In an April 20, 2010 order (here), Central District of California Judge Stephen V. Wilson granted the motion of the SEC to dismiss the suit brought against the agency by Madoff investors' under the Federal Tort Claims Act.
The investors had alleged that the SEC "owed a duty of reasonable care to all members of the general public" and that the agency's negligent acts and omissions "caused Madoff's scheme to continue, perpetuate and expand," alleging specifically that the SEC "failed to terminate Madoff's Ponzi scheme despite multiple opportunities to do so."
The SEC moved to dismiss arguing that the court lacked jurisdiction over the FTCA claims, due to the statute's "discretionary function exception," which bars federal courts from adjudicating tort actions arising out of federal officers' discretionary acts.
Judge Wilson said that the plaintiffs' allegations "identify decisions that, in hindsight, could have and should have been made differently," while others "reveal the SEC's sheer incompetence." However, Judge Wilson also found that the complaint lacks "any plausible allegation revealing that the SEC violated its clear, non-discretionary duties." Judge Wilson granted the motion to dismiss, but did grant the plaintiffs 30 days leave to amend their complaint to attempt to allege that "the SEC failed to conform to its mandatory duties."
It won't help them overcome the jurisdictional hurdle, but the plaintiffs undoubtedly will be tempted to allege in their amended complaint that at the same time the agency failed to investigate Madoff, senior SEC enforcement department attorneys were spending up to eight hours a day viewing pornography on their work computers.
Read Cornerstone Releases Study of 2009 Securities Lawsuit Settlements in its entirety at D&O Diary, a blog by Kevin LaCroix.