Last month, the SEC announced enforcement actions against 28 officers, directors, or major shareholders for violating federal securities laws requiring them to promptly report information about their holdings and transactions in company stock. Six publicly-traded companies were charged for contributing to filing failures by insiders or failing to report their insiders’ filing delinquencies. The announcement of this regulatory sweep is viewed as the latest example of the agency’s “broken windows” approach to enforcement policy, in which the Commission will pursue every violation of the securities rules and laws no matter how small or minor.
This aggressive approach to enforcement policy was first announced last year in a series of speeches made by SEC Chair Mary Jo White and Co-Enforcement Director Andrew Ceresney. For an example of the SEC’s tough talk, read Chair White’s “Deploying the Full Enforcement Arsenal” speech, where she discussed her prosecutorial experience and her development of the first corporate deferred prosecution agreement.
Last week, the agency announced its first ever enforcement action against a high-frequency trading firm for manipulating the market. In a settled enforcement action, the SEC alleged that Athena Capital Research placed a large number of rapid-fire trades in the final two seconds of almost every trading day during a six-month period to manipulate the closing prices of certain stocks listed on the NASDAQ Exchange. Athena used an algorithm to engage in a practice known as “marking the close” in which stocks are bought or sold near the close of trading to affect the closing price. The massive volumes of Athena’s last-second trades allowed Athena to overwhelm the market’s available liquidity and artificially push the market price in Athena’s favor. Athena agreed to pay a $1 million penalty to settle the SEC’s charges. SEC Press Release.
The SEC also published last week, data concerning the enforcement actions it took during its 2014 fiscal year. The agency filed a record 755 enforcement actions, obtaining orders totaling $4.16 billion in disgorgement and penalties. The enforcement actions included a number of first-ever cases, including actions involving the market access rule, the “pay-to-play” rule for investment advisers, an emergency action to halt a municipal bond offering, and an action for whistleblower retaliation. SEC Press Release.
This aggressive approach to enforcement, however, is not without its critics. Commissioner Daniel Gallagher objected to a SEC website which states: “First and foremost, the SEC is a law enforcement agency.” Gallagher continued, “I respectfully, but firmly, disagree with that statement as a point of fact.” Gallagher Remarks. And in a recent speech SEC Commissioner Michael Piwowar pointedly questioned the “broken windows” initiative. “If every rule is a priority,” noted Piwowar, “then no rule is a priority.” Piwowar Remarks.