillo said.

In December, Bennett failed to convince the federal court to stay the SEC’s proceeding. A federal appeals court and SEC administrative law judge also denied Bennett an emergency stay while the court weighs the constitutional questions.

The case is In the Matter of Bennett Group Financial Services LLC and Dawn Bennett, Administrative Proceeding No. 3-16801.

Reporting by Suzanne Barlyn; Editing by Dan Grebler