May 22 2012
Broker-dealers and investment advisers beware
Enforcement policy and process
Supervisory liability for legal and compliance personnel
Financial statement and accounting cases
Foreign Corrupt Practices Act cases
Municipal securities and public pensions unit
At the recent SEC Speaks conference in Washington DC, Securities and Exchange Commission (SEC) Chairman Mary Schapiro(1) and senior enforcement officials vowed to increase investor protection through the SEC's expanded authority under the Dodd-Frank Act and initiatives designed to help the SEC enforcement staff to detect proactively and prevent securities law violations. In her speech, Schapiro pointed to numerous modernisation initiatives as central to this effort, including better hiring, more training, more sophisticated IT systems and better management structures. Schapiro noted that the SEC now has Wall Street traders, asset managers and quantitative analysts on staff alongside attorneys, economists and accountants, and has more than doubled its training budget since 2009. She also touted the new tips, complaints and referrals (TCR) system as allowing the SEC to better "triage" the information that it receives and use that information more effectively in terms of opening new investigations, directing information to existing investigations and uncovering and tracking emerging trends.
Schapiro pointed to the SEC's record 735 enforcement actions,(2) which returned more than $2 billion to investors, as evidence that these efforts to modernise the agency and bolster its knowledge base are already bearing fruit. Division of Enforcement Director Robert Khuzami echoed these remarks, saying that the agency's risk-based initiatives are paying off and that the SEC is more proactive, which has – in his view – resulted in more deterrence. Declaring a new "entrepreneurial" spirit and ethos, Schapiro and Khuzami made clear that the SEC intends to redouble its enforcement efforts across the board.
OCIE coordination with enforcement on the rise
Despite recent assurances from senior officials that the examination programme is not being used to generate enforcement cases,(3) Schapiro noted that referrals from the Office of Compliance Inspections and Examinations (OCIE) to the enforcement staff increased from 10% to 15% over the past two years, a result of continued close cooperation between the two departments. Over the same period, 42% of examinations identified significant findings, a roughly 33% increase over 2009 levels. Schapiro observed that the use of risk-based targeting in examinations has also expanded, and examination staff are working to develop models to identify anomalous patterns among registrants and to build risk assessment tools and evaluate risks across markets and registrants. Going forward, the SEC expects to expand its use of risk-based analytics to strengthen and streamline the examination process, particularly in the area of hedge fund and private equity oversight.
Enforcement focused on private equity and hedge funds
Bruce Karpati, co-chief of the SEC's asset management unit, reported that the SEC brought a record number of investment adviser and hedge fund adviser cases in 2011 and expects 2012 to be an active year as well, particularly in the private equity area. The unit has launched a private equity initiative and is looking hard at so-called 'zombie funds' with stale portfolio valuations, among other things.(4) The unit plans to expand its use of aberrational performance risk analytics to detect and identify suspicious conduct earlier,(5) and will focus on valuation issues and oversight of portfolio managers in this regard, in addition to private equity sponsors, mutual fund fees and fee arrangements, compliance programmes and oversight of such programmes.
Karpati stressed that a key tool for the unit has been the knowledge and insights gained from a panel of 15 former Wall Street professionals, including execution traders, private equity analysts, mutual fund operations personnel, portfolio managers and others with significant industry experience. These experts provide insight for examination and enforcement staff, lead training efforts and act as advocates for policy making.
More financial crisis cases to come
Khuzami highlighted the importance that financial crisis cases have played over the past year and remarked that there would be more such cases to come. To date, the SEC has charged 95 entities and individuals for conduct arising from the financial crisis; notably, over half of the individuals charged were senior officers. Jason Anthony, special counsel for the structured and new products unit, reported that the unit has led the pursuit of financial crisis cases in the residential mortgage-backed securities and collateralised debt obligation areas, and indicated that his unit is also looking closely at structured products sold to retail investors, with a focus on suitability and disclosures.
Over 200 cases eligible for awards
Perhaps reflecting how much attention the new SEC whistleblower programme(6) has received, Sean McKessy, chief of the new Office of the Whistleblower, led off the day's enforcement panel discussion. After repeating the publicly available statistics of the programme to date,(7) McKessy described the office's role as a "liaison" between the whistleblower community and enforcement staff, and said that since the inception of the whistleblower hotline, the office has returned more than 2,000 calls.(8) McKessy and his staff are engaged in internal and external outreach to ensure that the programme is widely known and understood, and he noted that the office is considering how to manage communications with whistleblowers while protecting the confidentiality of enforcement actions. Although there has been no publicly announced award to date, McKessy explained that the office has thus far identified and listed 230 cases as eligible for awards and is in the early stages of processing awards.
Most tips indicate internal reporting
Responding to a question about the SEC's controversial decision not to require whistleblowers to report wrongdoing internally before going to the SEC, McKessy noted that the rules create significant incentives to report internally, and suggested that these incentives are working.(9) He commented that of the TCR forms he has seen, the "significant majority" of whistleblowers claim to have already reported internally, and said that he was "hard pressed" to think of an example in which the whistleblower did not first report internally.(10)
Over three dozen agreements signed
A central part of the SEC's enforcement programme has been its recent emphasis on the value of cooperation and its use of deferred prosecution agreements and non-prosecution agreements.(11) David Bergers, director of the Boston regional office, explained that the initiative is designed to encourage insiders to "come forward early" in the investigation, and highlighted the fact that the SEC has entered into 37 cooperation agreements with individuals since the initiative was launched.(12) Bergers also highlighted that in fiscal year 2011 the SEC entered into two non-prosecution agreements with Fannie Mae and Freddie Mac and its first-ever deferred prosecution agreement with Tenaris SA for violations of the Foreign Corrupt Practices Act.(13)
Genuine cooperation pays
Andrew Calamari, associate director of the New York regional office, separately noted that the Seaboard(14) factors for charging corporations are "still alive and well", and pointed to the SEC's recent decision not to charge Credit Suisse as evidence that "genuine cooperation does indeed pay". In that matter, the SEC no-charged Credit Suisse while charging four of its bankers and traders for overstating the prices of subprime bonds during the height of the subprime credit crisis.(15) Calamari stressed that the SEC did not charge Credit Suisse because, among other things, it self-reported the violation, offered significant cooperation to SEC staff and terminated the four employees.
Dodd-Frank 180-day charge-or-decline deadline shortens Wells process
A little-known provision of the Dodd- Frank Act requires that the SEC either bring or decline an enforcement matter within 180 days of the Wells notice; in "complex actions", the enforcement director can extend this deadline once upon notice to the chairman of the SEC and can seek additional extensions, but only with the approval of the SEC.(16) Bergers stressed that the enforcement staff is taking this deadline "very seriously" and has "streamlined" the Wells process. He said that the staff will now "generally" grant counsel only one post-Wells meeting and "generally" will not continue negotiations if that will delay the staff's recommendation to the SEC.
'Neither admit nor deny' policy alive and well
Matthew Martens, chief litigation counsel, obliquely addressed the recent uproar surrounding Judge Rakoff's refusal to approve the SEC's settlement with Citigroup.(17) Martens declared that it is "general policy to accept [and recommend] a settlement if [the staff] gets what it could reasonably expect to obtain at trial", and argued that it would be "a mistake" to decline settlements because they did not include an admission of liability by the settling party. He went on to say that the SEC's policy in this regard is "not an outlier" and is consistent with and "tougher than" the policies of other federal agencies. Although he did not identify the matter, Martens responded to Rakoff's criticism that the Citigroup settlement left the public guessing about the underlying facts of the case by saying that "the public is not left wondering what occurred" because the SEC files "detailed complaints and orders" that are frequently accompanied by a statement from the defendant that it will endeavour "to do better". Martens also pointed out that of approximately 2,000 cases, judges have challenged settlements in fewer than 10 cases and – again obliquely referring to the Citigroup matter – only one judge has rejected a settlement. Martens stressed that the SEC is always willing to answer questions from the courts regarding proposed settlements, and concluded by making clear that the staff is "not doing anything differently" and has not (as some have suggested) seen more intransigence from defendants in light of these developments.
SEC scoring "impressive record" in litigation
Martens touted the SEC's "impressive" litigation record, saying that, for fiscal year 2011 and to date in fiscal year 2012, the SEC has prevailed 86% of the time if measured by defendant and 83% of the time if measured by case. He noted that the New York regional office won all nine of its trials during that time period.
Easier secondary liability, gatekeepers at risk
Merri Jo Gillette, director of the Chicago regional office, discussed the SEC's new enforcement powers under the Dodd-Frank Act and how they have affected the programme. Specifically, Gillette noted that the act lowers the liability standard for aiding and abetting to recklessness, and clarified that the SEC may bring cases against individuals who act as control persons.(18) Gillette went on to say that, given this expansion of aiding and abetting and control person liability, the SEC is now bringing more secondary liability cases. Separately, in discussing financial statement and accounting matters, Calamari made a point of noting that the SEC continues to pursue auditors and other "gatekeepers".
Janus decision affecting charging decisions
Joseph Brenner, the Enforcement Division's chief counsel, discussed the effect of the Supreme Court's recent decision in Janus Capital Group v First Derivative Traders on the enforcement programme. Janus was a private securities litigation matter in which the Supreme Court narrowed primary liability for false statements to those to whom the statement is directly attributable and who have ultimate control over its content.(19) According to Brenner, Janus is not making a difference in whom the SEC charges, but is affecting how parties are being charged. Specifically, Brenner said that the SEC is bringing aiding and abetting and control person liability charges "much more", sometimes instead of or in addition to primary liability charges.(20) Brenner stressed that, in the SEC's view, Janus applies only to claims under Rule 10b-5 of the Exchange Act, and not to other provisions such as Section 17(a) of the Securities Act and the scheme liability provisions of Rule 10b-5; he further indicated that, of the enforcement decisions interpreting Janus to date, four out of five have found that Janus does not apply to these other provisions.(21) Finally, Brenner noted that the courts are taking Janus's attribution requirement seriously, but are finding that more than one person can be attributed to the same statement, such as in a 10-K filing.
In the wake of the SEC's split decision affirming and dismissing failure to supervise charges against Ted Urban,(22) commissioner Daniel Gallagher (former general counsel at Ferris Baker Watts) waded into the issue, proclaiming that the SEC should act to clarify the circumstances in which legal and compliance personnel can properly be considered supervisors.(23) Noting that the SEC's 1992 Gutfreund 21A report provides some guidance as to when legal and compliance personnel may be deemed 'supervisors' for purposes of liability, Gallagher observed that once such personnel become involved in "formulating management's response to a problem, [they are] obligated to take affirmative steps to ensure that appropriate action is taken".(24) However, Gallagher noted that because legal or compliance personnel face supervisory liability where they fail to properly discharge that duty, this can have "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 argued that although the Urban case and Gutfreund 21A report provide some guidance, this issue "remains disturbingly murky", and called on the SEC and self-regulatory organisations to rectify this "dangerous dilemma" and provide a framework that encourages legal and compliance personnel to become involved in and provide the necessary guidance without fear of being deemed 'supervisors'.
Although the number of financial statement and accounting fraud cases decreased markedly in fiscal year 2011, Calamari and Howard Scheck, chief accountant in the Enforcement Division, emphasised that such cases are still "a core focus" for the SEC.(25) Calamari pointed out that cases against audit firms, which the SEC views as "gatekeepers", remain a central focus, and highlighted the SEC's actions against affiliates of three of the big four accounting firms over the past year.(26)
'Delay and pray' and 'extend and pretend' practices
Scheck noted that restatements have been down due, in his view, to the requirements of Sarbanes-Oxley, which provides for increased audit committee oversight, better internal controls and certifications by C-suite officials. Scheck then said that the enforcement staff is focusing on loan impairment issues – so-called 'extend and pretend' and 'delay and pray' situations – as well as accounting for long-term contracts. According to Scheck, two other interrelated areas of concern are the lack (in the staff's view) of sufficient analysis of qualitative materiality issues under Staff Accounting Bulletin No 99(27) and independence issues under Section 10A of the Exchange Act, which requires auditors to report certain wrongful acts to the SEC in certain situations. He emphasised that the SEC will be looking for situations where auditors do not follow up on red flags, as was the case in the recent PwC India and Livingston & Haynes actions.(28)
Kara Brockmeyer, chief of the Foreign Corrupt Practices Act unit, informed the audience that the unit now has a team of 30 staff members in the main office and six staff members in regional offices. Brockmeyer reported that the SEC brought 20 Foreign Corrupt Practices Act actions in fiscal year 2011, yielding a total of $255 million in sanctions. The SEC's largest settlement in fiscal year 2011 was with Johnson & Johnson, in which the company agreed to pay $48.6 million to settle allegations that its subsidiaries had bribed government doctors in several European countries and paid kickbacks to Iraqi officials to obtain contracts under the UN Oil for Food Programme.(29) Brockmeyer remarked that the Johnson & Johnson settlement and the recent $22 million settlement in Smith & Nephew were the first cases arising from a Foreign Corrupt Practices Act sweep of the pharmaceutical and medical device industry, and indicated that more of such cases can be expected in 2012.
Cooperation with foreign governments increasing
Brockmeyer noted that Foreign Corrupt Practices Act investigations are expanding as the SEC is receiving more and better cooperation from foreign governments, and stressed that this makes compliance with the act even more critical. She made clear that the unit has emphasised – and will continue to emphasise – the need for compliance programmes in which compliance with the act is part of a company's broader system of internal controls and procedures for ensuring accurate books and records.
More cases in pipeline
Sanjay Wadhwa, associate director of the New York regional office and deputy chief of the market abuse unit, made the unsurprising remark that the SEC is "very focused" on insider trading and indicated that staff in four SEC offices are currently engaged in "sprawling" insider trading investigations. Wadhwa summarised the Galleon and expert network cases,(30) and said that there are more such cases in the pipeline. Wadhwa recognised that there is significant discussion over whether wiretapping will become a routine tool in insider trading cases, but made clear that the SEC does not wiretap and will continue to use traditional techniques to uncover insider trading, and that a number of insider trading actions can be expected in the next six to nine months that do not involve wiretapping.
Consolidated audit trail to help in identifying cases
In her speech, Schapiro noted that the SEC's initiative to standardise reporting across trading platforms will assist in uncovering insider trading cases. According to Schapiro, the consolidated audit trail will expand the SEC's capacity to regulate and investigate trading practices by aiding the SEC in identifying suspicious trading activities, as well as allowing the SEC to reconstruct unusual trading activity more rapidly. The SEC plans to implement the consolidated audit trail with equities and eventually standardise reporting for fixed income and other asset classes. This is a high priority for the SEC, which expects to adopt a final rule this year.
Elaine Greenberg, chief of the municipal securities and public pensions unit, outlined the following five areas that the unit will focus on in 2012:
Greenberg noted that these areas of inquiry are designed to protect municipalities and investors and to deter broker-dealers, but added that the SEC is also looking at the conduct of municipalities, and pointed to the action against New Jersey for misleading investors in connection with a bond offering.(31)
The SEC's enforcement efforts in 2012 will be smarter, more efficient and more aggressive as a result of its efforts to improve its investigative tools and training, increase its knowledge base and enhance its coordination across programmes and offices. A stronger and increasingly more sophisticated focus on market participants and complex financial transactions and products can be seen, and the size and significance of cases in this area are likely to rise. The SEC is expected to continue its vigorous efforts in other areas as well, particularly regarding the Foreign Corrupt Practices Act and insider trading. Given the SEC's much-expanded secondary liability powers, public companies and gatekeepers can expect significant scrutiny when it comes to financial statement and accounting issues. Finally, in light of the SEC's focus on corporate compliance programmes and the new whistleblower programme, companies must be vigilant in detecting and preventing misconduct, and in responding appropriately when it occurs.
For further information please contact Christian Bartholomew or Sarah Nilson at Weil, Gotshal & Manges by telephone (+1 202 682 7000), fax (+1 202 857 0940) or email (firstname.lastname@example.org or email@example.com).
(1) The full text of Chairman Schapiro and other commissioners' speeches can be found at www.sec.gov/news/speech.shtml; none of the staff's comments were published. All speakers prefaced their remarks with the standard disclaimer that they were expressing their own views and not necessarily the views of the SEC.
(2) There has been some criticism and suggestion that this number inflates the SEC's enforcement efforts, since it includes delisting cases and 'follow-on' cases (ie, where the SEC seeks, in an administrative action, an industry bar after an individual has been enjoined in a federal court action; such cases are frequently relatively pro forma). See "SEC Enforcement Story Doesn't Add Up for 2011" (noting that follow-on and delisting matters accounted for 49% of enforcement actions in 2011), available at www.bloomberg.com/news/print/2012-03-02/sec-accounting-of-record-enforcement-year-in-2011-doesn-t-add-up.html.
(5) The SEC enforcement staff announced this initiative in December 2011. See SEC Release 2011-252, available at www.sec.gov/news/press/2011/2011-252.htm.
(7) The SEC received 334 tips from August 11 2011 – the date that the SEC rules became effective – to fiscal year-end on September 30 2011. See the SEC's Annual Report on the Dodd- Frank Whistleblower Programme for the Fiscal Year 2011, available at www.sec.gov/about/offices/owb/whistleblower-annual-report-2011.pdf. The office now has a staff of eight: McKessy, Deputy Chief Jane Norberg, five additional attorneys and a paralegal.
(8) McKessy did not indicate how many of these calls were tips or merely inquiries regarding how the programme works, but the SEC has devoted considerable resources to publicising it. Among other things, the programme is prominently featured on the SEC website home page.
(9) One such incentive is that the SEC can increase a whistleblower's award if he or she first reported internally. How the staff and the SEC will interpret and apply this provision and deal with numerous other nuances of the rules remains to be seen.
(10) Potential whistleblowers can submit tips to the Office of the Whistleblower through Form TCR, available at www.sec.gov/about/forms/formtcr.pdf. Question 5b of Form TCR asks whether the whistleblower has "reported this violation to his or her supervisor, compliance officer, whistleblower hotline, ombudsman, or any other available mechanism at the entity for reporting violations".
(11) For a more detailed discussion of the SEC's efforts in this area, see "Top SEC Enforcement Issues for Public Companies", available at www.weil.com/files/upload/Top_Enforcement_Issues.pdf.
(12) Unfortunately, but not surprisingly, these individual agreements are not public, so it is difficult to discern which issues they cover or how they are structured in terms of what the quid for the quo may be in any particular agreement.
(14) See the SEC's Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934 and Commission Statement on the Relationship of Cooperation to Agency Enforcement Decisions, SEC Exch Act Rel No 44969 (October 23 2001), available at www.sec.gov/litigation/investreport/34-44969.htm.
(15) See SEC v Serageldin, 12-civ-0796 (SD NY February 1 2012); and SEC Release 2012-23 (February 1 2012), available at www.sec.gov/news/press/2012/2012-23.htm.
(16) See Section 929U of the Dodd-Frank Act (Section 4E of the Securities Exchange Act 1934). Although there was no discussion as to whether such an extension has been sought, the SEC has granted an extension of time in which to bring an action in at least one instance. See In re Gualario & Co, LLC, Admin Proc No 3-14340 (August 11 2011) (90-day extension granted), available at www.sec.gov/alj/aljorders/2011/ap680cff.pdf.
(17) See, for example, SEC v Citigroup Global Markets, No 11-civ-7387 (SD NY), wherein Judge Rakoff rejected the proposed $285 million settlement between the SEC and Citigroup and criticised the policy as "depriv[ing] the Court of even the most minimal assurance that the substantial injunctive relief it is being asked to impose has any basis in fact".
(18) Gillette also discussed expanded remedies given under the Dodd-Frank Act, including that the SEC can now seek penalties in administrative proceedings against unregulated entities and individuals and has authority to seek penalties from secondary actors that were "causes" of direct violations.
(19) 113 S Ct 2296 (2011), finding that "[e]ven when a speechwriter drafts a speech, the content is entirely within the control of the person who delivers it. It is the speaker who takes credit – or blame – for what is ultimately said".
(20) This is clearly reflected in recent cases. See, for example,SEC v Sells, cv-11- 4941-HLR (ND Cal October 6 2011), in which alleging defendants "orchestrated a scheme to defraud the investors of Hansen Medical by using undisclosed trickery to make it appear that the company had successfully sold its most expensive product when it had not actually completed the sales".
(21) Brenner is probably referring to SEC v Mercury Interactive LLC, 2011 US Dist LEXIS 134580 (ND Cal November 22 2011); SEC v Daifotis, 2011 US Dist LEXIS 83872 (ND Cal October 7 2011); SEC v Book, 2011 US Dist LEXIS129673 (SD NY November 9 2011); and SEC v Landberg, 2011 US Dist LEXIS 127827 (SD NY October 26 2011).
(22) In the Urban matter, the enforcement staff brought charges against Urban for allegedly failing to supervise a rogue broker; although Chief Administrative Law Judge Brenda Murray exonerated Urban, finding that he acted reasonably under the circumstances, she declined to find that he was not a supervisor because his "opinions on legal and compliance issues were viewed as authoritative and his recommendations were generally followed", and because he dealt with the rogue broker as a member of the firm's credit committee. The decision sent shockwaves through the legal and compliance community and, on appeal to the SEC, numerous groups filed amicus curiae briefs urging the SEC to reject the finding that Urban had acted as a supervisor. Unfortunately, a split SEC recently dismissed the proceeding without addressing this issue. See In re Urban, Exch Act Rel No 66259 (January 26 2012) (dismissing proceeding), available at www.sec.gov/litigation/admin/2012/34-66259.pdf; and In re Urban, Admin Proc No 3-13655 (September 8 2010), available at www.sec.gov/litigation/aljdec/2010/id402bpm.pdf.
(23) The full text of this speech can be found at www.sec.gov/news/speech/2012/spch022412dmg.htm.
(25) While the Enforcement Division has established five specialised units to focus on particular enforcement areas (Foreign Corrupt Practices Act, asset management, new and structured products, market abuse and municipal securities), four of the five are focused on activity by market participants (eg, broker-dealers and investment advisers), and there is no specialised unit for financial statement and accounting cases.
(26) See In re Lovelock & Lewes (and other PricewaterhouseCoopers affiliates), Admin Proc No 3-14321 (April 5 2011); In re KPMG Australia, Admin Proc No 3-14276 (February 28 2011); and SEC v Deloitte Touche Tohmatsu CPA Ltd, No 1:11-MC-00512 (D DC September 8 2011) (subpoena enforcement action).
(27) See SEC Staff Accounting Bulletin No 99 – Materiality (August 12 1999), expressing the view that it is inappropriate to rely solely on quantitative benchmarks to assess materiality in preparing financial statements and performing audits, available at www.sec.gov/interps/account/sab99.htm.
(30) Wadwha indicated that the Galleon cases involve over $93 million in illicit gains, and to date the SEC has charged 31 individuals and settled with 28 in connection to these investigations. The expert network cases involve over $110 million in illicit gains, and the SEC has charged 22 defendants, of which 10 have settled, two are near settlement, three have cooperated and seven are actively litigating.
(31) See In re State of New Jersey, Admin Proc No 3-14009 (August 18 2010); and Press Release 2010-152 (August 18 2010), available atwww.sec.gov/news/press/2010/2010-152.htm.
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Christian R Bartholomew
Sarah S Nilson