No.

10-1186

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

John Gardner Black )

)
v. )
)
Securities and Exchange Commission )
("Commission") )

MOTION FOR LEAVE OF COURT

TO FILE A SUPPLEMENT TO
APPELLANT'S REPLY BRIEF

Petition for Review of Respondent Securities Exchange Commission Denial for Reinstatement

_______________________________
John G. Black, Pro Se
1446 Centre Line Road
Warriors Mark, Pa 16877
814-632-8631
jblack010@gmail.com
 THE MOTION

Appellant John Gardner Black hereby requests that this Court grant him leave to file a

Supplement to Appellant's Reply Brief. Black is requesting this because The Wall Street Journal

on March 12, 2011 published an article that may have bearing on this case.

Therefore, Black is requesting that this Court take judicial notice of the published account

that the Securities Exchange Commission may have determined that the accounting practices of

Lehman Brothers are consistent with accounting practices. Because of that determination the

principal of Lehman remain active in the securities industry.

As explained in the Supplement to Appellant's Reply Brief, those accounting practices, if

applied equally to Black would allow for his reinstatement. Therefore, Black requests that this

Court grant him leave to file the supplement.

March 17, 2011 Respectfully Submitted,

John G. Black
 No. 10-1186

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

John Gardner Black )

)
v. )
)
Securities and Exchange Commission )
("Commission") )

SUPPLEMENT TO
APPELLANT'S REPLY BRIEF

Petition for Review of Respondent Securities Exchange Commission Denial for Reinstatement

_______________________________
John G. Black, Pro Se
1446 Centre Line Road
Warriors Mark, Pa 16877
814-632-8631
jblack010@gmail.com
 TABLE OF CONTENTS

Introduction ...............................................................................1

Summary of the question: If the accounting practices of Lehman

Brothers are permitted, the SEC's failure to reinstate Black is abusive.

The Repo 105 Transactions......................................................2

The stated purpose of the transactions was to misrepresent

the balance sheet to investors.

Comparison to this Case...........................................................3

Contrasting Lehman's case with the unproven allegations by the

Commission in this case.

Conclusion..................................................................................5

The Commission's refusal to reinstate Black is "arbitrary and

capricious" and therefore abusive.
Introduction

On March 12, 2011, the Wall Street Journal published an article titled

"Lehman Brothers Probe Hits Hurdles", authored by Jean Eaglesham and Liz

Rappaport.

The article states that the Securities Exchange Commission ["SEC"] is

deciding whether to take enforcement action against the executives of Lehman

Brothers for "Repo 105" transactions. The article states "...SEC officials generally

have concluded that the transactions were consistent with accounting standards."

[Addendum Pg 1, Wall Street Journal, March 12, 2011]

If the "Repo 105" transactions undertaken, with the knowledge of Lehman's

executives, for the express intent of modifying the balance sheet of Lehman so as

to artificially enhance the stockholder's equity as a percentage of the balance sheet,

are "consistent with accounting standards", then how is Black's representation of

the fair value of the Collateralized Investment Agreement ["CIA"], utilizing a pool

of assets with a yield of 14%, a violation of the same regulations?

1
The "Repo 105" Transactions

Lehman Brothers engaged in multiple transactions, named "Repo 105", in

which they sold assets of the company to investors with the understanding that the

assets or "similar" assets would be reacquired by Lehman after a period of time,

usually associated with the end of a quarter. What was unusual about the "Repo

105" trade was that Lehman booked the repurchase agreement as a sale, thereby

removing the same number of dollars from both the asset side and liability side of

the balance sheet. [Addendum Pg 16, Bankruptcy Report] Because Lehman

engaged in the "Repo 105" transaction, they were able to present an appearance of

a firm with greatly reduced leverage. From the transcript of the quarterly earnings

call for Lehman on June 10, 2008:

R. Fuld, Chairman of Lehman: "Regarding our balance sheet, we reduced

our gross assets by $147 billion over the quarter...." [Addendum, Pg 5,
Transcript]

Ian Lowitt, Lehman CFO: "Turning now to leverage, we reduced our gross
assets by $147 billion -- from $786 billion to $639 billion -- in the second
quarter and we reduced net assets by $70 billion -- from $397 billion to $327
billion. As a result, we reduced our gross leverage from 31.7X times to
24.3X at May 31, and we reduced net leverage from 15.4X to 12X ...."
[Addendum, Pg 5, Transcript]

Guy Moszkowski, Analyst, Merrill Lynch: "Were the sales pretty much
ratably spread over the quarter, or were they more skewed toward either the

2
 earlier or the latter part of the quarter?" [Addendum, Pg 8, Transcript (Italics
added for emphasis)

Lowitt: "They were spread over the whole quarter. I mean, it was a focus of
the entire firm to de-lever through the course of the quarter." [Addendum, Pg
8, Transcript]

This wasn't true at all. According to the bankruptcy examiner's report, $50

billion in alleged "sales" were actually repos timed to reduce the balance sheet for

exactly the period necessary for earnings reporting. [Addendum, Pg 17,

Bankruptcy Report, footnote 2852]

The purpose of the Repo 105 trade was to enhance the appearance of

Lehman 's stability and to bolster the stock price by reducing the reported leverage

employed by the firm, according to Anton R. Valukas, Examiner for the

Bankruptcy Trustee. [Addendum, Pg 30, Bankruptcy Report] Mr. Valukas went on

to state that there was a "colorable cause of action" against the Lehman officers.

Comparison to This Case

This case has two components. The first is the allegation of fraud by an

investment adviser, violation of 15 USC § 80b-6. Black has always maintained the

3
advice he gave, that the Collateralized Investment Agreement ["CIA"] was being

acquired at fair value, was correct. The SEC has never disputed that fact.1

However, Black does concede that he did not divulge his method of valuing

the CIA as well as the underlying assets of Financial Management Sciences'

["FMS"] to his clients and possibly he should have done so. There has been no

allegation of a fraudulent transaction, so it is hard to see how this qualifies as

fraud, but there is no requirement in the Investment Advisers Act that a transaction

must be alleged.

Without bogging this Court down in the minutia of securities laws, if the

SEC determines that the officers of Lehman did not have a duty to disclose to the

investing public that the liquidation value of the assets and liabilities of Lehman

Brothers had been deliberately managed to conceal the amount of leverage

employed by the firm at the same time they are refusing to reinstate Black as an

1
As for the SEC's allegations of violations of the Securities and the Exchange
Acts, 15 USC §§ 78j(b) and 77q(a), they are not relevant in this case since there
was no transaction in the CIA at other than fair value, a requirement for such
allegations to be valid. If the Commission is holding that deliberate
misrepresentation of the assets and liabilities of Lehman Brothers is not a violation
of the Securities and Exchange Acts, then clearly Black's representation of the
value of a pool of FMS' assets, pursuant to a mathematical model instead of
liquidation value, and used to secure the CIAs outstanding is also not a violation.

4
adviser, then, by logical extension, the SEC is applying its regulations in an

inconsistent and capricious manner, which is abusive.

Conclusion

In the instance of Lehman, there appears to be, according to the Bankruptcy

Trustee, a deliberate attempt to mislead the investors. It is the trustee that has

stated that there is a colorable basis for bringing an action against the executives of

Lehman Brothers.

In this case, even the SEC has not alleged that Black misrepresented the

value of the CIA. The sole basis for their action was that Black did not disclose,

not the value of the CIA, but the liquidation value of a security not directly owned

by the clients. Fourteen years after complaining that Black should have disclosed

the forced liquidation value of FMS' assets, causing $70 million in losses to his

clients, the Commission is debating whether to bring suit against those who

deliberately misrepresented the assets and liabilities of a publicly traded

corporation because they may not have violated "current accounting standards" and

possibly they did not have a duty to disclose.

5
 The court is requested to take judicial notice of the fact that the SEC is

undecided whether to prosecute people who deliberately "massaged" Lehman's

balance sheets using "repurchase agreements" to fictitiously give a publicly traded

company the appearance of higher per share asset value and deceiving the public

out of millions while they took huge "bonuses" for doing so, thus leaving those

people free to continue to engage in the securities business as a profession while

denying reinstatement to Mr. Black, whom they never took to trial and whose

unproven "wrongful conduct" was to collateralize investments of 49 municipal

entities (not the "public") with investments actually earning 14% per annum by

using formulae now sanctioned by the SEC. Seems kind of incongruous, and just

plain wrong, doesn't it?

Lehman lost over $200 billion of investor funds partially by engaging in

transactions that were designed to overstate the equity position of the corporation.

The SEC alleged that Black overstated the value of a security his customers did not

own, but was used to assure the contractual elements of a security his customers

did own. If the accounting practices of Lehman "... were consistent with

accounting standards...", the accounting practices Black followed must also be

6
"...consistent with accounting standards..." and the failure of the Commission to

reinstate him is "arbitrary and capricious."

March 17, 2011 Respectfully Submitted,

______________________

John G. Black

7
 CERTIFICATE OF SERVICE

I hereby certify that two true and correct copies of this filing of:

SUPPLEMENT TO
APPELLANT'S REPLY BRIEF

Was sent to:

Christopher Paik
Securities Exchange Commission
Mail Stop 8030-A
100 F. Street, N.E.
Washington, DC 20549

Via first class mail, postage prepaid on March 17, 2011.

8
 ADDENDUM

TABLE OF CONTENTS

Wall Street Journal Article of March 12, 2011 ......................1

Summary of June 16, 2008 Conference Call ..........................5

Report of Valukas to Bankruptcy Court ..............................10

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BUSINESS MARCH 12, 2011

Lehman Probe Stalls; Chance of No Charges

000001

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By JEAN EAGLESHAM And LIZ RAPPAPORT

The U.S. government's investigation into the collapse of Lehman Brothers Holdings Inc. has hit daunting hurdles
that could result in no civil or criminal charges ever being filed against the company's former executives, people
familiar with the situation said.

In recent months, Securities and Exchange Commission officials have grown

increasingly doubtful they can prove that Lehman violated U.S. laws by using an
accounting maneuver to move as much as $50 billion in assets off its balance sheet,
which made it appear that the securities firm had reduced its debt levels.

SEC officials also aren't confident they could win any lawsuit accusing former
Lehman employees, including former Lehman Chief Executive Richard Fuld Jr., of
failing to adequately mark down the value of the large real-estate portfolio acquired
in Lehman's takeover of apartment developer Archstone-Smith Trust or to disclose
the resulting losses to investors, according to people familiar with the matter.

People close to the investigation cautioned that no decision has been reached on
RICHARD FULD JR. whether to bring civil charges, adding that new evidence still could emerge.
Investigators are reviewing thousands of documents turned over to the SEC since it
began its probe shortly after Lehman tumbled into bankruptcy in September 2008 and was sold off in pieces.
Officials also have questioned a number of former Lehman executives, some of them multiple times, the people
said.

But after zeroing in last summer on the battered real-estate portfolio and an accounting move known as Repo
105, SEC officials have grown more worried they could lose a court battle if they bring civil charges that allege
Lehman investors were duped by company executives. The key stumbling block: The accounting move, while
controversial, isn't necessarily illegal. 000002

In a possible sign that the probe has slowed, the SEC hasn't issued a Wells notice to Lehman's longtime auditor,
Ernst & Young, according to people familiar with the situation. The firm had concluded that the accounting in
the Repo 105 transactions was acceptable. Wells notices are a formal signal that the SEC's enforcement staff has
decided it might file civil charges against the recipient.

An SEC spokesman declined to comment. In a statement, Ernst & Young said the firm stands "behind our work
on the Lehman audit and our opinion that Lehman's financial statements were fairly stated in accordance with
the U.S. accounting standards that existed at the time."

The snags are the latest sign of trouble for the SEC and other U.S. regulators trying to punish companies and
executives at the center of the financial crisis. So far, no high-profile executives have been successfully
prosecuted. Last month, a federal criminal investigation of former Countrywide Financial Corp. Chief Executive
Angelo Mozilo was closed without charges.

The U.S. government lost the only crisis-related case to go to trial when former Bear Stearns Cos. hedge-fund
managers Ralph Cioffi and Matthew Tannin were acquitted in November 2009 of criminal charges related to the
$1.6 billion collapse of their hedge funds.

If SEC officials decide not to take enforcement action against former Lehman executives, they likely would
escape criminal prosecution, too. The Justice Department "tends to follow the SEC's lead in these complex
financial cases, so reluctance to pursue civil charges generally means the federal agencies won't take a criminal
case," said Elizabeth Nowicki, a former SEC lawyer who is an associate professor at Tulane University School of
Law in New Orleans.

A spokeswoman for the Justice Department declined to comment on Lehman. In a statement, she said the
agency "will continue to root out financial fraud wherever it exists. When we find credible evidence of criminal

Finance & Accounting Jobs

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conduct—by Wall Street financiers, lawyers, accountants or others—we will aggressively pursue justice. However,
we can and will only bring charges when the facts and the law convince us that we can prove a crime beyond a
reasonable doubt."

A year ago, it looked as if the SEC and federal prosecutors had a road map to use against Lehman's former top
executives. Last March, the Repo 105 transactions were condemned by court-appointed examiner Anton R.
Valukas, who said in a report that they enabled Lehman to "paint a misleading picture of its financial condition."

In the transactions, Lehman swapped fixed-income assets for cash shortly before the securities firm reported
quarterly results, promising to buy back the securities later. The cash was used to pay down the company's debts.
Emails sent by executives at the company referred to Repo 105 as a "drug" and "basically window dressing."

Mr. Valukas concluded there were "colorable," or credible, legal claims against Ernst & Young, Mr. Fuld and
former finance chiefs Ian Lowitt, Erin Callan and Christopher O'Meara.

All four former Lehman executives have been scrutinized by the SEC, according to people familiar with the
matter. Their lawyers didn't respond to calls seeking comment. They previously have denied any wrongdoing
related to Repo 105.

A December lawsuit against Ernst & Young by soon-to-depart New York Attorney General Andrew Cuomo drew
heavily on Mr. Valukas's findings. Mr. Cuomo, who became New York's governor in January, criticized the Repo
105 transactions as a "house-of-cards business model, designed to hide billions in liabilities in the years before
Lehman collapsed."

Mr. Cuomo's successor, Eric Schneiderman, is "fully committed" to pursuing the case, a spokesman said. Ernst
& Young has vowed to vigorously defend itself against accusations that the maneuver violated generally accepted
accounting procedures.

In contrast, SEC officials generally have concluded that the transactions were consistent with accounting 000003
standards, according to people familiar with the situation.

And agency officials aren't convinced that Lehman shareholders suffered material harm, since executives were
trading one type of highly liquid asset for another, these people said. They said the SEC would face a far lower
bar if Lehman had converted illiquid or damaged assets, such as Archstone's real-estate holdings, into cash
using Repo 105.

Mr. Fuld and other former executives could face charges of making misleading statements about the company's
health before it sank. That likely would be an uphill battle for the government, according to people familiar with
the matter, partly because the executives relied on legal and accounting opinions.

British law firm Linklaters LLP signed off on the Repo 105 transactions, all done through the securities firm's
European arm. Linklaters declined to comment.

SEC investigators also have looked for evidence that Lehman overvalued positions held by Archstone, which it
acquired in 2007. SEC officials aren't convinced, though, that they can build a strong enforcement action around
such claims. In his report, Mr. Valukas wrote that he didn't find "sufficient evidence to support a colorable claim
for breach of fiduciary duty in connection with any of Lehman's valuations."

It isn't clear what the Lehman executives have said to SEC officials during the probe. Last year, Mr. Fuld told
lawmakers he had "absolutely no recollection whatsoever of hearing anything" about Repo 105 at the time of the
transactions. Lehman's demise was caused by "uncontrollable market forces" and the U.S. government's
unwillingness to rescue the firm, he said.

Beyond the Crisis

Status of enforcement actions against some of the highest-profile names of the financial crisis

3 of 4 000003 3/14/2011 5:12 PM

Lehman Probe Stalls; No Charges a Possibility - WSJ.com http://online.wsj.com/article/SB10001424052748703597804576194871...

Executive and SEC Justice Department N.Y. Attorney

company General
Joseph Cassano, Decided last year not to file Decided last year not to No action
American charges file charges
International Group
Fabrice Tourre, Securities fraud charges filed in No action No action
Goldman Sachs April 2010
Group
Ralph Cioffi and Securities fraud charges filed in Acquitted in Nov. 2009 of No action
Matthew Tannin, June 2008 criminal charges
Bear Stearns
Angelo Mozilo, He agreed in Oct. 2010 to pay Investigation closed No action
Countrywide $67.5 million to settle fraud and without filing charges
Financial insider-trading charges
Kenneth Lewis and No action against individuals. No action Civil lawsuits
Joseph Price, Bank Bank of America agreed to pay alleging fraud
of America $150 million to settle fraud filed Feb. 2010
charges last year
Gary Crittenden and The two men agreed to pay fines No action No action
Arthur Tildesley Jr., totaling $180,000 to settle fraud
Citigroup charges last year
Lee Farkas, Taylor, Fraud charges filed in June 2010 Arrested and charged No action
Bean & Whitaker with fraud in June 2010.
Mortgage Trial starts in April.

Write to Liz Rappaport at liz.rappaport@wsj.com

Copyright 2011 Dow Jones & Company, Inc. All Rights Reserved
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www.djreprints.com 000004

4 of 4 000004 3/14/2011 5:12 PM

 SUMMARY OF THE TRANSCRIPT OF THE QUARTERLY CONFERENCE CALL
LEHMAN BROTHERS

SOURCE: Seeking Alpha

Internet site: http://seekingalpha.com/article/81545-lehman-brothers-f2q08-qtr-end-5-31-08-
earnings-call-transcript

Call conducted June 16, 2008 at 10:00 AM

Lehman Brothers Holdings Inc. (LEH) F2Q08 Earnings Call June 16, 2008 10:00 am ET

Operator

Good morning and welcome to the Lehman Brothers second quarter earnings conference call.
(Operator Instructions) I would now like to turn the call over to Mr. Ed Grieb, Director of
Investor Relations. Sir, you may begin.

...

Richard S. Fuld Jr.

000005
...

Regarding our balance sheet, we reduced our gross assets by $147 billion over the quarter, which
exceeded the targets that we set. We also raised $10 billion of tangible equity since the beginning
of the second quarter. Pro forma, we now have $33 billion of tangible equity, so we are in a
position today to support our clients in these challenging markets.

...

Ian T. Lowitt

Thanks, Dick. Good morning and thank you for joining us today. On last Monday’s pre-
announcement, we previewed with you the --

Ian T. Lowitt

...

Turning now to leverage, we reduced our gross assets by $147 billion from $786 billion to $639
billion in the second quarter and we reduced net assets by $70 billion from $397 billion to $327
billion. As a result, we reduced our gross leverage from 31.7 times to 24.3 times at May 31st,
and we reduced net leverage from 15.4 times to 12 times prior to the impact of last week’s

000005
capital raised. Including the new capital, our gross leverage declined by approximately four turns
and our net leverage by about two turns.

Our deleveraging included a reduction of assets across the firm, including residential and
commercial mortgages, real estate held for sale, and acquisition finance.

Transcript of the Question and Answer Session

...

Operator

Our next question comes from Glenn Schorr. Mr. Schorr, please announce your company name.

Glenn Schorr - UBS

It seems like we’re at the point now where okay, capital and liquidity ratios are fine but you still
have some large illiquid positions. I just want to make sure I heard you correctly; you were 000006
saying you’re still interested in bringing down the overall size of the residential and commercial
books? I just have a follow-up on that. I just want to make sure I heard that part correct.

Ian T. Lowitt

We want to diversify our balance sheet. We are committed to bring down our commercial
position. As I said, we intend to bring it down substantially but we want to bring it down in a
measured way. And so the combination of those two items, we continue to -- we intend to
continue to bring down.

Glenn Schorr - UBS

Okay. And then in terms of the --

Richard S. Fuld Jr.

I would only add to that; we have finished in principal with the deleveraging but that does not
mean that we are finished with changing the mix of the assets.

Glenn Schorr - UBS

000006
I’m with you, Dick. I appreciate that. In terms of the actual sales that took place during the
quarter in both the residential and commercial books, could you make any comment in terms of
vintages sold versus your last disclosure at the conference in May?

Ian T. Lowitt

I think, as you can see by the numbers, the sales were across sort of all asset classes, across all
the types. I don’t have the details on hand of what the specifics were with regard to vintage but I
don’t believe there was any concentration with regard to that, and just given the size of the sale,
that wouldn’t be consistent with just the sizing.

So we -- I don’t have specific details about which vintage but I can assure you that it was
extremely broad-based across all assets and across all vintages.

Glenn Schorr - UBS

That’s good enough. The rating agencies did their thing last month, or a couple of weeks ago,
and I think from your last Q it’s had one more notch downgrade from here would require $5
billion plus of additional collateral. They didn’t remove the negative outlook. I’m assuming
that’s just an earnings power thing on their part, but can you just talk about how important this is
to Lehman, if everything is done that you need to do to avoid that? Given your comments on
liquidity and capital, I would think so but just curious to get your thoughts.

Ian T. Lowitt 000007

I think that from the debt-holders’ perspective, the $6 billion of capital raise has improved their
position very substantially. You are seeing that coming through in the CDS levels.

With regard to the rating agencies, I believe that their focus is on the earnings power going
forward. They are very comfortable with the capital I took you though what the capital ratios
were, which I think we’ll see when all the Qs come out but our expectation is that pre the capital
raise, we were going to be among the strongest and post the capital raise, we certainly are
confident that will be the case. So we don’t believe that there will be any issues around capital.
You’ve got a sense of just how strong our liquidity position is and so I think from a debt-holders’
perspective and the rating agencies’ view of that, their real focus is on the power of the franchise
to generate high ROEs going forward.

Glenn Schorr - UBS

Okay. And last one for Dick, we’ve talked about this in the past but given everything that the
industry has gone through, do you expect anything in terms of material changes from the
regulatory standpoint from what we might see from disclosure and pricing, the leverage and
capital that the industry is allowed to run at? Just something at the very highest level would be
interesting.

Richard S. Fuld Jr.

000007
I think it’s actually too early to comment on that but I would say obviously with the fed opening
the window to the investment banks, I think there’s been a lot of conversation about that,
whether it’s from the fed or whether it’s from treasury. And of course, I have a different
perspective, obviously, having a seat on the New York Federal Reserve Board.

By definition, if they are going to give the investment banks access to the window, I for one do
believe they have the right for oversight. What that means though particularly as far as capital
levels or asset requirements, way too early to tell. I would love to give you an answer on that but
you asked for a high-level view. That’s probably higher than you wanted but --

Glenn Schorr - UBS

That’s all right, Dick. I appreciate it. Thanks very much.

Operator

Our next question comes from Guy Moszkowski.

Guy Moszkowski - Merrill Lynch

Good morning. Just a follow-up on the question about the asset sales and whether there were
vintage concentrations or anything like that. How about with respect to timing? Were the sales
pretty much ratably spread over the quarter or were they more skewed toward either the earlier
or the latter part of the quarter? 000008

Ian T. Lowitt

They were spread over the whole quarter. I mean, it was a focus of the entire firm to delever
through the course of the quarter. That was obviously a focus which shifted attention to some
extent and I think that impacted the quarter in some ways, but it was even across the whole
quarter so there was no concentration in terms of the timing. And that was true across all of the
elements, so that would be true with resi as within commercial.

Guy Moszkowski - Merrill Lynch

Okay. You anticipated the next part of the question, so thanks for that. Why does the mark-to-
market seem, looking at the regional breakdown of revenues, to be so disproportionately
concentrated in Europe and the Middle East, just given the size of the negative net revenue in
that region versus say the U.S.?

Ian T. Lowitt

I think actually the impact in Europe I think in part is as a result of some of the trading that we
talked about as one of the unusual factors, and I think that’s probably more of a determinant of
the European number than the fact that the write-downs were concentrated there. I don’t believe
the write-downs were concentrated in Europe.

000008
Guy Moszkowski - Merrill Lynch

And just to pursue the European piece for a minute, given that the whole loan sales in Europe
were, or the whole loan balance in Europe came down by about $1.4 billion and the securities
balance rose by 1.2, does that reflect some restructuring of whole loans into securitized assets to
facilitate later sales? Or was it actual portfolio turn?

Ian T. Lowitt

Actually, you picked up on a really good point. It was a transfer from whole loans to securities
but it was to improve the liquidity characteristics, and that was really what drove that. As part of
our efforts post Bear, we talked about our efforts to convert unencumbered collateral which was
100% cash capital into securities which were available for financing. One of the things we did do
in Europe was that switch, so it didn’t shift risk but it certainly changed the funding
characteristics of the position.

...

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The full report is available online at : http://lehmanreport.jenner.com

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