On January 1, 2021, Congress significantly expanded the SEC’s authority to seek disgorgement as a remedy for violations of the federal securities laws, responding to recent decisions by the U.S. Supreme Court that had limited the SEC’s disgorgement power. Congress unexpectedly provided this enhanced authority by amending the Securities Exchange Act of 1934 (“Exchange Act”) in an obscure portion of the over 1,400-page National Defense Authorization Act,… More
Category Archives: Securities Enforcement
In response to the widespread outbreak of the COVID-19 pandemic in the United States, the U.S. Securities and Exchange Commission (SEC) has granted some flexibility to issuers with respect to their obligations to file periodic reports and deliver proxy and information statements to shareholders under the Securities Exchange Act. On March 4, the SEC issued an exemptive order granting affected public companies, subject to certain conditions, an additional 45 days to file or deliver those materials. … More
On Tuesday, the Supreme Court heard oral argument in Liu v. SEC, which concerns whether, or to what extent, the SEC may ask courts to disgorge defendants’ ill-gotten gains. As I discussed in a previous post, disgorgement accounts for most of the SEC’s money judgments, and its elimination would be a significant victory for defendants. Yet if oral argument is any indication,… More
In its proposed budget for 2021, the White House called for the Public Company Accounting Oversight Board’s (“PCAOB”) “functions and responsibilities” to be consolidated into the SEC. According to the administration, having the SEC absorb the PCAOB’s functions will clarify existing ambiguity and duplication among the two regulators, and promote “constraint” over the fees the PCAOB charges to public companies and broker-dealers to fund the PCAOB. … More
John W.R. Murray recently authored a White Collar Crime and Government Investigations Alert about the SEC Office of Compliance Inspections and Examinations 2020 examination priorities. They include prioritizing the interests of retail or “Main Street” investors, particularly with respect to registered investment advisers that serve retail investors, cybersecurity and digital assets.
Editors’ Note: This is the first in our start-of-year series examining important trends in white collar law and investigations in the coming year. Up next: a look at trends in health care enforcement. Look for additional posts throughout the month of January.
As we look towards the SEC Division of Enforcement’s agenda for 2020,… More
John W.R. Murray and Christian Garcia recently authored a White Collar Crime and Government Investigations Alert about the annual report from the SEC’s Office of the Whistleblower, which provided details on enforcement priorities and whistleblower activity that are important for public and private companies, investment advisers and broker-dealers.
On November 6, 2019, the SEC Division of Enforcement published its annual report for fiscal year 2019. The report provides valuable insight, not only as to the Division’s performance over the past year, but also about its current priorities and where it will be focused in the near-term future. Overall, Enforcement’s program since 2017, when SEC Chairman Jay Clayton assumed leadership of the agency, has been shaped by five “core principles”: (1) focus on the retail investor;… More
SEC Continues to Seek Disgorgement Despite a Looming Supreme Court Case that Could Invalidate the Practice
On November 6, the U.S. Securities and Exchange Commission filed a civil complaint, captioned SEC v. Pierre, against a New York investment advisor for allegedly operating a multimillion-dollar Ponzi scheme. The SEC alleges that the defendant promised investors unreasonably high rates of return (20 percent every 60 days) and that he paid those investors, in the face of significant losses, with money from new investors.… More
The chief executive of a Boston-based biotech company, Frank Reynolds, was convicted of defrauding investors and obstructing an SEC investigation. Reynolds founded the biopharma startup PixarBio Corp. in 2013 and took the company public in 2016. By the next year PixarBio was in a tailspin and an SEC probe was opened. Reynolds is now facing possible jail time and millions in fines after he stoked the brief meteoric rise of PixarBio with promises of ground breaking inventions,… More
The Massachusetts Superior Court recently held that a qui tam relator’s analysis of publicly available information was subject to the public disclosure bar and that, no matter how involved or expert that analysis was, the relator was not the original source of the information alleged in the complaint. Thus, in Commonwealth ex rel. Johan Rosenberg v. JPMorgan Chase & Co., et al., SUCV2014-03323, Judge Kaplan,… More
Massachusetts Secretary of State Bill Galvin and his Securities Division are increasingly turning their attention toward securities offerings in the cannabis industry, as demonstrated by the June 19, 2019 filing of the second enforcement action against a cannabis business in the last two months. The filing was accompanied by a statement from Galvin warning of future sweeps in the industry.
The latest enforcement action, brought against Positronic Farms,… More
We have been writing about white-collar enforcement trends discussed at the Boston Bar Association’s recent White Collar Crime Conference (see here and here). Today we look at one area that was the subject of much discussion at the conference: securities enforcement.