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'Rambo' vs. 'blind eye' regulators: Ex-Qwest exec battles SEC
by
Greg Avery
June 19, 2010 A former Qwest financial reporting director wants a federal judge to sanction the
The SEC, in a response file Friday, labeled the sanction request
the "latest Rambo tactics" used by James Kozlowski in a
"scorched earth" litigation strategy that's included
unsuccessful ethics complaints against SEC lawyers filed with
the
The SEC is suing Kozlowski and four other employees of
Qwest Communications International Inc.
(NYSE: Q), including ex-CEO Joseph Nacchio, on allegations of
misrepresenting billions worth of business at the Denver-based
telecom prior to the 2001 collapse of its stock price.
Attorneys for Kozlowski filed motions seeking to have the
federal agency pay all their client's costs and legal fees,
saying he never should've been included in the case, but the SEC
hasn't moved to dismiss him from its allegations.
The motion argues that the SEC:
• Included Kozlowski, in its initial 2005 civil complaint, in
its allegation that a $3 billion fraud had been committed at
Qwest between 1999 and 2002 despite the fact Kozlowski left
Qwest in 2000. The SEC narrowed the allegation in an amended
complaint but has kept the original language in its 2005 press
release about the lawsuit that remains on the SEC website.
• Claimed Kozlowski was responsible for accounting performed on
fiber-optic capacity leases that the SEC says was fraudulent.
Two outside auditing firms repeatedly approved the accounting as
valid, as did Qwest executives who had direct contact with Wall
Street, Kozlowski's lawyers argue.
"The SEC turned a blind eye to the facts and law in bringing
this case against Mr. Kozlowski," the complaint concluded. "A
message needs to be delivered to the SEC that it cannot act so
cavalierly."
The SEC, in its reply, noted that the court dismissed some
allegations against Kozlowski in March. Losing those legal
arguments doesn't amount to having acted in bad faith, something
which sanctions require, the SEC argued.
"In fact, if anyone has abused the court in this case and acted
vexatiously, it is the defendant," the SEC wrote.
Most of Kozlowski's argument for sanctions "appears to rest on
facts showing that the [SEC] removed a confusing allegation from
its complaint over four years ago, and that throughout the
litigation it provided additional explanation to him of the
charges against him," the SEC replied.
No ruling has yet been made on the motion.
The SEC's case against Kozlowski and the other former Qwest
officials is scheduled for trial later this year.
A separate, criminal case against Nacchio will be resolved
first. Nacchio is scheduled to be resentenced Thursday on 19
insider trading felonies.
Nacchion originally was sentenced to spend six years in prison,
pay $19 million in fines and forfeit $52 million; his attorneys
are asking that his prison sentence be reduced to three years
and five months and that his fine be cut to $3.6 million.
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