Full opinion text
MEMORANDUM OPINION AND ORDER ROBERT W. PORTER, District Judge. This action is currently before the Court on Plaintiff’s motion for a preliminary injunction. Jurisdiction is predicated upon 12 U.S.C. § 3416, and 28 U.S.C. § 1331. Plaintiffs seek injunctive relief against the Defendant Securities & Exchange Commission (“SEC”) to enjoin the agency from violating Plaintiffs’ rights under the Right to Financial Privacy Act, 12 U.S.C. §§ 3401, et seq. Plaintiffs instituted this action originally with the filing of a motion to quash an SEC subpoena pursuant to 12 U.S.C. § 3410. Prior to a disposition of that controversy, however, the SEC withdrew the subpoena in question. Subsequently, Plaintiffs filed the complaint for injunctive relief which is currently in issue. As stated above, Plaintiffs predicate their claims upon the Right to Financial Privacy Act (“RFPA”), a statute enacted by Congress in 1978, and made applicable to the SEC as of November 10, 1980. As a consequence of the relative youth of the statute, this action presents the Court with novel issues of law concerning the appropriate construction of the Act. The facts of the case, as I have found them, are recounted below in extensive preliminary findings of fact. Prior to any discussion of the factual scenario in which this action arises, however, a review of the history of this litigation is appropriate. In January and February of 1981 the SEC issued certain requests for financial information to financial institutions to which the Plaintiffs in this action are “customers” as that term is defined by the RFPA. One such request was a subpoena duces tecum issued to First National Bancshares dated February 19, 1981. On March 2,1981, after consultation with the SEC the Plaintiffs filed a motion to quash the subpoena with this Court alleging various deficiencies with respect to that subpoena. The SEC subsequently withdrew the subpoena. Thereafter, Plaintiffs withdrew their motion to quash, and on March 24th, 1981 filed their first original complaint for injunctive relief. In that complaint, Plaintiffs asserted three grounds for relief. First, they claimed that the SEC, in the course of its investigation, was exceeding the scope and purpose of the investigatory order issued by the Commission. Second, Plaintiffs asserted that the SEC, pursuant to its investigation, was intruding upon the exclusive jurisdiction of the Commodities Futures Trading Commission (“CFTC”). Finally, Plaintiffs alleged violations of the RFPA with respect to the SEC’s requests for financial information directed at banking institutions. Simultaneous with the filing of the original complaint, Plaintiffs moved for a temporary restraining order, and for a hearing on their application for a preliminary injunction. On March 31st, after reviewing the SEC’s response to Plaintiffs’ application for a temporary restraining order, the Court entered an order enjoining the SEC from taking any further testimony from William Herbert Hunt, Nelson Bunker Hunt, and James L. Parker in connection with its investigation. In addition, the Court directed the SEC to expedite the filing of its 12(b) motion to dismiss the action. On April 6th, 1981 the SEC filed its motion to dismiss all three grounds for relief asserted by Plaintiffs. The Commission made its motion pursuant to Rule 12(b)(1) and (6) asserting that, since the agency’s requests for testimony and documents are not self-executing, and since the SEC had not moved to enforce any of its subpoenas or requests for testimony in federal court, the action was not ripe for judicial review and Plaintiffs had an adequate remedy at law. Concurrent with the filing of the SEC’s motion to dismiss, Plaintiffs filed a motion to extend the temporary restraining order then in effect. On April 9th, 1981, the Court issued an oral ruling from the bench granting the SEC’s motion to dismiss with respect to Plaintiffs’ claims that the SEC was exceeding the scope of its investigatory order and intruding upon the exclusive jurisdiction of the CFTC. The basis for the ruling was that these claims were not ripe for judicial review, being as they were preenforcement claims brought during a pending agency investigation. The Court, however, retained jurisdiction over Plaintiffs’ claims under the RFPA. Accordingly, the Court dissolved the temporary restraining order then in effect and entered another Order restraining the SEC from violating Plaintiffs' rights under the RFPA, and in particular, issuing “update letters” to financial institutions requesting further production of financial information without notices to Plaintiffs. A hearing on Plaintiffs’ application for a preliminary injunction was scheduled for April 20th, 1981, with expedited discovery during the interim. Subsequent to the April 9th, 1981 Order the SEC moved for a protective order staying discovery in this action. The Commission represented to the Court that it would consent to an extension of the April 9th, 1981 temporary restraining order (enjoining trie SEC from violating Plaintiffs’ rights under the RFPA), and sought certification for an interlocutory appeal of the Court’s Order denying the SEC’s motion to dismiss with respect to Plaintiffs’ claims under the RFPA. In response to the SEC’s motion, Plaintiffs applied for a protective order preventing the SEC from taking further testimony from Plaintiffs in connection with the SEC investigation. Plaintiffs noted that the Court had ordered expedited discovery with respect to this action, and that conflicting demands from the agency with respect to discovery in furtherance of the investigation would place a hardship on Plaintiffs, as well as the orderly disposition of this action. The Court heard the parties on the matter on April 14th, 1981, and the following day entered an order denying the SEC’s requests for a stay of discovery and certification for an interlocutory appeal. The Court stayed further discovery of Plaintiffs by the SEC pursuant to its investigation until the preliminary injunction hearing had been concluded. Expedited discovery proceeded as ordered but on or about April 17th, 1981, the SEC requested that the Court reschedule the preliminary injunction, consenting to an extension of the temporary restraining order then in effect as well as the temporary stay of discovery in force with respect to the SEC’s investigation. By written order of April 17th, 1981, the Court granted the SEC’s request. Beginning on April 22nd, 1981, the Court heard four days of testimony in connection with Plaintiffs’ claims under the RFPA. In addition, the parties have filed numerous depositions and attendant designations with the Court. Finally, on May 11th, 1981, the Court heard final arguments in the case and by May 21st, 1981, the parties had filed, proposed findings of fact and conclusions of law. In the interim, however, and prior to final arguments, Plaintiffs moved to amend their complaint. The SEC vigorously opposed the amendment, primarily on grounds that it was filed at the “eleventh hour” approximately a week after the evidence had been concluded and shortly before final argument. The Court concluded that the amendment should be granted for purposes of an eventual trial on the merits, but not in connection with Plaintiffs’ application for a preliminary injunction. As stated above, this action is before the Court on Plaintiffs’ application for a preliminary injunction. A preliminary injunction is an extraordinary remedy committed to the discretionary power of the district court. Compact Van Equipment Co. v. Leggett & Platt, Inc., 566 F.2d 952, 954 (5th Cir. 1978). This discretion must be exercised in light of four prerequisites for the issuance of such extraordinary relief: 1. a substantial likelihood that the movant will ultimately prevail on the merits; 2. a showing that the movant will suffer irreparable injury unless the injunction issues; 3. proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and 4. a showing that the injunction, if granted, would not be adverse to the public interest. See Foley v. Alabama State Bar, 648 F.2d 355, 358 (5th Cir. 1981); Compact Van, supra at 954; Canal Authority v. Callaway, 489 F.2d 567, 572-73 (5th Cir. 1974). The primary justification for the entry of a preliminary injunction is to preserve the trial court’s ability to render a meaningful decision on the merits. Canal Authority, supra, at 573. Further, the movant must clearly carry the burden of persuasion with respect to all of the prerequisites noted above. Id. In this action, the factor which is mainly in issue is the second one noted above— whether Plaintiffs have made a sufficient showing of irreparable injury which will occur in the absence of the entry of a preliminary injunction. I. PRELIMINARY FINDINGS OF FACT A. COMMENCEMENT OF THE INVESTIGATION As a result of the so-called “silver crisis” in the commodities futures market in 1979 and early 1980, the activities of Plaintiffs Nelson Bunker Hunt (“N. B. Hunt”), William Herbert Hunt (“W. H. Hunt”) and others involved in those markets became the subject of extensive investigation by several congressional committees and federal agencies, including the SEC and the Commodities Futures Trading Commission (“CFTC”). The SEC embarked upon a formal non-public investigation (“the SEC investigation”) pursuant to a March 27, 1980 Order Directing Private Investigation and Designating Officers to Take Testimony styled In the Matter of Bache Group, Inc., Nelson Bunker Hunt, William Herbert Hunt, HO-1233. The March 27 Order designates certain officers of the SEC who are empowered to conduct the investigation, and directs those officers to investigate possible violations of sections 10(b) and 15(c) of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. §§ 78j(b), o(c) and the rules promulgated thereunder. Specifically, the March 27 Order alleges as follows: 1. Bache Group, Inc. (“Bache Group”) is a Delaware corporation whose common stock is registered with the SEC pursuant to § 12(b) of the Exchange Act; 2. Bache, Halsey, Stuart, Shields,’ Inc. (“Bache”), a wholly owned subsidiary of Bache Group, is a broker-dealer registered with the SEC pursuant to § 15(b) of the Exchange Act; 3. N. B. Hunt and W. H. Hunt are shareholders of Bache Group; 4. In connection with transactions in the securities of Bache Group and other issuers, certain persons may have violated § 10(b) of the Exchange Act by virtue of certain statements, omissions or acts with respect to the financial position of Bache, and transactions between shareholders of Bache Group and/or Bache; and 5. Bache may have engaged in transactions in securities or may have induced or attempted to induce purchases and sales of securities at a time when it was not in compliance with the SEC’s net capital rules. Subsequently, on April 4, 1980, the SEC issued an Amended and Substituted Order broadening the scope of the investigation. In addition to the allegations set forth in the May 27 order, the Amended Order alleges as follows: 1. W. B. Hunt and W. H. Hunt, directly and indirectly beneficially owned over five percent of the outstanding common stock of Bache Group; 2. N. B. Hunt, W. H. Hunt and/or other members of their family had not filed a statement with the SEC pursuant to § 13(d)(1) of the Exchange Act and rules promulgated thereunder concerning their direct or indirect acquisition of beneficial ownership of more than five percent of the outstanding shares of common stock of Bache Group; 3. N. B. Hunt, W. H. Hunt, and other members of their family, as well as Hunt Mineral International, Ltd. (“HMIL”), and other corporations and entities directly and indirectly controlled by or associated with them, engaged in numerous transactions in securities, silver bullion, futures contracts for silver and other commodities which have resulted in, or may result in a. Bache and other broker-dealers being placed in a materially adverse financial condition, which may impact upon its customers, shareholders, investors, and others; b. actionable fraud pursuant to § 10(b) of the Exchange Act upon broker-dealers and corporations which file reports with the SEC concerning (1) the financial condition of Bache, other broker-dealers and corporations; (2) the ability of Bache, other broker-dealers and other corporations and entities to meet their financial and regulatory obligations; (3) the nature and extent of direct and indirect financial relationships of the Hunts, their family, and other corporations and entities associated with them with Bache and other broker-dealers and corporations; and (4) the ability and intent of the Hunts, their family, and corporations and entities controlled by or associated with them to meet present and future margin calls and other financial obligations to broker-dealers and corporations; and 4. Periodic and other reports filed with the SEC by Bache Group, broker-dealers, and corporations may not have fully and accurately reflected, the nature and extent of the transactions and relationships of Bache Group, Bache, and others with the Hunts, their family, HMIL and other corporations and entities controlled by or associated with them. The Amended Order cited possible violations of §§ 10(b), 13(a), 13(d) and 15(c) of the Exchange Act, as well as the rules promulgated thereunder, and designated certain named officers of the SEC to conduct the investigation. Finally, the Amended Order stated that the purpose of the investigation was to determine if the acts alleged had occurred or would occur, whether new rules or regulations should be promulgated, and to secure information for the basis of recommending new legislation. Since' April 4, 1980 to the present, the Amended Order has remained in effect without substantive amendment although it has been supplemented on several occasions by orders designating additional individuals as officers of the SEC investigation. In addition to the SEC investigation, Congress and other public agencies responsible for overseeing the various sectors of the financial community involved in the “silver crisis” have conducted inquiries into the circumstances surrounding the events out of which the SEC inquiry arose. The Subcommittee on Commerce, Consumer, and Monetary Affairs of the United States House of Representatives Committee on Government Operations, chaired by Benjamin F. Rosenthal, issued an extensive report of its hearings on the “silver crisis” (“Rosenthal Report”) in the spring of 1980. Similarly, the CFTC is conducting an investigation into the Hunts’ silver trading activities to determine if there have been violations of the Federal Commodities laws. B. STAFFING THE INVESTIGATION The SEC investigation is being conducted by a group of SEC employees known within the SEC as the “Bache Team”. Theodore A. Levine, Associate Director in the Division of Enforcement, was given-over all responsibility for the SEC’s Bache investigation. Levine reported directly to Stanley Sporkin, then Director of the Division of Enforcement. As part of his responsibilities, Levine supervises the activities of 40 to 50 employees of the Division of Enforcement, including investigations, litigation and various regulatory matters which arise in connection with the SEC’s activities. In addition, Levine is also involved in the general administration of the Division of Enforcement. Other staff members assigned to the “Bache Team” were selected from various branches in the Division of Enforcement. This is not a usual practice: ordinarily matters are staffed according to the branch structure of the Division of Enforcement. Kenneth G. Lay, a Branch Chief in the Division of Enforcement, was assigned to the investigation in April, 1980. Lay assumed day-to-day supervisory responsibility for the investigation although Levine, as Associate Director, had overall responsibility for the investigation. Lay reported directly to Levine. Lay has never been appointed as an Assistant Director of the Division of Enforcement and has never been instructed, either orally or in writing, to act as Assistant Director. His application for the position of Assistant Director was denied in 1980 based in part on his lack of sufficient supervisory experience. On or about January 27,1981, Gail Vance, a staff attorney within the Division of Enforcement, joined the Bache Team. Lay asked her to handle those matters pertaining to the investigation which concerned public financial institutions. She reported to Lay in this regard. The Supplemental Order designating Vance as an additional officer authorized to conduct the investigation is defective in that it refers to a March 28, 1980 Order of the SEC authorizing the investigation. The Order and Amended Order authorizing the investigation are dated March 27, 1980 and April 4, 1980 respectively. In addition to the original Supplemental Order designating Vance as an officer of the SEC for purposes of HO-1233, the official SEC files also contained a similar order dated February 27, 1981, likewise designating Vance as an officer in the investigation. During the week of March 16, 1981, however, Lay removed this order from the file and destroyed it. At this time Lay believed that the issue of Vance’s authorization to participate in the investigation pursuant to § 21(b) of the Exchange Act was “dead” because he believed the Plaintiffs’ original Motion to Quash, dated March 2, 1981 had been withdrawn. C. THE PLAINTIFFS Each of the named Plaintiffs in this action are individuals utilizing the services of financial institutions which have been the subject of SEC requests for information. In addition, there are two partnerships involving fewer than five individuals in which some of the Plaintiffs are partners, and which maintain accounts with financial institutions which have been the subject of SEC requests for information. Hunt International Petroleum Company of Canada (“HIPCO”) is a partnership in which Plaintiffs W. H. Hunt, N. B. Hunt and Lamar Hunt are the only partners. HIPCO is a “customer” as that term is defined in theRFPA, of the Royal Bank of Canada (“Royal Bank”). Hunt-Stephens is a partnership in which Plaintiff W. H. Hunt and another individual, Paul Stephens, are the only partners. Hunt-Stephens is a “customer” as that term is defined in the RFPA, of Republic National Bank of Dallas (“Republic”). The individual Plaintiffs are “customers” as that term is defined in the RFPA, of the following financial institutions: 1. W. H. Hunt-First National Bank in Dallas, (“First in Dallas”); First National Bank of Chicago, (“First of Chicago”); Republic; Citibank N.A. (“Citibank”); as a partner in Hunt-Stephens, Republic; and as a partner in HIPCO, Royal Bank; 2. Lamar Hunt — First in Dallas; Republic; First of Chicago; and as a partner in HIPCO, Royal Bank; 3. N. B. Hunt — -First in Dallas, Republic, First of Chicago; City Bank; and as a partner in HIPCO, Royal Bank; 4. Douglas H. Hunt — First in Dallas; 5. Houston B. Hunt — First in Dallas; 6. Albert D. Huddleston — First in Dallas. D. EARLY DEVELOPMENTS At the outset of the investigation, the SEC sought production of documents and records concerning the financing of the silver transactions discussed above and the financial condition of the entities providing the financing. The SEC also sought (1) to identify major participants in the financing, including the Hunts, registered broker-dealers, banks, corporations and securities and commodities exchanges, and (2) to elicit documentary and testimonial evidence establishing the magnitude of the financial exposure of broker-dealers and publicly held reporting companies as a result of the Hunts’ trading activities. The SEC served subpoenas duces tecum on the Hunts on April 18, 1980, calling for production of documents relating to their transactions and accounts with Bache and other registered broker-dealers which related to silver collateralized borrowing. After requesting and receiving from the Commission several extensions of time, the Hunts began to produce materials on or about May 14, 1980. The materials related to, among other things, the Hunts’ commodity trading accounts with broker-dealers registered with the SEC as well as similar accounts with futures commission merchants registered with the CFTC. The Hunts produced materials relating to loans from both publicly held and privately held banks, and to transactions between the Hunts and public and private corporations. The SEC’s investigation of the Hunts’ acquisition of more than 5% of Bache Group stock, and their failure to comply with Section 13(d) of the Securities Exchange Act in connection with those transactions, was one of the areas pursued independently of the rest of the investigation. Pursuant to subpoenas, the SEC took the investigative testimony of N. B. Hunt, W. H. Hunt and Charles Mercer, assistant treasurer of Hunt Energy Corp., for approximately one-half day each on July 29, August 22 and July 28, 1980, respectively. This testimony, on dates agreed to by the Hunts and their counsel, was held with the express understanding that the testimony was to cover only the Section 13(d) aspect of the investigation. The limited testimony by W. H. Hunt and N. B. Hunt has been the only testimony of Hunt family members taken in the investigation. The SEC and counsel for the Hunts expressly agreed that testimony on the other issues of the case — particularly those relating to the financing of their silver trading — would go forward at a mutually acceptable later date. In late December 1980, the SEC made efforts to voluntarily obtain information from the Hunts concerning overall financial exposure of broker-dealers and lending institutions as a result of loans to the Hunts and entities they control. On December 30, 1980, Lay sent a letter to Roger Goldburg, one of the attorneys for the Hunts, requesting information concerning the nature and amount of loans available and outstanding to the Hunts. In a letter dated January 12, 1981, Goldburg advised Lay that the information requested by Lay in his December 30, 1980, letter would not be provided by the Hunts, suggesting that much of the information could be compiled from documents already produced by the Hunts and from information provided by other individuals and entities. When Vance was assigned to the investigation, she was given responsibility by Lay to gather the facts that related specifically to the exposure of the banking institutions. Among other things, the SEC’s investigation was examining possible failures by certain public corporations, including bank holding companies, to report the risks posed by loans used to purchase or pay for obligations incurred in connection with the Hunts’ silver transactions. On January 28, 1981, Lay, Vance, Anthony Djinis and Judith Perlman, staff attorneys in the Commission’s Division of Enforcement assigned to the Bache Team, met with certain of the Plaintiffs’ attorneys, including Goldburg and Roderic Steakley, an associate of Goldburg’s law firm, at the headquarters office of the SEC. The meeting was held at the request of the Hunts’ counsel to discuss the SEC investigation generally and the scope of the matters to be covered in the testimony of N. B. Hunt and W. H. Hunt, which the SEC was seeking to complete. At the January 28, 1981 meeting, the Commission’s staff delineated the kind of information the SEC sought, and explained in detail the relationship of that information to both the SEC’s inquiry as set out in the formal order and the SEC’s jurisdiction generally. On .February 17, 1981, Djinis, Lay and Levine met with Ivan Irwin, one of Plaintiffs’ attorneys, at the headquarters office of the SEC. Levine explained once again that a principal focus of the investigation was the extent to which the Hunts’ activities had adversely affected the financial condition of broker-dealers and public companies. Levine assured the Hunts’ counsel that the SEC’s primary object was not to reconstruct the Hunts’ balance sheet, but to determine the extent of the Hunts’ silver-related liabilities, whether they were able to meet their obligations to registered broker-dealers and to publicly held companies, whether any material financial risk to those institutions had been fully disclosed and to gather information respecting possible securities violations. E. THE HEART OF THE MATTER 1. The “Abboud Consents”. In April of 1980 the SEC issued a subpoena duces tecum to the First Chicago Corporation calling for the production of all documents and records relating to the Hunts, as well as any transactions with respect to loans secured by silver or silver futures contracts. In addition the subpoena called for the production of documents and records relating to credit extended to certain brokerage houses. At that time, a Mr. A. Robert Abboud was Chairman of the First National Bank of Chicago. First Chicago Corporation is the parent holding company of First National Bank in Chicago. At some time subsequent to the issuance of the subpoena, Abboud was no longer Chairman of First in Chicago. As a consequence, the SEC issued a subpoena to Abboud which requested him to appear and give testimony related to the April, 1980 subpoena duces tecum. Abboud’s deposition was scheduled to take place on January 19,1981. Ken Lay assumed the responsibility for obtaining Abboud’s oral testimony. Prior to the testimony of Abboud, Lay became concerned about the possible applicability of the RFPA to Abboud’s testimony, even though he was no longer employed by the bank. Lay consulted with Thomas Hamill, Chief Counsel of the Commission’s Division of Enforcement, and with Levine concerning the matter. Realizing that Abboud’s expected oral testimony would relate to matters contained in records received prior to the effective date of the RFPA, Lay and Hamill considered whether any notice was required. They determined that because a portion of Abboud’s oral testimony might relate to customer financial information of certain of the Hunt’s other than that contained in the documents received from First National Bank pursuant to the April, 1980 subpoena, it would be best to provide notice to those concerning whose banking relationship Abboud would be questioned. Accordingly, by letters dated January 2, 1981, Lay informed counsel for W. H. Hunt, N. B. Hunt and Lamar Hunt that the SEC planned to depose Abboud, former chairman of First of Chicago, and that he would be asked to testify concerning personal financial records of plaintiffs that had been subpoenaed from First of Chicago on April 16, 1980. The letters to each plaintiff enclosed a “Customer Consent and Authorization for Access to Financial Records,” a “Statement of Customer Rights under the Right to Financial Privacy Act of 1978,” and what appeared to be the cover page and attachment of the April 16, 1980, subpoena issued to First of Chicago. These plaintiffs were requested to sign the customer consents. In preparing the attachments to the First of Chicago subpoena enclosed in his letters of January 2, 1981, Lay intentionally deleted portions of the attachment that had actually been served on First of Chicago. These letters did not state that portions of the attachment had been deleted, and Lay did not inform the three plaintiffs or their counsel of this fact. The only indication in the letters that portions of the attachment had been deleted was a vague reference to the “relevant portion” of the subpoena attachment. The portions of the attachment which were deleted related to extensions of credit or loans to certain brokerage houses, named in the original subpoena. Plaintiffs N. B. Hunt, W. H. Hunt and Lamar Hunt each signed a customer consent relating to Abboud’s testimony as requested by Lay in his January 2, 1981 letters. None of the three plaintiffs, however, were aware that portions of the original April, 1980 subpoena attachment had been deleted from the notice they received, at the time they executed the consent. Although Lay discussed the matter of Abboud’s testimony with Levine and Hamill, he did not inform either that he had deleted portions of the subpoena attachment sent to Plaintiffs with the consents. Lay deleted portions of the subpoena attachment and customer notice because he believed that notice as to the deleted material was not required by the RFPA. There is nothing in the subpoena attachment which was sent with the customer notices which would put a reasonable person'on notice that portions of the original subpoena attachment had been deleted. As the scheduled date for the taking of Abboud’s testimony approached, Lay had not received the executed consents even though it had been his understanding that they would be forthcoming. Lay asked Anthony Djinis, a member of the SEC staff, to ascertain the status of the consents from the Hunts’ counsel. On January 19, 1981, the day for which Abboud’s testimony was scheduled to occur, Djinis informed Lay that counsel for the Hunts had indicated that the consents had been executed and would be forthcoming. They had not, however, been received by Lay at the time Abboud’s testimony was to commence. Thus, after “going on the record” and asking Abboud some general questions unrelated to the Hunts, Lay, after conferring with Sporkin, decided to adjourn the testimony. Lay did so because he was concerned that, without having the consents in hand, the RFPA would not have been fully and literally complied with. Lay now believes that the Abboud consents signed by the three plaintiffs were defective under the RFPA because the subpoena attachments contained deletions. 2. The First National (International) Bancshares, Inc. Subpoena and Notice. In furtherance of the SEC investigation Gail Vance served a subpoena duces tecum, dated February 19, 1981, upon First International Bancshares, Inc., the parent holding company of First National Bank of Dallas. The February 19, 1981 subpoena was erroneously addressed to “First National Bancshares, Inc.” as a result of a typographical error. Vance did not proof read the subpoena before issuing it and did not then discover the error. The subpoena and attachment called for the production of the following documents, and included the following definitions: ATTACHMENT A. This subpoena covers all documents described below in the possession of the addressee of this subpoena, or subject to his custody or control. B. Unless the context indicates otherwise, the following words and phrases are defined and used herein as follows: (1) “Document” or “Documents” refer to all written or graphic matter, however produced or reproduced, or to any other tangible permanent record, and without limitation, shall include, among other things, all letters, correspondence, records, memoranda, minutes, notes, summaries, telephone records, bank checks, bank deposit slips, bank credit and debit memoranda, bank drafts, bank statements, books, schedules, reports, studies, appraisals, analyses, lists, surveys, budgets, financial statements, financial projections, financial calculations, contracts, agreements, periodicals, charts, graphs, interviews, speeches, transcripts, depositions, press releases, brochures, books of account, telegrams, notes and minutes of meetings of directors or other meetings, interoffice communications, results of investigations, working papers, computer data, maps, papers similar to any of the foregoing, and other writings of every kind and description (whether or not actually used, and including drafts of all documents), and including not only originals of such documents but all photostatic or microfilmed copies in whatever form, and all sound recordings in whatever form. (2) A document or communication “relating or incident to” a given subject matter means any document or communication that constitutes, contains, embodies, comprises, reflects, identifies, states, refers to, deals with, comments on, responds to, describes, analyzes, or is in any way pertinent to that subject, including, without limitation, documents concerning the presentation of other documents. (3) The term “Hunts” as used herein means Nelson Bunker Hunt, William Herbert Hunt; Houston B. Hunt, Lamar Hunt, Albert Huddelston, Douglas H. Hunt, and each of them, and sole proprietorships, corporations, partnerships and other ventures controlled by them, including but not limited to International Metals Investment Company, Ltd., Hunt Minerals International Ltd., Hunt International, Hunt International Resources Co., Hunt Energy Corp., Hunt Holdings Inc., Placid Oil Co., Planet Investment Corp., Penrod Drilling, Great Western Sugar Co., Western Investment, Inc., Third Crescent Investment Co., and Excellor Group, and their officers, directors, affiliates, predecessors, successors, subsidiaries and joint ventures in which they are principals and each of them. (4) The term “Engelhard” as used herein means Engelhard Mineral and Chemicals Corporation, and its officers, directors, affiliates, predecessors, successors, subsidiaries and joint ventures in which they are participants, and each of them. (5) The term “IMIC” as used herein means International Metals Investment Co., Ltd., and its officers, directors, affiliates, predecessors, successors, subsidiaries, and joint véntures in which they are participants, and each of them. (6) The term “ACLI International, Inc.” as used herein includes its officers, representatives, directors, agents, affiliates, predecessors, successors, subsidiaries and joint ventures in which they are participants, and each of them. (7) The term “the Bank” as used herein means the addressee of this subpoena and its parents, subsidiaries, affiliates, predecessors, successors, officers, directors, agents, representatives, and joint ventures in which they are participants, and each of them. DOCUMENTS TO BE PRODUCED For the period July 1, 1979, to the present, all documents not already produced relating or incident to the following: A. All contemplated, requested proposed or executed loans, advances, guarantees, extensions of credit or other forms of credit extended or arranged by the Bank or to which the Bank was directly or indirectly a party or a participant, in amounts greater than $250,000, to or for the benefit of the Hunts. B. All proposed or executed loans, advances, guarantees, extensions of credit or other forms of credit, extended or arranged by the Bank, or to which the Bank was directly a party or a participant, in amounts greater than $250,000, to or for the benefit of: (i) Engelhard (ii) ACLI International, Inc. (iii) IMIC C. The financial condition of the Hunts, including but not limited to all financial statements, balance sheets and audits of the Hunts furnished, provided, issued or otherwise transmitted by the Hunts, their agents, employees, or other persons acting for or on their behalf, or otherwise obtained. D. All proposed or executed contracts, agreements, arrangements, understandings or other relationships between or among the Bank and the Hunts. E. All conferences, meetings, conversations, discussions, correspondence or other communications between or among the Bank and others, including but not limited to the Hunts concerning (A), (B), (C), or (D) above. The customer notices sent to all six plaintiffs in connection with the February 19th, 1981 subpoena contained a materially different subpoena and attachment. The subpoena and attachment which plaintiffs received a copy of was dated February 18, 1981. Although Vance was aware that the date on the subpoenas included in plaintiffs’ customer notices was different from the date on the actual subpoena, she did not correct the error because she wanted to avoid the resulting inconvenience and delay. Further, substantial portions of the attachment to the February 19th, 1981 subpoena had been deleted, and plaintiffs received an excised version as follows: ATTACHMENT A. This subpoena covers all documents described below in the possession of the addressee of this subpoena, or subject to his custody or control. B. Unless the context indicates otherwise, the following words and phrases are defined and used herein as follows: (1) “Document” or “Documents” refer to all written or graphic matter, however produced or reproduced, or to any other tangible permanent record, and without limitation, shall include, among other things, all letters, correspondence, records, memoranda, minutes, notes, summaries, telephone records, bank checks, bank deposit slips, bank credit and debit memoranda, bank drafts, bank statements, books, schedules, reports, studies, appraisals, analyses, lists, surveys, budgets, financial statements, financial projections, financial calculations, contracts, agreements, periodicals, charts, graphs, interviews, speeches, transcripts, depositions, press releases, brochures, books of account, telegrams, notes and minutes of meetings of directors or other meetings, interoffice communications, results of investigations, working papers, computer data, maps, papers similar to any of the foregoing, and other writings of every kind and description (whether or not actually used, and including drafts of all documents), and including not only originals of such documents but all photostatic or microfilmed copies in whatever form, and all sound recordings in whatever form. (2) A document or communication “relating or incident to” a given subject matter means any document or communication that constitutes, contains, embodies, comprises, reflects, identifies, states, refers to, deals with, comments on, responds to, describes, analyzes, or is in any way pertinent to that subject, including, without limitation, documents concerning the presentation of other documents. (3) The term “Hunts” as used herein means Nelson Bunker Hunt, William Herbert Hunt, Houston B. Hunt, Lamar Hunt, Albert Huddelston, Douglas H. Hunt. (7) The term “the Bank” as used herein means the addressee of this subpoena and its parents, subsidiaries, affiliates, predecessors, successors, officers, directors, agents, representatives, and joint ventures in which they are participants, and each of them. DOCUMENTS TO BE PRODUCED For the period July 1, 1979, to the present, all documents not already produced relating or incident to the following: A. All contemplated, requested proposed or executed loans, advances, guarantees, extensions of credit or other forms of credit extended or arranged by the Bank or to which the Bank was directly or indirectly a party or a participant, in amounts greater than $250,000, to or for the benefit of the Hunts. C. The financial condition of the Hunts, including but not limited to all financial statements, balance sheets and audits of the Hunts furnished, provided, issued or otherwise transmitted by the Hunts, their agents, employees, or other persons acting for or on their behalf, or otherwise obtained. D. All proposed or executed contracts, agreements, arrangements, understandings or other relationships between or among the Bank and the Hunts. E. All conferences, meetings, conversations, discussions, correspondence or other communications between or among the Bank and others, including but not limited to the Hunts concerning (A); (B), (C), or (D) above. The SEC staff never served a complete copy of the February 19, 1981 subpoena to plaintiffs. The customer notice sent to plaintiffs with respect to the February 19, 1981 subpoena states that the SEC is seeking financial records to determine whether there have been any violations of the Securities Act of 1933, the “Securities Exchange of 1934,” the Public Utility Holding Company Act of 1935, the “Trust Act [sic] Indenture Act of 1939,” the Investment Company Act of 1940, and the Investment Advisers Act of 1940. The Amended Order of Investigation pertinent to HO-1233 refers only to potential violations of the Exchange Act of 1934. The customer notices which Vance sent to plaintiffs is a form notice which is merely attached to the rest of the papers sent to plaintiffs. With the exception of Vance, the SEC staff now concedes that the mere listing of six statutes in the SEC’s customer notices does not adequately describe the nature of the agency’s law enforcement inquiry. Vance intentionally deleted portions of the subpoena attachment in the notice version of the subpoena served on plaintiffs at Lay’s instruction. The deleted portions of the February 19, 1981 subpoena called for the production of records pertaining to plaintiffs, the partnership of Hunt-Stephens, and other persons who may be customers under the RFPA. In addition, the February 19, 1981 subpoena calls for production of financial records pertaining to the “Hunts” — the term “Hunts” is defined to include not only plaintiffs but also “sole proprietorships, corporations, partnerships, and other ventures controlled by them,” including thirteen specified entities, “and their officers, directors, affiliates, predecessors, subsidiaries and joint ventures in which they are principals and each of them.” The SEC did not furnish customer notices to any persons or entities other than plaintiffs in connection with the February 19, 1981 subpoena. Officers and directors of the corporations referred to in the subpoena may be entitled to customer notice under the RFPA if they are “customers” of the financial institution to which the subpoena was directed. Vance, however, did not determine who these individuals were prior to issuing the subpoena and never considered giving them customer notice. A number of individuals other than plaintiffs served as officers and directors of the corporations and other entities referred to in the subpoena. Further, at the time she issued the subpoena and the excised versions thereof, in the customer notices to plaintiffs, Vance did not know whether some of the entities referred to in the subpoenas were partnerships of five or fewer individuals, and she made no effort to obtain that information. Vance’s and Lay’s reason for deleting portions of the subpoena in the customer notice was that they believed the RFPA did not require notice with respect to the materials sought by the deleted portions. In preparing the customer notice, Vance did not retype the attachment to eliminate the gaps created by the omissions, but rather photocopied the complete attachment with white paper over the omitted areas. Thus, there are large gaps in the version of the subpoena and attachment which plaintiffs received. Despite the presence of the gaps in the attachment to the subpoena sent with the customer notice, there is nothing in the customer notice which would put a reasonable person on notice that portions of the original subpoena had been excised. On March 2, 1981 plaintiffs notified the SEC of their intention to file a Motion to Quash the February 19, 1981 subpoena pursuant to the RFPA. The SEC declined to withdraw the subpoena and the same day plaintiffs filed their motion with this Court. Subsequently, on May 9, 1981, the SEC decided to withdraw the subpoena and so notified this Court. The SEC did not receive any of the documents requested in the subpoena. 3. The Republic and Citibank Subpoenas Approximately a week after the First National subpoena and customer notice were issued by Vance, she served subpoenas duces tecum upon Republic and Citibank seeking financial records of the plaintiffs. The actual subpoenas served on Republic and Citibank, dated February 25, 1981, are exact duplicates of the February 19, 1981 subpoena served on First National with respect to the content of the attachment and the documents requested. Once again, however, the customer notices served on plaintiffs contain a materially different subpoena and attachment. First, in the customer notices sent to plaintiffs, Vance included only one attachment for both of the subpoenas. As stated above, the attachment for each of the First National, Republic and Citibank subpoenas are exact duplicates. Each subpoena refers to an “attachment”. Vance decided to send the two subpoenas with only one attachment since the attachment to each was exactly the same. She believed plaintiffs would understand that the sole attachment referred to both subpoenas. Vance had previously contacted plaintiffs’ attorneys and been instructed to serve the customer notice upon the attorneys and not plaintiffs. Once again, Vance intentionally excised the same portions of the attachment sent in the customer notice. And once again, the deleted portions appear to call for production of not only the plaintiffs’ financial records, but also the records of other persons and entities which might be “customers” under the RFPA. Vance did not know at the time she deleted portions of the attachment whether any of the entities referred to in the subpoena were either partnerships of five or fewer individuals, and hence “customers” entitled to notice under the RFPA. Further, due to the breadth of the definitions of the entities referred to in the subpoenas, which were deleted in the notices, the subpoenas conceivably called for the production of other individuals’ records who may be “customers” as that term is defined in the RFPA. It is undisputed that neither Vance nor any staff member at the SEC considered furnishing customer notices to any persons or entities other than plaintiffs. Finally, once again, the Republic and Citibank customer notices state that the SEC is seeking financial records to determine whether there have been violations of the Securities Act of 1933, “the Securities Exchange of 1934” the Public Utility Holding Company Act of 1935, the “Trust Indenture Act of 1939,” the Investment Company Act of 1940, and the Investment Advisers Act of 1940. As I recounted above, for the most part the SEC now concedes that the mere listing of these six statutes in the SEC’s customer notices inadequately describes the nature of the agency’s law enforcement inquiry. 4. The “Update Letters” In April of 1980, the SEC, pursuant to its investigation, issued subpoenas to four banks seeking production of financial information relating to HO-1233. As stated above, one of the purposes of the SEC investigation was to examine possible failures by certain public corporations, including bank holding companies, to report the risk posed by loans used to purchase or pay for obligations incurred in connection with the Hunts’ silver activities. The April, 1980 subpoenas were addressed to First of Chicago, Royal Bank, Chemical Bank and Bankers Trust Company. All four subpoenas call for the production of documents existing as of the dates of the subpoenas, April 16, 1980. None purport to impose any continuing obligation on the banks to produce documentation subsequent to the date of the subpoena. Subsequent to April, 1980, the Hunts refinanced their silver debts through a $1.1 billion loan obtained by Placid Oil Company from a group of banks (“the Placid loan”). As a consequence, W. H. Hunt, N. B. Hunt and Lamar Hunt, as guarantors of the loan, furnished information to Placid Oil Company which was to be provided to this consortium of banks. Some of this financial information was made public, and there is a copy of the Placid loan agreement in the Rosenthal Report. When Vance was assigned to the investigation in late January, 1981, Lay instructed her to gather facts related specifically to the exposure of banking institutions arising out of the Hunt silver transactions. With respect to the Placid loan, Lay instructed Vance to examine the information which had been received as a result of the April, 1980 subpoenas, and to determine whether the SEC had received information relating to the Placid loan from all the participating banks. Lay also instructed her to determine whether such production was “complete.” Vance reviewed the loan agreement in the Rosenthal Report, and the in-dices and transmittal letters accompanying the document production by those banks under the April 1980 subpoenas. In a February 12, 1981 memorandum to Lay, Vance reported that four banks participating in the Placid loan which had been subpoenaed in April, 1980, may not have furnished all available information concerning the loan: First of Chicago, Royal Bank, Bankers Trust Company, and Chemical Bank. All but one of these banks — Royal Bank — are owned by publicly held companies. As a consequence of Vance’s report, and at Lay’s instruction, Vance prepared letters addressed to the four banks requesting among other things, “updated” information relating to the “Placid Loan.” All four letters contained the same request: Dear Sir: On April 16, 1980 the Securities and Exchange Commission issued a subpoena duces tecum to the bank requesting all documentation relating to the Hunts, silver loans and loans to various brokers-dealers. We understand that since that time the bank participated in a $1.1 billion loan to Placid Oil Company (the “Placid loan”). To the extent not already provided, please update the production by providing additional documentation, as described in the subpoena, relating to the bank’s participation in the Placid loan. Specifically, we seek all documentation concerning the inception of the credit, all communications with any persons concerning the credit, all notes or memoranda of meeting of any nature or with any persons concerning loans to Placid or others of the Hunts. Documentation shall include documents and summaries prepared by bank officers and employees concerning the credit; it shall also include documents relating to the financial obligations and condition of the Hunts themselves, all documentation concerning the use of proceeds of any “bridge” loans and of the Placid loan itself. Supply in addition all documents concerning the bank’s response to the Federal Reserve’s October 6, 1979 guidelines concerning lending for speculative purposes. Documentation to be provided should not include the executed or other final copies of the Placid loan, executed revolving credit agreement of April 28, 1980 entered into among Placid Oil, FNB-Dallas, Morgan Guaranty Trust, et al.; the Agreement of Limited Partnership of Placid Investments, Ltd., Placid Investment Company and N. B. & W. H. Hunt dated April 28, 1978; and the documentation of collateral supporting the loan. Production shall include all preliminary drafts of the “anti-speculation” clause ultimately embodied in 96.24 of the Revolving Credit Agreement dated April 28, 1980; 99 (“Covenants”) of the Partnership Commitment letter dated May 1, 1980; and Paragraph 16 (“Certain Covenants by the Limited Partnership”) in the Agreement of Limited Partnership dated April 28, 1980. The “Hunts” shall include but not be limited to: William Herbert Hunt; Nelson Bunker Hunt; Douglas H. Hunt; Lyda Bunker Hunt; Mary Huddleston; Albert Huddleston; Lamar Hunt; Houston Hunt; Paul William Flowers; Ellen Hunt Flowers and members of their families; The term “Hunts” shall also include entities which had loans outstanding to the Hunt individuals (as such documents relate to the matters described above) and shall include but not be limited to: Engelhard; ACI; HEC; Pentad; Hunt International Finance, N.V.; Cargill; Bache; Merrill Lynch; Paine Webber; E. F. Hutton; Swiss Bank Corp.; Credit Lyonnais; J. Henry Schroder Bank and Trust Co.; Continental Illinois National Bank and Trust of Chicago; First National Bank of Chicago; Trade Development Bank (Luxembourg); Dresdner Bank A.G.; Marine Midland; Berliner Hendell (BHF Bank); Citibank N.A.; Chemical Bank; Bank Populaire Suisse; Royal Bank of Canada; Manufacturers Hanover; Chase Manhattan Bank; First National Bank-Dallas; Standard Chartered Bank, Ltd.; Irving Trust Company; Barclays Bank; First National Bank and Trust of Oklahoma City; Harris Trust and Savings Bank; Bankers Trust Company; Citizens and Southern National Bank; Northern Trust; Morgan Guaranty Trust Company; Security Pacific National Bank; United States Trust Co.; Bank of America and Republic National Bank of Dallas. It is perfectly clear from the first three sentences of the letters that Lay and Vance sought production of documents and information generated subsequent to April 16, 1980. Likewise, it is clear that the April, 1980 subpoenas imposed no “continuing production” duty on the banks. In addition, the request and related definitions purport to request production of the financial records and documents of the plaintiffs, as well as other individuals. It is undisputed that no customer notices were sent with respect to the “update letters” to anyone. Prior to issuing the letters Vance prepared a draft letter. Lay reviewed it, made changes, and suggested others. During the preparation of the letters, Lay and Vance discussed whether the RFPA was applicable to the records sought. They concluded that the RFPA did not apply because they believed that the letters requested only financial records from the account of Placid Oil Company — a corporation. At the time Vance was drafting the letters, she attempted to seek the advice of Tom Hamill, Chief Counsel for the Division of Enforcement, as to whether a “continuing production” letter required customer notice under the RFPA. Hamill advised Vance that such notice was necessary. When Vance informed Lay of Hamill’s opinion, however, Lay claimed that Hamill had given him a contrary opinion. Vance again consulted with Hamill, who denied advising Lay that “continuing production” letters did not require customer notice. Vance advised Lay of this. Nevertheless, Vance and Lay concluded that notice was not required for the independent reason which is set forth above — that the letters sought only information from the Placid Oil Company account, a corporation not entitled to notice under the RFPA. Early on, the SEC, in response to Plaintiffs’ Request for Admissions, took the position that no customer notice was required under the RFPA with respect to the update letters. Since then, however, Vance and Lay have stated that the letters are inartfully drafted and “can be read” to request production of records from the accounts of individual customers, including Plaintiffs. Accordingly, Vance, Lay and Levine agree that the letters either should not have been sent, or that customer notice should have been provided. Subsequent to the filing of Plaintiffs’ Motion to Quash directed at the First in Dallas subpoena, dated March 2,1981, Stanley Sporkin, Director of the Division of Enforcement, learned of the update letters and immediately ordered them to be withdrawn. On March 10, 1981 the SEC withdrew the letters by telephone, and by letter of March 11, 1981 confirmed the withdrawals. The four update letters were withdrawn before the SEC received any documents from the four banks. 5. Collateral Matters Aside from the main incidents to which this litigation is directed, which I have discussed above, the evidence has raised two distinct collateral matters. First, Plaintiffs have suggested, and attempted to prove, that the SEC has made oral requests of financial institutions for information concerning Plaintiffs’ accounts after the effective date of the RFPA. Second, Plaintiffs have likewise suggested and attempted to prove that the SEC, and its staff, have improperly conveyed information relating to plaintiffs’ relationships with financial institutions to other agencies and parties. a. Oral Requests for Financial Information There is some evidence in the record to suggest that SEC staff employees have orally, via telephone conversations with the financial institutions involved in the instant ease, sought the production of financial documents pertaining to Plaintiffs after November 10, 1980. There is no evidence, however, to suggest that any of these requests related to any documentation which was not already subject to an outstanding subpoena directed at the particular financial institution. With respect to these conversations, however, no customer notice was given. In particular, Lay communicated with the representatives of Morgan Guaranty Bank with regard to financial information relating to the plaintiffs after the affected date of RFPA. The conversation related to documents called for by an outstanding subpoena addressed to Morgan Guaranty Bank which was issued prior to the effective date of the RFPA. There is no evidence to suggest that Lay sought production of financial records relating to Plaintiffs which were not already the subject of the outstanding subpoena. b. Transfers of Financial Information by the SEC Although the present state of the record reveals that there has been an ongoing and continuous exchange of information between the SEC and the CFTC in connection with the SEC investigation, there is no evidence to suggest that the SEC has passed on specific financial information relating to Plaintiffs to the CFTC after the effective date of the RFPA. There is evidence which suggests that on numerous occasions SEC staff employees have discussed the investigation with non-SEC persons. There is no evidence, however, that these discussions included remarks concerning financial jnformation about the Plaintiffs received by the SEC in the course of its investigation. On numerous occasions, Plaintiffs and banks which have provided Plaintiffs’ financial records to the SEC have sought assurances that the SEC will not disclose any such non-public information or records to third parties. Not surprisingly, the SEC has' responded to these confidentiality requests in its usual fashion with a form letter. The letter states that the issue of confidentiality can only be resolved each time a request for disclosure is made under the Freedom of Information Act, 5 U.S.C. § 552 et seq. It goes on to state that, nonetheless, the SEC would give the request careful consideration, and attempt to keep the applicant apprised of any requests for the information under FOIA. Finally, the letter advises the applicant of various circumstances under which the material may be released to third parties without notice to the applicant. Attached to the letter is a form list of these routine uses, including among others the following two routine uses: “1. To coordinate law enforcement activities between the SEC and other federal, state, local or foreign law enforcement agencies, and securities self-regulatory organizations. 19. To respond to inquiries from Members of Congress the press and the public which relate to specific matters that the Commission has investigated and to matters under the Commission’s jurisdiction.” In addition to the multitude of requests for confidentiality, Plaintiffs proposed a confidentiality stipulation with the SEC which was rejected. To date, the only assurance the SEC has provided Plaintiffs concerning the financial information they have gathered is that the SEC will attempt to notify Plaintiffs of any FOIA request for the information. F. REPENTANCE AND REFORM In September 1977, when the bill that resulted in the enactment of the RFPA was introduced, the SEC became involved in the legislative process to raise certain questions concerning the Act’s potential application. When the RFPA was passed on November 10, 1978, the SEC was excluded from its coverage for a two-year period because of the Act’s peculiar effect upon it. Even though the SEC was not subject to the RFPA, it circulated a memorandum to all of its regional offices and supervisory personnel in the Division of Enforcement attaching a copy of the RFPA and the Department of Justice’s RFPA memorandum to alert them to the provisions of the new Act. A monitoring system was also established to track financial information obtained by the SEC as if the RFPA applied to the Commission. During this period, the SEC contacted 20 other agencies in an effort to draw on their experience in preparing for the RFPA, but none was helpful because other a