Senior Division of Enforcement officials from the U.S. Securities and Exchange Commission shared the stage on May 23, 2023, with SEC alumni, private practitioners, and other professionals in the field at the Securities Enforcement Forum West 2023.

While sophisticated participants in private markets have historically been seen as capable of bargaining for information or withstanding losses better than mom-and-pop investors, current events signal that the U.S. Securities and Exchange Commission intends to increase regulation and scrutiny of private companies.

The U.S. Supreme Court ruled in two related cases that federal district courts have jurisdiction to hear structural constitutional challenges to the adjudicative authority of the Federal Trade Commission and the U.S. Securities and Exchange Commission, and that litigants need not wait until the appeal of an adverse agency decision in the adjudication to raise such arguments in court.

As with past banking crises, the recent failures of Silicon Valley Bank and Signature Bank will likely put the directors and officers of affected banking institutions in the proverbial crosshairs as regulators second-guess their decisions and look for potential sources of loss recovery.

The U.S. Department of Justice announced significant new guidance on March 3, 2023, regarding the use of personal devices and the retention of corporate communications.

Perkins Coie is pleased to present the fourth edition of Labor Law Today—Year in Review, offering a summary of the past year’s most noteworthy and influential developments in traditional labor law.

In an unpublished decision issued on January 3, 2023, Division I of the Washington Court of Appeals strongly reaffirmed Washington law providing that, absent a showing of fraudulent corporate conduct or certain procedural irregularities, appraisal is the exclusive remedy for a shareholder of a Washington corporation seeking to challenge a corporate merger transaction. Merely alleging breach of fiduciary duty or fraud in a complaint, unsupported by facts, is an insufficient basis to avoid the exclusive appraisal remedy under Washington law.

At the Practicing Law Institute's SEC Speaks conference, held Sept. 8 – 9 in Washington, D.C., the U.S. Securities and Exchange Commission leadership espoused an ambitious agenda for both rulemaking and enforcement in 2022 and beyond. 

Deputy Attorney General Lisa Monaco announced several significant policy updates affecting the U.S. Department of Justice’s (DOJ) enforcement practices for both corporations and individuals

The annual SEC Speaks conference, in which SEC leadership highlights the agency’s current enforcement priorities and previews their agenda for the coming year, was held in Washington, D.C., on September 8-9. SEC leaders emphasized that regulation of the cryptocurrency market continues to be a top enforcement priority.

As discussed in this Update, the SEC’s enforcement agenda has ramifications on both the corporate and individual levels, including: (1) increased regulatory actions against market participants in cryptocurrency and blockchain-based token activities; (2) enhanced scrutiny over disclosures, including those related to digital assets, ESG matters, supply chain, and cyber incidents; and (3) a renewed focus on individual accountability.

On May 12, 2022, senior Division of Enforcement officials from the U.S. Securities and Exchange Commission shared the stage with SEC alumni, private practitioners, and other professionals in the field at the Securities Enforcement Forum West 2022.

Perkins Coie is pleased to present the third edition of Labor Law Today —Year in Review, highlighting the past year’s most noteworthy developments.

The Delaware Chancery Court recently sustained the legal viability of a putative shareholder class action brought against a SPAC’s directors, officers, controlling shareholder, and financial advisor based on an allegedly false and misleading proxy statement.

Perkins Coie partners Kevin Feldis, David Daniels, and Jamie Schafer offer environmental, social and governance corporate resolutions for the new year and highlight key action steps to take, starting with prioritizing ESG and conducting an assessment.

U.S. Securities and Exchange Commission (SEC) Chair Gary Gensler outlined a vigorous enforcement approach in his keynote remarks at the annual Securities Enforcement Forum.

Deputy Attorney General Lisa Monaco delivered an exacting message to the white-collar defense bar at the ABA’s 36th National Institute on White Collar Crime—the U.S. Department of Justice is stepping up its enforcement of corporate crime through several new initiatives.

After a year of watching and commenting on the recent proliferation in special purpose acquisition company (SPAC) IPOs and mergers, the SEC announced its first major enforcement action in the SPAC arena since the beginning of the explosion in mid-2020.

This first substantive installment in our multipart series addresses arguably the most significant implication of AMLA 2020: a new and expansive requirement to disclose corporate beneficial ownership, set out by the Corporate Transparency Act.

In a significant decision on securities class actions, the Supreme Court last week held that the generic nature of alleged misrepresentations will often be “important evidence of a lack of price impact” that can be used by defendants to defeat class certification

Employees’ use of unapproved messaging platforms for business-related communications—and their employers’ failure to monitor and preserve such communications, even if inadvertent—may also cause employers to provide incomplete responses to subpoenas or requests for information issued by prosecutors, enforcement staff, or private civil parties.

On New Year’s Day 2021, Congress overrode a presidential veto to pass the Anti-Money Laundering Act of 2020 (AMLA 2020), which amends and modernizes the Bank Secrecy Act (BSA).

With increasing frequency, securities and commodities regulators are focusing on employees’ use of personal mobile devices for business-related communications via applications that are not approved by employers or captured by employers’ archival systems.

The U.S. Supreme Court will hear oral argument on March 29 on a critical question for securities class action defendants: On a class certification motion, what evidence must a defendant put forward to show that the alleged misrepresentations had no impact on the defendant’s stock price, thus rebutting the Basic presumption of class-wide reliance?

The U.S. Supreme Court recently cast doubt on the criminal convictions of the one-time “King of Political Intelligence” David Blaszczak and three others for their role in an insider trading scheme.

Perkins Coie is pleased to present the second edition of Labor Law Today —Year in Review, highlighting the past year’s most noteworthy developments.

Top enforcement officials from the U.S. Securities and Exchange Commission recapped the agency’s accomplishments over the past fiscal year and previewed its upcoming enforcement priorities at this year’s SEC Speaks conference, held on October 8 and 9, 2020.

Hundreds of COVID-19-related class action claims have been filed in state and federal courts throughout the country.

This update provides some recent lessons learned with remote depositions that apply to both those who take and defend remote depositions.

In its June 10, 2020 opinion in Nguyen v. Endologix, the U.S. Court of Appeals for the Ninth Circuit applied the plausibility standard to a plaintiff’s securities fraud claims and affirmed the district court’s dismissal, with prejudice, of the purported class action complaint.

The U.S. Department of Justice on June 1, 2020, released another update to its “Evaluation of Corporate Compliance Programs” (the 2020 Update).

The new focus on remote witness interviews and testimony—a focus many believe will outlive the COVID-19 virus—presents new issues and implicates the way government and white collar defense lawyers investigate facts, interact with each other, and handle documents.

Parties to commercial contracts that may be affected by COVID-19 are now examining their force majeure provisions, as well as all other risk allocation provisions, to determine which party bears the cost of delay or impossibility of performance.

The U.S. Court of Appeals for the Second Circuit issued an opinion in United States v. Blaszczak on December 30, 2019 that could significantly affect the prosecution of criminal insider trading cases.

At this year’s PLI “SEC Speaks” conference held April 8-9, 2019, in Washington, D.C., the U.S. Securities and Exchange Commission’s leadership and staff showcased its 2018 successes and outlined initiatives that the SEC intends to pursue in 2019 and beyond.

The U.S. Securities and Exchange Commission (SEC) Strategic Hub for Innovation and Financial Technology (FinHub) published a framework on April 3, 2019, for analyzing whether a digital asset is offered and sold as a security under the federal securities laws.

Known by many names, including business email compromise fraud, CEO or CFO fraud, impersonation attacks, or “Man-in-the-Email” scams, cyber-related frauds involving spoofed or otherwise compromised business electronic communications continue to be an increasingly pervasive threat to businesses of all sizes, including public companies.

In what is believed to be the first criminal case examining whether so-called “initial coin offerings” (ICOs) are securities under U.S. law, Judge Raymond J. Dearie of the Eastern District of New York refused to dismiss the indictment against Maksim Zaslavskiy for a deceptive virtual currency scheme and fraudulent ICOs by REcoin Diamond Reserve Club.

Rejecting the analysis of every other federal appellate court to consider the issue, the Ninth Circuit recently held that most claims filed under Section 14(e) of the Securities Exchange Act of 1934, 15 U.S.C. § 78n(e), do not require a showing of scienter.

On Tuesday, a unanimous U.S. Supreme Court held that state courts have jurisdiction to hear “covered” class-action claims under the Securities Act of 1933, and that defendants may not remove such claims to federal court.

At this year’s PLI “SEC Speaks” conference held February 22-23, 2018, in Washington, D.C., the U. S. Securities and Exchange Commission’s senior leadership showcased its 2017 accomplishments, and previewed priorities for 2018 and beyond.

Highlighted in  Law360's: "In Case you Missed It:  Hottest Firms And Stories On Law360," on 03.02.2018.

The United States Supreme Court last week held in Digital Realty Trust, Inc. v. Somers that when a whistleblower reports suspected violations of securities laws internally, but not to the SEC, the whistleblower is not entitled to the protections of the Dodd-Frank Act’s anti-retaliation provisions.

The U.S. Securities and Exchange Commission (SEC) issued its first formal interpretative release on public company disclosure obligations relating to cybersecurity since the SEC Division of Corporation Finance’s guidance in 2011.

This update was republished in Bloomberg BNA's White Collar Crime Report on 03.16.2018, "New SEC Cybersecurity Guidance Reflects Clayton's 'Light Touch'," and Bloomberg's Big Law Business on 03.13.2018, "SEC on Cybersecurity: Jay Clayton’s “Light Touch."

A recent decision of the U.S. Court of Appeals for the Ninth Circuit cut back on the protections afforded by the safe-harbor provision of the Private Securities Litigation Reform Act of 1995 for public companies whose forward-looking statements are alleged to be false or misleading.

In a 5-4 decision in California Public Employees’ Retirement System (CalPERS) v. ANZ Securities, Inc., et al. (No. 16-373), 582 U.S. ___ (2017), the U.S. Supreme Court upheld, at the end of last month, a U.S. Court of Appeals for the Second Circuit decision dismissing as untimely a lawsuit filed by CalPERS against underwriters of public securities offerings by global investment bank Lehman Brothers.

Investigations and enforcement actions by the SEC and DOJ targeting potential illegal insider trading by foreign nationals, particularly by those in China, are increasing significantly.

In City of Dearborn Heights Act 345 Police & Fire Retirement System v. Align Technology, Inc. (Dearborn), the Ninth Circuit established additional requirements for pleading securities fraud claims based on statements of belief under Section 10(b), which already must be stated with particularity. Prior to the decision, a statement of belief qualified as a misrepresentation or omission if “there [was] no reasonable basis for the belief.”

In Somers v. Digital Realty, the Ninth Circuit joins the Second Circuit in holding that whistleblower protections apply to individuals who report securities violations internally, not just to those who report to the Securities and Exchange Commission.

At the annual “SEC Speaks” conference held February 23-24, 2017, in Washington, D.C., the U.S. Securities and Exchange Commission’s senior leadership reviewed the agency’s efforts in 2016 and previewed future trends.

This update was also published in Law360 on 02.27.2017, "SEC Speaks '17: Changing Priorities Amid Agency Transitions."

The SEC’s recent enforcement actions addressing severance agreement language that may violate whistleblower protections under the federal securities laws were the subject of an article by Perkins Coie attorneys Luis Mejia, Stewart Landefeld, Eric DeJong and Ann Marie Painter.

In a recent speech, SEC Enforcement Director Andrew Ceresney confirmed the SEC’s continued pursuit of investigations and enforcement actions relating to issuer reporting and disclosure, an area that remains a high priority for the SEC and other regulators.

The U.S. Commodity Futures Trading Commission (CFTC) proposed amendments last month to the regulations governing its whistleblower bounty program.

Several recent public statements make it clear that both the DOJ and the SEC are focused on finding fraud and other civil and criminal violations at private Silicon Valley companies.

In a move that follows long-standing complaints from the corporate community and the FCPA defense bar concerning the government’s vague assurances of “cooperation credit” in FCPA resolutions for self-reporting companies, on April 5, 2016, DOJ officials announced a new one-year FCPA “pilot program” with a Guidance that outlines a concrete set of standards defining what constitutes cooperation and what credit companies can expect to earn for that cooperation.

The SEC’s recent aggressive enforcement posture against chief compliance officers has raised many concerns, including whether the SEC’s actions are actually chilling robust compliance efforts.

This update was featured in Today's General Counsel on 03.17.2016 as "Is SEC Monday Morning Quarterbacking, By Targeting Compliance Officers?"

At the annual “SEC Speaks” conference held February 19-20, 2016, in Washington, D.C., the U.S. Securities and Exchange Commission’s senior leadership reviewed the agency’s efforts and priorities in 2015 and previewed upcoming trends for 2016 and beyond.

This Update was also published in Law360 in February 2016.

The Oregon Supreme Court unanimously held that a Delaware corporation’s “exclusive-forum” bylaw, which required that all litigation related to corporate governance be pursued exclusively in the Delaware Court of Chancery, was enforceable under both Delaware and Oregon law . . .

The SEC’s recent activity is part of a larger regulatory enforcement trend that should serve as a warning to all public companies that they would be wise to review and revise their cybersecurity policies, procedures and practices to ensure that they are adequate in today’s changing environment.

The Delaware Chancery Court ordered Dole Food Co. Inc. CEO David Murdock and General Counsel Michael Carter to pay Dole shareholders $148 million for fraud in connection with the company’s 2013 take-private deal. The August 27, 2015 decision is one of the largest awards ever to shareholders in a deal-related lawsuit.

The SEC recently announced an administrative settlement against Commonwealth Capital Management, LLC (CCM), a mutual fund adviser, and the members of the boards of two mutual funds for their failure to properly evaluate fund advisory contracts.

Securities issuers breathed a collective sigh of relief last week when the U.S. Supreme Court ruled in Omnicare Inc. et al. v. Laborers District Council Construction Industry Pension Fund et al. that Section 11 of the Securities Act does not apply strict liability to statements of opinions.

The U.S. Securities and Exchange Commission (SEC) touted an expansive regulatory agenda at this year’s “SEC Speaks” conference, held February 20-21, 2015, in Washington, D.C.  

In United States v. Newman, the U.S. Court of Appeals for the Second Circuit dealt a substantial blow to federal prosecutors’ epic crackdown on insider trading by raising the bar for the government’s burden of proof in “remote tippee” cases that have plagued the financial industry in recent years.

In a bench ruling in Swomley v. Schlecht, C.A. No. 9355-VCL (Del. Ch. Aug. 27, 2014), the Delaware Chancery Court relied on the six-factor test set out in Kahn v. M&F Worldwide Corp., 88 A.3d 635 (Del. 2014), to dismiss a challenge to a private company freeze-out merger at the pleadings stage. 

On Monday the Supreme Court issued its much anticipated decision in Halliburton Co. v. Erica P. John Fund, Inc., No. 13-317, 2014 WL 2807181 (U.S. June 23, 2014), rejecting all pleas to overturn the fraud-on-the-market presumption of reliance established in Basic Inc. v. Levinson, 485 U.S. 224 (1988).

More than 100 members of the Mexican legal and business communities gathered in Mexico City on March 25 and 26, 2014 to attend the American Conference Institute’s First Annual Mexico Summit on Anti-Corruption.

When a controlling stockholder’s buyout of a company has been challenged by minority stockholders, Delaware courts have generally subjected the transaction to entire fairness review, the most rigorous standard of review in corporate law

Recently, the U.S. Supreme Court limited the scope of the preemption of state law class actions afforded by the Securities Litigation Uniform Standards Act of 1998 (SLUSA) in Chadbourne & Parke LLP v. Troice, No. 12-79 (U.S. Feb. 26, 2014).

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.

Enforcement officials from the U.S. SEC’s Chicago Regional Office and the U.S. Attorney’s Office for the Northern District of Illinois gathered to discuss their enforcement initiatives at the “SEC & DOJ Hot Topics 2014” program on February 11, 2014.  Local regulators reinforced the theme that in 2014, the SEC will continue to adopt enforcement tools that historically have been used by their counterparts in criminal law enforcement.

In recent months, the Securities and Exchange Commission (SEC) has announced and implemented policy shifts that could compromise the availability of directors’ and officers’ (D&O) insurance coverage for entities and individuals. First, after years of not requiring admissions of wrongdoing unless there was an underlying criminal conviction, the SEC will no longer agree to “no admit, no deny” settlements in cases involving “widespread harm to investors” or “egregious intentional misconduct.”

On July 23, 2013, the SEC ventured into the electronic currency world by filing a civil complaint against virtual currency “trader” Trendon Shavers and his company, Bitcoin Savings and Trust, in the U.S. District Court for the Eastern District of Texas.

On June 13, 2013, the Securities and Exchange Commission announced the settlement of administrative proceedings against Revlon, Inc. In the settlement order, the SEC asserted that the company hid information regarding a 2009 “going private transaction” from its independent board members and minority shareholders in violation of Section 13 of the Securities Exchange Act of 1934 and Rule 13e-3 thereunder.

In this article, Pravin Rao, Keith Miller, Jose Lopez, and Charles Mulaney highlighted the SEC's enforcement priorities in 2013, as presented at "The SEC Speaks" conference held in Washington, DC, from February 22-23, 2013.  A continuation by the SEC to accelerate its efforts to protect investors and promote the integrity of the marketplace emerged from this year’s conference. At the heart of these efforts are increasingly effective programs in enforcement and examination.

In its long-awaited decision in Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, No. 11-1085 (U.S. Feb. 27, 2013), the U.S. Supreme Court held that plaintiffs in a securities-fraud class action do not need to establish the materiality of alleged misrepresentations in seeking class certification.

The annual “SEC Speaks” conference, in which Securities and Exchange Commission (SEC) representatives review the agency’s efforts over the past year and preview the year to come, was held on February 22-23, 2013.  A back-to-basics “investor protection” theme emerged from this year’s conference, as the SEC reposts in the wake of Chairman Mary Schapiro and Enforcement Director Robert Khuzami departing.

Earlier today, in a case titled Sell v. Sewell, (No. CV-12-0211-PR), the Arizona Supreme Court ruled that there is no implied private right of action for aiding and abetting securities fraud under the Arizona Securities Act (ASA).  Today’s ruling in Sell overturns the court’s ruling 34 years ago in State v. Superior Court, 599 P.2d 777 (Ariz. 1979), and continues the court’s strong policy of following the U.S. Supreme Court’s interpretations of analogous federal securities statutes.

On November 14, 2012, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) issued their long-anticipated Resource Guide regarding the agencies’ enforcement of the Foreign Corrupt Practices Act (FCPA).

On April 4, 2012, President Obama signed into law the Stop Trading on Congressional Knowledge Act.

In Credit Suisse Securities (USA) LLC v. Simmonds, No. 10-1261, ___ U.S. ___, 2012 WL 986812 (Mar. 26, 2012), the U.S. Supreme Court unanimously rejected the Ninth Circuit's 30-year-old rule that tolls the statute of limitations for short-swing profit claims under Section 16(b) of the Securities Exchange Act of 1934 until the insider discloses his transactions, typically in an SEC Form 4.

On March 19, 2012, the Securities and Exchange Commission announced that in exchange for his substantial cooperation during the agency's enforcement action against AXA Rosenberg Group LLC and its CEO, Barr M. Rosenberg, it would not take enforcement action against an unnamed former AXA Rosenberg senior executive.

On February 24-25, 2012, the U.S. Securities and Exchange Commission ("SEC") and its senior staff presented at the annual "SEC Speaks" conference to comment on major trends from the previous year and to forecast anticipated developments for 2012.

Just as more professionals have started taking advantage of social media to develop and grow their business, the financial services industry is following suit.  However, given the highly regulated nature of this industry, financial services professionals must be aware of special regulatory considerations when utilizing social networking tools.

On May 25, 2011, in a 3-2 vote, the U.S. Securities and Exchange Commission (“SEC”) adopted its final rules (“Rules”), as required under Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act” or the “Act”). The Rules implement the SEC’s hotly anticipated new whistleblower bounty program that rewards individuals who provide the SEC with information leading to successful enforcement actions that exceed $1 million in monetary sanctions. Eligible whistleblowers can earn a payout of 10% to 30% of any monetary sanctions collected because of the tipster's information.

On May 11, 2011, U.S. Commodities Futures Trading Commission’s (CFTC) chairman Gary Gensler addressed managers of private equity funds at the 13th Annual Global Private Equity Conference.

In Matrixx Initiatives, Inc. v. Siracusano, No. 09-1156 (U.S. Mar. 22, 2011), the U.S. Supreme Court unanimously held that a plaintiff can establish the materiality (for purposes of claims under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5) of adverse events experienced by users of pharmaceutical products without showing that the incidence of harm from those adverse events was statistically significant.

Understanding the many SEC, NYSE, Nasdaq and state law issues that affect their companies can be a bewildering task for directors and officers. To help with this is the just released fourth edition of The Public Company Handbook: A Corporate Governance and Disclosure Guide for Directors and Executives, a "plain English" guide for directors and executives seeking to familiarize themselves with legal matters facing public companies.

Section 220 of the Delaware corporation law provides that stockholders may inspect a corporation’s books and records for a “proper purpose.”  Normally, plaintiffs file Section 220 actions as an investigatory tool before commencing litigation—the sequence long favored under Delaware law.  Frustrated by abuses occasioned by the opposite approach, in May 2010, Vice Chancellor Leo Strine of the Delaware Chancery Court ruled that “once a plaintiff files a derivative suit, he has made his election,” and cannot thereafter seek books and records in Delaware.  On January 28, 2011, the Delaware Supreme Court reversed.

At this year’s annual “SEC Speaks” conference held on February 4-5, 2011, representatives from the U.S. Securities and Exchange Commission reviewed the SEC’s 2010 achievements and previewed upcoming 2011 enforcement initiatives.  While last year’s program sent a strong message of aggressive enforcement and regulation, the theme that emerged this year was the growing tension created by the SEC’s expanded mandate to regulate in the face of enormous budgetary constraints that threaten its ability to carry out its mission effectively.  In this regard, the message emerging from 2011’s SEC Speaks appears to be squarely directed to Congress, as the Commission plainly concedes that the bold possibilities created by the Dodd-Frank Wall Street Reform and Consumer Protection Act will require corresponding funding if the Commission is to succeed in meeting its mandate.

On October 21, 2010, the New York Court of Appeals issued an important ruling that significantly limits the ability of corporations and those who stand in their shoes (e.g., a bankruptcy trustee or a derivative plaintiff) to assert claims against third-party professionals for assisting or failing to detect wrongdoing by the corporation’s own management.

Effective November 1, 2010, the U.S. Sentencing Commission has changed how fines for companies are calculated under the U.S. Sentencing Guidelines. The inquiry has now shifted away from the (mis)conduct of the company’s high-level personnel and toward the effectiveness of the company’s compliance and ethics program.

The OECD has criticized other signatory nations for not living up to their anti-bribery obligations, and in its just released report also identifies certain discrete areas for U.S. improvement. But the bottom line message is that the U.S. government is a leader in anti-corruption enforcement.

On July 17, 2009, a federal district court in Texas dismissed an insider trading suit brought by the Securities and Exchange Commission (SEC) against Mark Cuban, the high-profile owner of the NBA's Dallas Mavericks.

Whether public or private, your company is at risk for being subpoenaed and investigated by the SEC. Please join Perkins Coie Partners, Jose Lopez, a former enforcement attorney with the U.S. Securities and Exchange Commission - Midwest Regional Office, and Sean Prosser, a former enforcement attorney with the U.S. Securities and Exchange Commission - Pacific Regional Office