02.24.2014
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Updates
The annual “SEC Speaks Conference,” where the U.S. Securities and Exchange Commission (SEC) and its senior staff review the major developments from the prior year, and preview the SEC’s enforcement priorities for the upcoming year, convened in Washington D.C. on February 21-22, 2014. From the outset, it became clear that the SEC is eager to complete and move past its extensive rule-making responsibilities under the Dodd-Frank Act and JOBS Act, and to use the resulting enhanced statutory regime to keep pace with an ever-changing market. To compensate for staff and financial resources that the SEC claims are already stretched thin, it expects data analytics tools to enhance nearly every aspect of its operations in 2014. This includes relying on the new Market Information Data Analytics System (MIDAS) and improved statistical analysis of market participant data.
SEC Chairman Moves Past Rule Making to Enforcement
SEC Chairman Mary Jo White expressed her eagerness to move beyond the more-than- 100 rule-making mandates Congress placed upon the SEC under the Dodd-Frank Act and JOBS Act, so that the agency can direct its resources towards other responsibilities. When she joined the SEC in April 2013, Chairman White set three priorities and used her platform at SEC Speaks 2014 to address the SEC’s progress in those areas:
Enforcement – Referring to the SEC’s program as “robust” in order to vigorously and comprehensively enforce the SEC’s rules, Chairman White reaffirmed that enforcement is one of the SEC’s top priorities, citing 169 charges tied to the financial crisis (including 70 against high-ranking executives) that resulted in $3.4 billion in disgorgement and other civil penalties. She also stated that the SEC would continue to require admissions of wrongdoing in settlements in order to bolster the public’s confidence, especially in cases involving egregious conduct, a large number of victims, a large amount of money at risk, obstruction of the investigative process, or a high risk of future harm to markets.
Meanwhile, the Enforcement Division’s Financial Fraud Task Force will continue to analyze market trends and patterns of conduct that present risk indicators for financial fraud. Key issues include revenue recognition, asset valuation and management estimates. The focus of the task force will be to identify material misstatements in financial statements and required disclosures more quickly, so that the SEC can launch investigations immediately upon the discovery of risk factors. The implication for defense counsel is that the SEC will undoubtedly want to move cases more quickly and resolve them in a more expeditious manner. Thus, as a result of the SEC’s ability to gather and analyze voluminous data faster than ever before, SEC defense counsel will need to be even more responsive and nimble in mounting their defense.
Rule Making – Congressional mandates from the Dodd-Frank Act and JOBS Act dictated a significant portion of Chairman White’s agenda upon her arrival at the SEC. She emphasized that the SEC has been responsive to this task, passing regulations in various areas, including identity theft, cross-border swap transactions, money market funds, private funding, crowd sourcing, financial responsibility rules for broker-dealers, registration of municipal advisors and regulations implementing the Volcker Rule.
Equity Markets – Chairman White also emphasized a variety of priorities that impact the equity markets. The SEC will be scrutinizing the roles and duties of broker-dealers and investment advisors, focusing on fixed income markets, and engaging with other regulators (domestic and foreign) to identify and address common risks in financial systems. Additionally, Chairman White prioritized a review of the equity market structure, using data analytics tools such as MIDAS, to inform review of proposals designed to increase both the market’s liquidity and quality.
Enforcement: Touting an Aggressive Agenda for 2014
After a busy year in which the Division of Enforcement filed nearly 700 enforcement actions – constituting a 10% increase over fiscal year 2012 and a 22% increase over fiscal year 2011 – senior staff highlighted recent successes and the Enforcement Division’s evolving strategies.
Recently appointed Director of Enforcement Andrew Ceresney commented on the increased focus within the SEC of obtaining admissions as part of its settlements. Director Ceresney also noted that the SEC has recently filed a number of settled matters with admissions of wrongdoing, including the SEC’s February 21, 2014 settlement with Credit Suisse. In the settlement, the Zurich-based bank agreed to pay $196 million and admit wrongdoing to settle civil charges that it violated the federal securities laws by providing financial advisory services to U.S. clients without undergoing the required registration with U.S. regulators. Echoing Chairman White’s opening comments, Director Ceresney stated that the SEC will continue to aggressively pursue admissions of wrongdoing in cases with egregious misconduct that either harmed, or had the potential to harm, investors.
FCPA Unit Predicts Steady Flow of Enforcement Actions - Kara Brockmeyer, Chief of the SEC’s Foreign Corrupt Practices Act (FCPA) Unit, noted that while enforcement activities seemingly tapered in fiscal year 2013, the FCPA Unit was off to a strong start in 2014, having brought an equal number of cases so far in this fiscal year as it did all last year. She stated that the SEC will continue to bring cases that span “old school” bribery, e.g., Weatherford and Alcoa; travel and entertainment abuses, e.g., Diebold; and even cases involving improper charitable donations, such as the allegations included in the Stryker action. She also noted that companies can expect to see more cases resolved in administrative proceedings, and that the FCPA Unit is considering bringing litigated FCPA cases through administrative proceedings as well.
Chief Brockmeyer warned that she views both third-party intermediaries and travel and entertainment expenditures as high-risk areas. She stated that companies should continue to be vigilant in conducting adequate due diligence on third parties before contracting with them. Chief Brockmeyer also emphasized the importance of both Compliance and Internal Audit in maintaining adequate controls. To test those controls, Chief Brockmeyer suggested that companies should be conducting the same type of testing on anti-bribery internal controls as they would do for purposes of SOX certification.
Turning to the area of cooperation credit and non-prosecution agreements (NPAs), Chief Brockmeyer stated that the 2013 Ralph Lauren case is a good example of where such an outcome was warranted. Several factors that weighed in favor of that favorable NPA settlement resulted from the company: self-reporting the suspected bribery within two weeks of finding violations; discovering the violations on its own through internal monitoring activities; assisting the SEC’s investigation by providing English language translations of foreign documents, and bringing witnesses to the United States for questioning; and undertaking extensive remediation efforts, including a worldwide investigation to determine if there were any systemic issues. Finally, Chief Brockmeyer added that it was significant that Ralph Lauren’s investigation determined that the bribery issues were confined to one country; if the violations were found to be more widespread, the company would likely still have received cooperation credit, but would not have been a candidate for a NPA.
Chief Brockmeyer stated that the SEC will continue to address Compliance Monitorship requirements on a case-by-case basis. Recently, the SEC has imposed both “full” monitorships, as well as some “hybrid” monitorships that include 18 months of monitoring, combined with 18 months of self-monitoring by the company. She noted that some companies might even qualify for just internal monitoring, but all these considerations depend heavily on the state of the company’s compliance program.
Finally, Chief Brockmeyer indicated that whistleblower tips continue to serve as a primary lead for the SEC in identifying potential FCPA actions. The SEC is using these tips to identify specific sectors or industries that are not paying sufficient attention to corporate compliance or internal controls. The SEC is also focused on enforcing the anti-retaliation whistleblower provisions in Dodd Frank. In some instances, the SEC has observed that companies have required employees to sign confidentiality agreements that appear to bar an employee from becoming a whistleblower. She opined that such agreements would violate Dodd-Frank’s prohibition against regulated entities taking actions to impede employees from making whistleblower complaints.
Litigation Strategy Evolving Based on Wins and Losses - Joseph Brenner, the Chief Counsel of Enforcement, observed that the SEC is utilizing statutes and rules that either had never been employed before, or had not been used in a very long time, to refine its enforcement efforts. He indicated that post-Janus, a 2011 U.S. Supreme Court ruling limiting the circumstances in which securities fraud defendants can be held primarily liable for the misstatement of others, the Enforcement Division will likely enhance its use of section 20(b) of the Exchange Act because the statute does not require proof of an underlying primary violation in order to impose liability in certain false statement cases.
Matthew Solomon, the Chief Litigation Counsel for Enforcement, highlighted the Second Circuit’s February 18, 2014 decision in SEC v. Contorinis, which held that those found liable for insider trading could be required to disgorge not only personal profits, but also any profits of the exploitation that they channeled to others. While it has yet to be seen if other circuits will follow this decision, Solomon noted that the case provides the SEC with a powerful tool for settlement negotiations in cases involving disgorgement as a possible remedy.
Charlotte Buford, the Assistant Chief Counsel for Enforcement, shed light on the circumstances under which the SEC chooses to bring actions in federal district court instead of as administrative proceedings. The factors the SEC considers include: the speed at which the matter will proceed; whether the facts or circumstances of the case require the regulatory expertise of an administrative law judge; whether the SEC requires the broader discovery available in district court; the likelihood of settlement; and the relief being sought by the SEC.
SEC Reliance on Data Analytics Increasing - DERA, the Division of Economic and Risk Analysis, is a fairly new division that was established in 2009. To support the SEC’s litigation efforts, DERA’s economists review expert testimony proffered by defendants in enforcement actions, as well as perform calculations in the settlement negotiation context. Typically, DERA’s economists look to exploit internal inconsistencies in a defendant’s methodology for loss calculation to advocate the SEC’s position.
During the Enforcement Division’s remarks, Jina Choi, the San Francisco Regional Director, reflected on the SEC’s increasing reliance on technological tools to detect and prosecute fraud in light of the limited resources available to the SEC. Choi cited as examples i2 analyst notebooks and an analytical platform that the agency is developing to marry internal SEC data with external documents. She also highlighted the importance of the SEC’s digital forensic lab, which allows the SEC to preserve, collect and analyze information on electronic devices, even when that information has been deleted or wiped. These tools permit the SEC to monitor and analyze much more activity and data than it otherwise could with manpower alone.
SEC Still in “Wait and See” Mode as Judicial Developments Loom
The SEC’s Deputy General Counsel Michael Conley noted that the SEC is still awaiting the Second Circuit’s decision in SEC v. Citigroup Global Markets Inc., where a New York district judge refused to enforce the SEC’s contemplated settlement for not being fair, reasonable, adequate or in the public interest since it contained a “no admit/deny” provision. The Second Circuit heard oral argument in February 2013 but has yet to issue an opinion. With more than a year gone by since oral argument, Conley noted that the SEC remains in “wait and see mode.”
On March 5, 2014, the U.S. Supreme Court will hear oral argument for a second time in Halliburton Co. v. Erica P. John Fund, which may determine the continued viability of the “fraud on the market theory.” That theory, established by the Court’s 1988 decision in Basic Inc. v. Levinson, presumes that securities investors who purchase stock on efficient markets have relied on a defendant’s misstatements because such misstatements are reflected in the company’s stock price. Halliburton has challenged this presumption, asking the Court to overrule Basic or, at a minimum, modify the threshold for invoking the presumption of reliance. Deputy GC Conley noted that the SEC has filed an amicus brief urging the Court to reject Halliburton’s request. A reversal of Basic would impact the SEC’s ability to bring enforcement actions as well as have significant implications for securities class actions under Section 10(b) and Rule 10b-5.
Investment Management: Adapting Outlook to Keep Pace with Evolving Markets
In order to support its priorities of protecting investors, ensuring fair disclosure practices and facilitating appropriate market innovation in 2014, the Division of Investment Management has engaged with senior management at various investment firms to gather information on “macro-level” financial and operational risks to help it identify market trends and modernize the SEC’s data collection efforts.
The Division noted three recent trends it has begun to closely monitor. First, there has been an uptick in the use of certain mutual fund names that suggest safety or reduced risk. Because the SEC is concerned that investors might be confused or misled by the use of such “protective” terms, the Division issued a rule requiring that such terms be either removed or accompanied by qualifying language warning investors of inherent risks. Second, the Division is monitoring the increase in mutual funds investing in commodity-linked derivatives because it is concerned that investors might not be aware of inherent commodities-based risks that are not necessarily associated with the cash market. Third, the Division has focused on fund proxy statements with the “alphabet soup of forms” that registrants were required to navigate, in the hope that the Division could find solutions to reduce the duplication inherent in the current reporting regime.
The Office of Compliance Inspections and Examinations (OCIE) highlighted cyber-security and data breaches as common themes in its 2013 examinations. One of its priorities for 2014 was to promote compliance by using analytics tools to help registrants self-remediate. Erozan Kurtas, the Assistant Director of the Quantitative Analytics Unit, discussed some new analytics tools, such as NEAT (National Exam Analytics Tools), which can process “big data,” namely, data greater than 1 terabyte that is generally too big for a single machine to process. These new analytical tools will allow OCIE to collect many years’ worth of data in an automated fashion, and convert the data to analyze suspicious activity or potential violations under Regulation M, which regulates potentially manipulative practices by underwriters, issuers, selling securityholders and other participants in securities offerings.
Mavis Kelly, the Assistant Director, Office of Investment Adviser/Investment Company Examinations, discussed a new initiative by the National Exam Program called the Never-Before-Examined Initiative, which targets registered investment advisers that have been registered for three years or more, yet have never before been examined. The initiative is detailed in a letter that OCIE sent to certain registrants on February 20, 2014. (Click Here to Read OCIE's Letter).
Looking Ahead
The SEC is clearly looking to turn the corner from rule making to rule enforcement. During their annual turn on the bully pulpit, several of the Commissioners themselves remarked that the congressional rule-making mandates of the Dodd-Frank Act and the JOBS Act have profoundly affected the scope and priorities of the SEC, which has in turn adversely impacted both staff morale and enforcement resources. Emerging into what was characterized as the “post-financial crisis” world, the SEC leadership also noted that the market in many ways has become more complex and less transparent. To face these new challenges, the SEC stands ready to use its traditional statutory toolbox, enhanced by hundreds of newly enacted rules and technological resources, to identify and investigate financial fraud. However, given the overwhelming task at hand, the real question may likely be not when, but whether, the market’s watchdogs can gain sufficient traction to capitalize on their new arsenal in some meaningful fashion.
© 2014 Perkins Coie LLP
