Commission staff highlight key developments and successes in the SEC enforcement program.
As they do every year, senior officials from the US Securities and Exchange Commission (SEC or the Commission), including current and former commissioners, recently gathered at the SEC Speaks conference held in Washington, DC to highlight the Commission’s accomplishments in fiscal year 2016 and announce its priorities for 2017. Officials from the SEC’s Division of Enforcement (Division or Enforcement Division) offered guidance to securities law practitioners as to best advocacy practices in defending enforcement actions, repeatedly emphasized the benefits of extraordinary cooperation with the enforcement staff in investigations and litigation, and discussed recent court decisions and issues pending before the federal courts, all of which will have a significant impact on the SEC’s enforcement program. In addition, in their prepared remarks, Acting SEC Chair Michael Piwowar and Commissioner Kara Stein—the sole members of the Commission at the moment—focused on investor protection, including the importance of empowering investors through transparency and disclosure of information, while Acting Chair Piwowar also questioned whether assessing civil monetary penalties on corporations in enforcement actions unduly harms investors instead of protecting the marketplace.
Straight from the Source: Practical Tips for Advocacy Before the Commission
Joseph Brenner, chief counsel of the Division, expressed surprise at defense counsels’ lack of focus on the decisions and opinions of the Commission when advocating before the SEC Staff (Staff) and in Wells submissions. Mr. Brenner emphasized that, from the Division’s perspective, the Commission’s view on legal issues is the view that the Staff will apply unless it is discussing a litigated matter in the federal district courts. In particular, Mr. Brenner highlighted several recent Commission opinions addressing negligence-based claims and what evidence the Commission deems necessary to prove such a violation, as well as potential defenses to such claims.
Mr. Brenner noted that in order to prove a negligence-based claim, the Division must prove that the alleged wrongdoer failed to exercise reasonable care. Mr. Brenner stated that, when considering the reasonableness of the alleged misconduct, the Commission applies a higher threshold to individuals (or entities) that have a heightened legal duty, such as an investment adviser who owes a fiduciary duty to clients. He cited as an example Robare Group Ltd., which involved an alleged conflict of interest that the investment adviser did not disclose in its Form ADV. The Commission found that while the adviser did not intend to defraud clients by its failure to disclose the conflict, it was negligent for failing “to use the ‘degree of care that a reasonably careful person would use under like circumstances.’” Mr. Brenner suggested, however, that if the respondent had not been an adviser with both a fiduciary duty and a duty to disclose, the Commission’s reasonableness analysis might have reached a different conclusion.
Finally, Mr. Brenner discussed the use of a “reliance on the advice of counsel” defense to counter negligence-based claims, again referencing the Commission’s opinion in Robare. In the initial decision underlying the Commission’s opinion, the administrative law judge (ALJ) found that the Division had failed to prove that the Robare Group (the respondents) had acted with scienter, recklessness, or even negligence, and placed great weight on evidence that respondents had reasonably relied in good faith on guidance from two compliance firms in preparing the firm’s Form ADV disclosure. In its opinion, the Commission found that the respondents’ reliance on others did not negate a finding of negligence. Mr. Brenner noted that the Commission’s Robare opinion suggests that a reliance on counsel defense, which has generally developed in the context of scienter-based claims, may be a defense to negligence-based claims in some instances. However, the opinion found that the Robare respondents could not reasonably rely on advice that a potential conflict of interest did not need to be disclosed because they knew they were required to disclose potential conflicts of interest.
Insider Trading, Limitations on Relief, and Constitutional Battles: Litigation Developments in 2017
Members of the Enforcement Division’s Trial Unit and Office of General Counsel discussed several important federal criminal and civil cases impacting the Commission’s enforcement program, including (i) Salman v. United States, which resolved the differing decisions by the Second and Ninth Circuits’ courts of appeals on what the government must prove in order to show that a tipper in an insider trading case received a “personal benefit” in exchange for a tip; (ii) the current split between the Tenth and Eleventh Circuits’ courts of appeals regarding the application of the five-year statute of limitations under 28 U.S.C. § 2462 to SEC claims for disgorgement in enforcement actions, and the Supreme Court’s grant of certiorari to resolve it; and (iii) the ongoing litigation challenging whether the SEC’s appointments of its ALJs violate the Appointments Clause of the Constitution because they are “inferior officers” who were not appointed by the president.
Panelist and former SEC Chair David S. Ruder stated that the potential ramifications of a Supreme Court decision stating that ALJs are inferior officers are “severe,” explaining that such a holding would not only affect ALJs within the SEC but all ALJs throughout the federal government. He also questioned whether ALJ decisions would be retroactively overturned. Solicitor Michael A. Conley responded that if it were ultimately decided that ALJs are inferior officers, such issues would have to be addressed by the Commission and the Department of Justice “down the road.”
Cooperate to Mitigate: Cooperation Yields Array of Benefits for Defendants
Bridget Fitzpatrick, acting co-chief litigation counsel of the Division, and Charles E. Cain, deputy chief of the Foreign Corrupt Practices Act (FCPA) Unit, each stressed the Staff’s view that extraordinary cooperation with the SEC during investigations could result in an array of benefits including the Enforcement Staff’s declining to institute an enforcement action, agreeing to reduce charges, or seeking a lesser penalty or even no penalty. Mr. Cain highlighted several FCPA cases where such corporate cooperation had paid off, and Ms. Fitzpatrick highlighted a case where the cooperator failed to continue to cooperate through the end of the SEC’s litigation and was severely penalized.
Key Enforcement Issues and Priorities for 2017
“Investigate to Litigate”—Enforcement Pushes Forward with Collaborative Approach
Acting Co-Chief Litigation Counsel David Gottesman discussed the Division’s “investigate to litigate” approach to investigations. Under this approach, the SEC has undertaken to conduct investigations with an eye toward developing evidence potentially admissible at trial so that the Division can continually evaluate the factual record and the likelihood of success (or not) at trial. Mr. Gottesman also explained that the Commission has implemented its investigate to litigate approach by educating and training the investigative staff on litigation issues, encouraging investigative attorneys to focus on evidence gathering early in investigations, and involving trial attorneys earlier in investigations.
Financial Reporting and Audit Group: Earlier Detection and More Targets
The Enforcement Division’s Financial Reporting and Audit Group (known as the Fraud Group) described its Issuer Review and Monitoring Initiative (IRM Initiative) and the Corporate Issuer Risk Assessment (CIRA) tool, which, according to the Staff, identifies matters in the public company space that the Division otherwise would not find.
The IRM Initiative’s two-step methodology identifies issuers that are “of interest” and then follows up with “deep dive” reviews by liaison staffers to determine whether an issuer (or a related auditor) merits additional investigation or monitoring. According to Margaret McGuire, chief of the Fraud Group, this initiative has enabled the Staff to identify more matters and to facilitate earlier referral of matters to investigative attorneys. Through the IRM Initiative, the Fraud Group has thus far identified 300 issuers of interest, resulting in dozens of ongoing matters, some of which have already been filed.
The Fraud Group’s efforts and initiatives are enhanced by the use of CIRA, a tool that aggregates and organizes issuer financial information via the Enforcement Dashboard and provides a comprehensive view of the issuer reporting environment. Ms. McGuire stated that this technology allows the Staff to look at issues more quickly in a more efficient manner, and to spot trends and patterns that otherwise would not be apparent.
Digital Danger: Cyber Fraud, Hacking, and Corporate Liability
Joseph Sansone, co-chief of the Market Abuse Unit, discussed the challenges the Commission currently faces in combating cases involving cyber fraud and hacking schemes. The Commission has recently seen a wave of sophisticated schemes whereby individuals are stealing confidential nonpublic information, including quarterly report information from newswire services, information on pending mergers and acquisitions from law firms, and other financial information from issuers, and then trading on that hijacked information. Other hacking schemes include manipulating the market by gaining unauthorized access and trading in accounts and using fake news stories intended to affect stock prices. Mr. Sansone also highlighted the Commission’s continued focus on and success in using detailed data analysis for combating such schemes.
Mr. Sansone also acknowledged the potential of institutional liability for insider trading for some companies targeted by complex hacking schemes. He indicated that it is unlikely that cases would be brought against law firms or newswire services, which are generally seen as victims of hacking, but did not rule out the possibility of a case where an issuer could be liable for failing to report a known vulnerability attributable to deficient policies and procedures for protecting sensitive digital information. Stephanie Avakian, acting director of the Enforcement Division, elaborated on this point, explaining that the Division could possibly determine a registrant’s liability by evaluating the registrant’s policies and procedures under the standard established in Regulation S-P.
Broker-Dealer Task Force: Excessive Trading and AML Compliance
The Enforcement Division Broker-Dealer Task Force’s primary focus in the upcoming year is on excessive trading by brokers and anti-money laundering (AML) compliance. Andrew Calamari, director of the SEC’s New York Regional Office, explained that the Broker-Dealer Task Force and Enforcement Division are using a new and improved approach to identify trends that are typically indicative of excessive trading (also known as “churning”). This new approach involves collecting targeted data-driven metrics and then basing claims on the particular suitability of the trading strategy used by the broker-dealer, rather than on traditional theories of churning, which are difficult to prove.
The second area of focus for the Broker-Dealer Task Force is monitoring a broker-dealer’s obligations with respect to Suspicious Activity Reports (SARs). Antonia Chion, associate director of the Enforcement Division, said broker-dealers should keep in mind that the SEC has a team of reviewers who are reading and actively analyzing every SAR that is filed. One area of focus is broker-dealers who fail to file SARs at all. The SEC filed its first stand-alone action for failure to file any SARs this last fiscal year, which serves as a reminder to firms that they must take their AML responsibilities seriously.
Ms. Chion reminded the audience that a broker-dealer does not need to know with certainty that suspicious activity is afoot but instead may have an obligation to file an SAR when the firm has reason to suspect a transaction does not have a legitimate purpose. Ms. Chion noted that the Commission will also continue to actively pursue broker-dealers who ignore or fail to follow up on red flags and other indicia of fraudulent activity that may trigger SAR reporting requirements.
Public Finance Abuse Unit Focuses on Public Corruption and Disclosure Fraud
Lee Ann Gaunt, chief of the Public Finance Abuse Unit, emphasized that the unit will continue to crack down on public corruption and on holding municipal advisors—the newest class of SEC registrants—to their fiduciary duties. Ms. Gaunt highlighted the unit’s interest in pay-to-play cases and failures to disclose conflicts of interest and disclosure fraud generally. She also highlighted a recent case concerning failure to protect confidential client information. Additionally, Ms. Gaunt noted that the Commission won a federal jury trial against a municipality and one of its officers for violations of the federal securities laws and obtained a $1 million civil penalty, the largest penalty ever imposed on a municipal issuer by the SEC.
Cracking Down on Attempts to Silence Whistleblowers
Whistleblower Office Chief Jane Norberg stressed the SEC’s continued focus on its whistleblowing program and emphasis on whistleblower protection. While the program has awarded more than $150 million to approximately 41 whistleblowers, Ms. Norberg said the real value of the program can be seen in the amount of money that is returned to investors: whistleblower tips have led to a total of nearly $1 billion in financial remedies.
Ms. Norberg noted that the SEC will continue to fight any efforts made by companies to restrict, prohibit, or chill employee whistleblower reporting. The Commission has initiated three matters against companies that were allegedly retaliating against whistleblowers, including two matters in fiscal year 2016. These cases imposed sanctions against companies that retaliate against employees who raise concerns and companies that require employees to sign agreements that discourage or prohibit them from reporting concerns to government regulators, including the SEC. Ms. Norberg said that companies should review existing employee agreements, looking through the eyes of an “average unrepresented employee,” and consider whether the language of such agreements could be interpreted as creating a chilling effect on whistleblower activities. She stressed that it is imperative that whistleblowers feel they can voluntarily bring information to the Commission and be safe from reprisal.
FCPA: Cooperation with International Regulators Boosts Enforcement Numbers
Mr. Cain, speaking on behalf of the Division’s FCPA Unit, stated that the unit saw its largest number of actions to date this last year—28 actions—with slightly more than $1 billion in disgorgement. Mr. Cain highlighted the unit’s success in settling cases against foreign entities. These cases illustrate a trend of increased international cooperation in FCPA investigations worldwide. Mr. Cain explained that the unit staff worked in parallel with authorities overseas and received assistance from more than two dozen countries.
Asset Management Unit: Retail Investors, Undisclosed Conflicts, and Sham Valuations
C. Dabney O’Riordan, co-chief of the Asset Management Unit (AMU), explained that the Commission views the asset management space as consisting of three broad categories: retail accounts, registered investment companies, and private funds. With respect to retail accounts, the Commission is focused on undisclosed conflicts of interest, undisclosed fees, and trade allocation. For example, she emphasized that investment advisers that receive direct or indirect benefits from service providers must disclose these benefits to clients. She also stated that conflicts of interest involving mutual fund share classes will be a continuing area of focus for the AMU, given their impact on retail accounts.
According to Ms. O’Riordan, the AMU will focus on three types of conduct involving improper trade allocation: advisers allocating more favorable trades to their own accounts; advisers allocating more favorable trades to accounts for which the advisers receive higher fees; and advisers allocating trades in manners inconsistent with their disclosures or firms’ policies and procedures.
For registered investment companies, the AMU’s top enforcement priorities are improper valuation and deficiencies in fund governance and compliance. Ms. O’Riordan noted that mutual funds and exchange-traded funds are of particular concern because they represent common investment choices for individuals saving for retirement. Issues of improper valuation often involve highly illiquid securities that may be difficult to value. The Commission’s concerns with improper valuations are twofold: they can cause investors to pay higher prices for fund shares, and they can also cause investors to pay higher asset-based management fees.
With respect to private fund enforcement priorities, the Commission’s concerns mirror those highlighted above for retail accounts and registered investment companies. Ms. O’Riordan explained that the structure of private funds can impair transparency for investors, which poses risks related not only to valuation, but also to allocation of expenses, undisclosed compensation and fees, and trade allocation.
Finally, Ms. O’Riordan emphasized an overall focus on gatekeepers, indicating that when the Staff finds a violation by an adviser or a private fund, it will also evaluate whether the relevant gatekeepers failed to meet their obligations.
Reading the Tea Leaves: Commissioners’ Remarks Signal Possible Shifts in Disclosure and Corporate Penalties
During their respective remarks, both Acting Chair Piwowar and Commissioner Stein discussed the importance of disclosure in today’s markets. However, the commissioners focused on different aspects of disclosure, possibly foreshadowing a divergence of views with respect to the Commission’s position on disclosure requirements in 2017.
Acting Chair Piwowar’s remarks emphasized the Commission’s focus on weeding out nonmaterial disclosure requirements that result in undue burdens on issuers and, ultimately, unnecessary costs to investors. Mr. Piwowar emphasized that while the Commission has a role “in empowering investors through disclosure . . . , we must never lose sight of the legal standard of materiality.” To illustrate, Mr. Piwowar highlighted various nonmaterial disclosure provisions under the Dodd-Frank Act that he believes are politically motivated and nonmaterial in nature—for example, the conflict minerals, pay ratio, and resource extraction provisions. He implied that these types of disclosures carry with them additional costs that are ultimately passed down to and borne by investors.
Commissioner Stein’s remarks cautioned against a lack of disclosure. She questioned whether there is sufficient disclosure and transparency in today’s markets. She reminded the audience that capital finds its best uses when a wide range of participants can weigh relevant and reliable information. She also emphasized that the Commission should not lose sight of its two foundational principles after the Great Depression: transparency and disclosure. Commissioner Stein noted that there is increased opacity in today’s markets, as more trades are conducted off exchange in dark pools and more money is being raised in unregistered offerings than registered offerings. She urged the Commission to do more to address the changing financial environment. In particular, she recommended that the Commission keep an eye on highly complex retail products and consider whether the rules and regulations related to such products adequately protect investors.
Acting Chair Piwowar’s remarks also framed the debate over whether the SEC should levy large financial penalties against entities by suggesting that such fines ultimately penalize investors and shareholders rather than the bad actors themselves. He implied that he is skeptical of large civil monetary penalties but not opposed to them across the board. For example, he noted that he supports the use of monetary penalties for regulated entities such as investment advisers and broker-dealers, as well as for companies that violate the FCPA.