Will he or won’t he?
While it’s unclear whether Shawn Carter, known professionally as Jay Z, will be in court Tuesday afternoon before U.S. District Court Judge Paul Gardephe in Manhattan, his attorneys have filed a court document stating that the Securities and Exchange Commission is “overreaching by trying to compel Mr. Carter to testify without reasonable limitation.”
The matter came up when the SEC last week filed for a court order compelling Carter to comply with a subpoena. It wants Carter to answer some questions in connection with the purchase by Iconix Brand Group of the apparel brand he founded, Rocawear.
The SEC’s application included documentation that indicated several requests were made, and that Carter has not yet complied. E-mails between lawyers indicated a request by Carter to limit testimony to two hours, and then to four. The SEC said that’s not enough time to ask the questions it wants to ask. The government agency said it is seeking Carter’s testimony to inquire about, “among other things, Carter’s joint ventures with Iconix.”
The SEC has been probing alleged accounting irregularities at Iconix Brand Group since 2015. Iconix said in November 2015 that it would need to file restatements to certain financial reporting periods.
One area the SEC appears to be focused on is how Iconix accounted for its Rocawear business for certain reporting periods. Iconix acquired Rocawear in 2007 for $204 million. According to the SEC’s court filing last week, Iconix in March 2016 said it would write down $169 million in connection with Rocawear, and that in March of this year it further wrote down $34 million. The SEC said after the acquisition, Carter and Iconix “maintained publicly disclosed partnerships related to the Rocawear brand.”
The SEC did emphasize in its application to compel Carter’s testimony that the enforcement action “does not reflect a determination by the SEC or its staff that Carter has violated provisions of the federal securities laws at issue in the investigation.”
In Monday’s response, Carter’s lawyers said, “Although Mr. Carter has offered to supply a full day of testimony, the SEC has insisted upon more, thereby necessitating the instant opposition. In reality, the SEC has no legal warrant to insist upon more.” They also said that the SEC can’t ask for judicial compulsion for multiple days of testimony when its own subpoena had requested a single day for questioning.
The court document filed by Carter’s lawyers also said that the SEC has issued nine subpoenas to Carter, his colleagues and affiliated businesses that have produced “troves of documents,” almost 11,000 pages, and that the chief operating officer of two of those businesses — Roc Nation and Carter Enterprises — who is also closely connected to Carter, “has already given sworn testimony to the SEC for a full day.” They also told the court that Carter is concerned that the SEC’s request is “driven more by governmental fascination with celebrity and headlines than by any proper investigative purpose.” They further said that Carter “never had any role in Iconix’s financial reporting.”
The court document said compliance would be unreasonably burdensome because Carter’s testimony would be at SEC headquarters in Washington, D.C., for an unlimited number of days, which would be a hardship on Carter, who is also preparing for a 45-date global tour that’s about to begin.
Moreover, they said that some of the testimony the SEC seeks from Carter — such as the value of the Rocawear trademark and the Carter-affiliated companies that did business with Iconix — involve information that’s already in documents submitted to the SEC, has been elicited from testimony from the chief operating officer of Carter’s two businesses, or could be requested of Iconix. And they also suggested that, instead of Carter, for the financial information the SEC seeks, it “could take the testimony of Kashyap Bakhai, who was heavily involved in the financials of the transactions at issue, and Ronnie DeMichael, the chief financial officer of Roc Apparel Group LLC.”
A court hearing before Gardephe is scheduled for Tuesday at 3 p.m.