The SEC Division of Examinations recently released its 2022 Division of Examinations “Priorities.” The 2022 Priorities provide critical insight into what the Division of Examinations (the “Division”) considers the most significant and highest potential risk areas for investors, and provides guidance for regulated entities on where to focus their compliance efforts.
Continue reading “SEC Examinations 2022 Priorities: Reg BI, ESG, Private Funds, Information Security & Operational Resiliency, and Crypto”
The lack of specific guidance regarding failure to supervise liability for chief compliance officers (“CCOs”) has been a controversial and opaque topic that both FINRA and the SEC have struggled with for well over a decade. Back on September 30, 2013, the SEC’s Division of Trading and Markets issued guidance with “FAQs” entitled “Frequently Asked Questions about Liability of Compliance and Legal Personnel at Broker-Dealers under Sections 15(b)(4) and 15(b)(6) of the Exchange Act.” These FAQs focused on the potential supervisory liability of compliance personnel. Just over two years later, on November 4, 2015, the then Director of the Division of Enforcement gave the keynote address at the 2015 National Society of Compliance Professionals, National Conference, in which he described a limited number of categories regarding the infrequent circumstances in which the SEC would consider charging a CCO. Despite these and other historical attempts at clarifying guidance, just this past year we have seen additional attempts to seek and obtain more regulatory clarity for this high-risk area. On June 2, 2021, the New York City Bar issued a Committee Report entitled “Framework for Chief Compliance Officer Liability in the Financial Sector.” Most recently and earlier this year, the National Society of Compliance Professionals (“NSCP”) offered a “Firm and CCO Liability Framework.” (More information on this can be found on NSCP’s website.) In this “Framework,” NSCP proposed that regulators consider CCO liability contextually in reference to resources made available to CCOs in the first instance.
Continue reading “FINRA Wades into the Controversial Deep-End of CCO Supervisory Liability”
On March 16, 2022, the Securities and Exchange Commission charged Crosby (Texas) Independent School District (Crosby) and its former Chief Financial Officer, Carla Merka, with misleading investors in a $20 million municipal bond sale, which was issued to pay down outstanding construction liabilities and fund new construction projects.
The SEC’s civil complaint alleges that Crosby failed to disclose $11.7 million in payroll and construction liabilities in connection with the January 2018 sale. The complaint also alleges the school district falsely reported that its general fund had $5.4 million in reserves in its 2017 fiscal year financial statements. According to the Complaint, Merka, who had ultimate authority over Crosby’s fiscal year 2017 financial statements and was its highest-ranking executive with financial or accounting experience, was aware that Crosby’s financial statements significantly underreported its existing liabilities and that she knowingly included the statements in the bond offering documents. In August 2018, seven months after the bond sale, Crosby’s leadership disclosed its financial difficulties. The disclosure led to employee layoffs for the school district and the downgrading of Crosby’s bonds.
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On February 14, 2022, the SEC announced charges against BlockFi Lending LLC – a New Jersey-based cryptocurrency lending platform – for failing to register its crypto lending product and violating the Investment Company Act of 1940. BlockFi agreed to a settlement in which it will pay a $50 million penalty, cease unregistered offers and sales of its lending product, and attempt to bring its business in compliance with the Investment Company Act within sixty (60) days. Additionally, BlockFi agreed to pay $50 million in fines to 32 states to settle similar charges.
BlockFi offered and sold to investors BlockFi Interest Accounts (“BIAs”), through which investors lent crypto assets to BlockFi and, in exchange, BlockFi promised variable monthly interest payments paid in cryptocurrency. The SEC’s Order sets forth the Commission’s findings. First, it concluded that the BIAs were securities because they were notes under Reeves v. Ernst & Young, 494 U.S. 56 (1990), and because they were sold as investment contracts under SEC v. W.J. Howey Co., 328 U.S. 293 (1946). Second, the SEC found that BlockFi was engaged in an illegally unregistered securities offering. Third, it found that BlockFi violated Sections 17(a)(2) and 17(a)(3) of the Securities Act by making materially false and misleading statements concerning its collateral practices and the risks associated with its lending activity. Finally, the SEC determined that BlockFi was operating as an unregistered investment company.
Continue reading “BlockFi to Pay $100 Million Over Crypto Lending Platform”
Two recent enforcement actions by the U.S. Securities and Exchange Commission (SEC), including a recent settled action against Kraft Heinz Co. (“Kraft”), underscore the agency’s renewed and continuing focus on accounting and financial reporting misconduct.
Two weeks ago, the SEC announced its third and latest enforcement settlement through its data-driven EPS (Earnings Per Share) Initiative. The EPS Initiative, run by the SEC’s Enforcement Division, used data analytics to detect potential reporting violations. The EPS Initiative has resulted in two prior actions. On September 28, 2020, the SEC publicly disclosed the EPS Initiative with two settlements, as discussed previously in this blog here.
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On July 13, 2021, the SEC announced charges against Stable Road Acquisition Company (“Stable Road”), its sponsor, SRC-NI, its CEO, Brian Kabot, Stable Road’s proposed merger target Momentus Inc.(“Momentus”), and Momentus’s founder and former CEO Mikhail Kokorich (“Kokorich”) for “misleading claims about Momentus’s technology and about national security risks associated with Kokorich.” All parties except Kokorich are settling with the SEC, paying total penalties of more than $8 million, amongst other remedies. The SEC’s litigation will proceed against Kokorich in the U.S. District Court for the District of Columbia. The Complaint seeks permanent injunctions, penalties, disgorgement plus prejudgment interest, and an officer-and-director bar against Kokorich.
Continue reading “SPAC Attack: The SEC Charges a SPAC for Failure to Launch”
Upcoming Changes to Rule 10b5-1:
The SEC is seeking to propose four key changes to executive stock trading plans under Rule 10b5-1 in October. Its Chairman, Gary Gensler, reported that the SEC is considering “freshen[ing] up Rule 10b5-1 after twenty years” to address insider trading concerns on June 7, 2021. Gensler’s comments come after a year of heightened insider trading reporting and the release of new research conducted by Stanford University and the Wharton School of the University of Pennsylvania finding that 10b5-1 plans have been used by executives to engage in “opportunistic, large-scale” sales of company stock. Gensler remarked the current plans under Rule 10b5-1 have led to a “real crack in our insider trading regime,” which he seeks to address in the upcoming months.
Continue reading “SEC Chairman, Gary Gensler, Seeks to “Freshen Up” Restrictions on Executive Stock Trading Plans under Rule 10b5-1”
On Tuesday, the U.S. Securities and Exchange Commission (“SEC”) announced that Gurbir Grewal will be the Director of the Division of Enforcement, effective July 26, 2021. Grewal has been the Attorney General of New Jersey since 2018.
Grewal’s appointment follows the previous appointment and abrupt resignation of Alex Oh for the same role. In contrast to Oh, Grewal has spent most of his career in government. Prior to his current role, Grewal was an Assistant United States Attorney in the Eastern District of New York and the District of New Jersey. From 2014 to 2016, Grewal led the Economic Crimes Unit for the District of New Jersey.
Continue reading “Chair Gensler Appoints NJ AG SEC Enforcement Director”