Vedder Thinking | Articles SEC Speaks 2012
The U.S. Securities and Exchange Commission (SEC or the Commission) held its annual SEC Speaks conference in Washington, DC from February 24–25, 2012. This past year was devoted to modernization initiatives and calls for renewed efforts to increase the unprecedented 735 enforcement actions filed in the fiscal year that ended September 30, 2011.
Chairman Mary L. Schapiro began the conference by noting the strides the SEC has made in improved modernization initiatives, including better hiring and training and more sophisticated technology, research capabilities and operational management. Schapiro specifically emphasized broadened hiring efforts to bring nonlawyer industry experts on staff, including traders and academics, as well as doubling the staff’s training budget and enhancement of the new agencywide electronic discovery program. Schapiro also lauded the staff’s increased ability to recognize threats and move rapidly to address them.
Robert Khuzami, director of the SEC’s Division of Enforcement, echoed chairman Schapiro’s remarks and emphasized the ongoing efforts to bring cases arising from the financial crisis, in addition to the nearly 100 actions brought to date against individuals and/or entities—more than half of which include CFOs, CEOs or other senior officers. Jason Anthony in the Structured and New Products Unit also addressed the SEC’s “very large focus” on financial crisis cases, reporting that the SEC has brought 95 actions against entities and individuals arising out of the financial crisis and has obtained almost $2 billion in monetary relief.
Matthew Martens, chief litigation counsel, discussed the SEC’s litigation record and settlement practices, in light of the uproar stemming from Judge Rakoff’s refusal last year to approve the SEC’s settlement with Citigroup. According to Martens, it is the SEC’s policy to accept settlements with recoveries that the SEC could reasonably expect to receive at trial, and he argued that it would be a mistake to reject settlements simply because they lack admissions of liability. Martens also noted that the use of detailed public complaints ensures that the public is adequately put on notice regarding any wrongful conduct that allegedly has occurred, and he stressed that out of approximately 2,000 cases settled in the past three years, judges have challenged settlements in fewer than ten instances.
Kara Brockmeyer, chief of the SEC’s specialized FCPA Unit, announced the December 2011 launch of the “FCPA Spotlight” page on the Commission’s website, which includes links to every FCPA action ever brought by the SEC and also provides FCPA case statistics going back five years. Brockmeyer noted that the SEC brought 20 FCPA actions in 2011 (19 companies, one individual) and collected $255 million in sanctions. Brockmeyer promised that “more will be coming,” including cases targeting the pharmaceutical industry. Indeed, in 2012, the SEC has already charged 14 individuals and five companies with FCPA violations. She also touched on various international developments in anticorruption enforcement, including recent antibribery laws passed in Russia and China, and noted that Switzerland recently brought its first foreign corruption case. Brockmeyer indicated that the SEC is seeing more and improved cooperation in connection with foreign corruption cases between regulators and across borders.
David Bergers, the SEC’s regional director in Boston, discussed Enforcement’s enhanced ability to pursue potential wrongful conduct based upon the delegation of formal order authority to senior officers in the Division, which permits the SEC to escalate an investigation more quickly and to compel testimony and document production. Bergers also noted that, under the streamlined Wells notice process, the SEC will allow only one post-Wells meeting so that settlement negotiations do not delay recommending an action to the Commission, which is consistent with Dodd-Frank’s requirement that an action be filed within 180 days of a Wells notice, with any extension requiring the Commission’s approval. Bergers stressed that the Enforcement staff is taking this deadline “very seriously.”
Commissioner Daniel Gallagher focused his comments on “failure to supervise” liability for a broker-dealer’s legal and compliance personnel. Although legal and compliance officers are not automatically considered “supervisors,” they can fall under this category when the facts and circumstances of a particular case reveal that they held the requisite degree of responsibility, ability or authority to affect the conduct of other employees such that they have become a part of the management team’s collective response to a problem. Gallagher acknowledged that “robust engagement on the part of legal and compliance personnel raises the specter that such personnel could be deemed to be ‘supervisors’ subject to liability for violations of law by the employees they are held to be supervising,” which then leads to “the perverse effect of increasing the risk of supervisory liability in direct proportion to the intensity of their engagement in legal and compliance activities.” Gallagher did conclude that the issue “remains disturbingly murky” and called upon the Commission to provide a framework that encourages such personnel to provide the necessary guidance without fear of being deemed “supervisors.”
Sean McKessy, chief of the SEC’s Office of the Whistleblower, reported that the new Whistleblower Program stemming from Dodd-Frank has resulted in hundreds of high-quality tips. McKessy stressed that his office has engaged in significant internal outreach to educate staff across the divisions to ensure they understand the type of information that should be captured from whistleblowers as well as how to process award payments, which Dodd-Frank directs the SEC to pay in amounts between 10 and 30 percent of monetary sanctions to individuals who voluntarily provide original information that leads to successful enforcement actions resulting in sanctions over $1 million. According to McKessy, the current priority is to improve and maintain communication with whistleblowers and their counsel, and he noted that the office has successfully returned more than 2,000 calls within 24 business hours of receiving the tip on the hotline.
In response to criticism that Dodd-Frank’s Whistleblower Program will stifle internal reporting, McKessy defended the approach as “balanced” because it includes “built-in incentives” that enable whistleblowers to report internally first yet still remain eligible for the award. McKessy also volunteered that his experience has been that a significant majority of the tips received were—according to the whistleblowers themselves—reported first internally within their respective companies, and said that he was “hard pressed” to think of an example in which the whistleblower did not first report internally.
Merri Jo Gillette, regional director in Chicago, commented on the expansion of aiding and abetting liability under Dodd-Frank, noting that the SEC now has more flexibility to assert aiding and abetting claims under the Securities Act and the Investment Advisers Act, as well as to seek civil monetary penalties. Prior to Dodd-Frank, the SEC was required to show that an aider and abettor knowingly provided substantial assistance, but now the SEC may prove the charge under a “knowing or reckless state of mind” standard. Gillette remarked that the SEC will continue to look at the application of aiding and abetting liability to so-called corporate gatekeepers, such as accountants and lawyers.
In terms of changes to civil penalties under Dodd-Frank, Gillette explained that the most significant development is the SEC’s authority to seek penalties in administrative proceedings as well as expanded authority to penalize secondary actors, as the SEC may now explicitly seek penalties against persons who commit direct violations and who were “causes” of direct violations.
Speakers at the conference continued to emphasize the importance of auditor independence. Because the SEC’s auditor independence standards are broader than those of the American Institute of CPAs (AICPA), the Accounting Enforcement panel cautioned that companies considering an initial public offering should carefully review the scope of their auditor’s services for compliance with the SEC’s more stringent requirements. Fraud enforcement in the context of financial reporting also continues to be a high priority for the SEC. The SEC warned that additional areas of focus will be cross-border transactions, disclosures, revenue recognition, loan losses, valuation, impairment, expense recognition and related-party transactions.
The revamped SEC now appears ready to expand upon its enforcement efforts in 2012, which is reflected within President Obama’s proposed budget for 2013, reflecting an 18.5 percent increase over the SEC’s 2012 appropriation, and which would permit the agency to increase its staff by 15 percent. This budget increase would support the Commission’s touted technology initiatives and continued expansion of the agency’s system to identify suspicious patterns and behaviors quickly and more effectively. The SEC appears engaged to exceed last year’s record number of enforcement actions, especially via the capabilities afforded by Dodd-Frank.
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