Chair Gensler Overhauls PCAOB

On Friday June 4, 2021, Securities and Exchange Commission Chair Gary Gensler removed the head of the Public Company Accounting Oversight Board (PCAOB), an independent agency created by the Sarbanes-Oxley Act of 2002 that is charged with setting standards and overseeing audits of public companies and broker-dealers. The move is part of a broader overhaul of the PCAOB announced by the SEC that includes soliciting nominations for all five of the PCAOB’s board positions, including board positions currently filled by members whose terms have not yet expired.

The removed chair of the PCAOB, William Duhnke III, was appointed by former President Trump and had held the position since January 2018. In 2020, President Trump called for the PCAOB to be folded into the SEC by 2022, losing its independent watchdog status. In a recent lawsuit filed against Duhnke, the PCAOB’s former chief risk officer alleged that Duhnke shared President Trump’s sentiment and called the PCAOB a “frivolous organization” that should be combined with the SEC.

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NYC Bar Association Proposes a CCO Enforcement Framework

Responding to a “concern” from Chief Compliance Officers (CCOs) to the purported increase in enforcement actions holding compliance personnel personally liable, the New York City Bar Association recently released a framework of nonbinding factors it believes the SEC should consider when making CCO charging decisions.  The report, titled “Framework for Chief Compliance Officer Liability in the Financial Sector” (Framework), is available here.  According to the Framework, it claims that the risk of facing a career-ending enforcement action has deterred qualified individuals from assuming or remaining in the all-important CCO role.

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Robinhood vs. Massachusetts’ Secretary of the Commonwealth: A Battle for the Ages over Massachusetts’ New Strict Fiduciary Duty Rule

Sandra D. Grannum, James G. Lundy and Heaven L. Chandler discuss Robinhood’s alleged violation of Massachusetts’ new fiduciary duty rule for broker-dealers on the Broker-Dealer Regulations and Insights blog. Massachusetts’ Secretary of Commonwealth, William Galvin, filed a regulatory complaint raising three different violations against Robinhood. The complaint attempts to ban the trading app for violating the State’s fiduciary duty rule which requires broker-dealers to act in the best interest of their clients. This new rule, passed in February 2020, was created in response to the Securities and Exchange Commission’s Regulation Best Interest (Reg BI). During this past year, due to COVID-19 and other meme-based investment activities on the application, Robinhood accumulated over 3 million new users in the first four months of 2020. Galvin’s concerns revolve around the 500,000 customers in Massachusetts, with accounts totaling over $1.6 billion.  For more information, please read the post on the Broker-Dealer blog.

We previously posted another discussion on the New York best interest fiduciary rule for insurance that was recently struck down. This has now also been posted to the Broker-Deal Blog.

What May Be In Store For The Investment Management Industry Under Chair Gensler: A Podcast

In Faegre Drinker’s “Enforcement Highlights” third podcast, Jim Lundy moderates a panel with Investment Management Group partner Jillian Bosmann and fellow SEC and Regulatory Enforcement partner David Porteous discussing what the plans may be for the SEC’s Divisions of Investment Management, Examinations, and Enforcement and the investment management industry under the leadership of new SEC Chair Gary Gensler. Topics also include the Division of Examination’s 2021 Annual Report, the SEC’s ESG Risk Alert, and FINRA’s anticipated relationship with the SEC under Chair Gensler.

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SEC Pierces Under Armour With Accounting Misstatement Settlement

On May 3, 2021, the Securities Exchange Commission (“SEC”) announced charges against Under Armour Inc. (“Under Armour”) for “misleading investors as to the bases of its revenue growth and failing to disclose known uncertainties concerning its future revenue prospects.” Under Armour agreed to settle the case, paying a $9 million fine. The settlement stems from allegations that Under Armour violated Sections 17(a)(2) and (3) of the Securities Act of 1933, which do not require proof of scienter, as well as reporting provisions of the federal securities laws, by failing to tell investors that it pulled forward orders to meet its quarterly targets in order to appear healthier.

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Biden’s SEC and ESG, Issuers, & Enforcement: A Podcast

In Faegre Drinker’s “Enforcement Highlights” second podcast, Jim Lundy moderates a panel with fellow SEC and Regulatory Enforcement partner Mike MacPhail and Capital Markets Team Co-Leader Beth Diffley to discuss Gary Gensler’s recent confirmation as Chair and the anticipated impact on the SEC and its future.

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SPAC Attack! SPAC IPOs Are Booming

It’s estimated there are more than 400 SPACs in the market looking for M&A targets. Some of these SPACs come with celebrity endorsements, and there’s even a rap video, thanks to Cassius Cuvée and Mags Lionne. Clearly, this movement can’t be ignored. This article gives a generalized summary of the typical structure, as well as some high-level questions you should be asking as a participant to, amongst other issues, manage litigation and SEC enforcement exposure.

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Speech by New Commissioner Provides Insight into Biden Administration SEC

As we await the impact of the Biden Administration on the direction of the SEC, we have been given a glimpse of what is to come in a speech last month by the newly confirmed commissioner, Caroline Crenshaw.  Specifically, Commissioner Crenshaw’s speech focused on “individual culpability” and penalties in the SEC’s enforcement program.  Strikingly, the Commissioner decried the SEC’s past stance on penalties:  “It is clear to me that the Commission has historically placed too much emphasis on factors beyond the actual misconduct when imposing corporate penalties – including whether the corporation’s shareholders benefited from the misconduct, or whether they will be harmed by the assessment of a penalty.  This approach is fundamentally flawed.”  Commissioner Crenshaw then stated that she thinks the SEC should revisit its approach to corporate penalties.  It remains to be seen how Crenshaw’s remarks will be observed at Enforcement with respect to corporate penalties, let alone the application of her observations about the focus on “factors beyond the actual misconduct” could also be extended to individuals who are similarly facing substantial penalties for factors beyond their misconduct.

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