Enforcement Highlights

Ubiquitous Use of WhatsApp and Other Unrecorded Internal Communications Result in Substantial Penalties in Recent SEC, CFTC Actions

The SEC has, for many years, used broker-dealer and associated persons’ failure to create and maintain books and records as a basis for the imposition of serious penalties. In recent actions, it appears to be continuing—and upping the ante on—its enforcement in this area.

Simply stated, it is increasingly imperative for broker-dealers and investment advisory businesses, among other entities, to develop and maintain policies and procedures to ensure that their records are properly created, maintained, and produced to the appropriate agency upon request—including that employees’ communications related to their business should be made only through approved channels, and approved and monitored devices, such that those communications can be maintained and preserved for production as required by federal securities laws and regulatory authorities, and in any pending or threatened litigation.

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Reg BI: What’s Going On and What May Happen Next?

Chicago partner, Jim Lundy, co-leader of the firm’s White Collar Defense and Investigations team and the firm’s SEC & Regulatory Enforcement Defense practice, provides a end of year update on Reg BI. In this blog post, Jim discusses the events that have taken place since SEC Chair Gary Gensler’s last statements on Reg BI early in 2021 including the recent speech from SEC Commissioner and former Acting Chair Allison Herren Lee and deficiency letters across the brokerage industry.

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SEC Highlights New Risks for Mutual Funds and ETFs

On October 26, 2021, the U.S. Securities and Exchange Commission’s Division of Examinations (Exams) issued a Risk Alert regarding mutual funds and exchange-traded funds intended to “highlight risk areas and assist funds and their advisers in developing and enhancing their compliance programs and practices” as they pertain to retail investors. This Risk Alert is the result of the registered investment companies (RIC) initiatives that were announced in a Risk Alert in November of 2018, and observations made by the staff of Exams in regard to the RIC Initiatives.

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The SEC’s Renewed Focus on Accounting Misconduct

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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Is SEC “Regulation by Enforcement” for the Digital Asset Industry Next Up?

Cryptocurrencies are one of the fastest growing asset types worldwide. Cryptocurrencies, as an asset class, total over $1.5 trillion in market capitalization. With the rapid growth of this asset type, SEC Chair Gary Gensler shared his views for the SEC in this area. At a recent conference, Chair Gensler continued to broadly characterize most digital assets as “investment contracts,” placing cryptocurrencies within the scope of the SEC’s enforcement powers. During his remarks at the Aspen Security Forum on August 3, Chair Gensler stated, “many of these tokens are offered and sold as securities” because they meet the definition of an “investment contract.” As established by the U.S. Supreme Court under the “Howey Test”, investment contracts are defined as agreements in which a person invests money in a common enterprise, expecting profits based on the efforts of others. Investment vehicles that satisfy the “Howey Test” definition for investment contracts are securities that fall within the jurisdiction of the SEC.

Chair Gensler further stated that the cryptocurrency area currently “lacks the typical investor protection guardrails” and that he has asked Congress for additional authority to “prevent transactions, products and platforms from falling between regulatory cracks.” Chair Gensler’s views appear supported by the SEC’s Division of Enforcement having brought 75 enforcement actions over the last decade. However, others are not convinced that the SEC has clearly defined jurisdiction.

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Robinhood’s $70 Million FINRA Penalty: Growing Pains, Reliance on Technology and Push to Offer New Products

Robinhood, “an introducing broker-dealer that provides commission-free trading to retail customers through its website and mobile applications,” recently agreed to pay a record-setting amount of $70 million — consisting of a $57 million fine and more than $12.5 million in restitution to 2,832 customers — to resolve a myriad of FINRA rule violations dating back to 2016. While the lengthy Letter of Acceptance, Waiver, and Consent No. 2020066971201 (“AWC”) reads like a final exam in a corporate compliance and securities regulation course, there are two key takeaways that merit particular emphasis. First, an overreliance on technology without sufficient safeguards or personal verification can create substantial liability. Second, making claims about new, nontraditional products being offered directly to customers can be deceptive or misleading and in violation of FINRA Rules 3110 and 2010, if FINRA determines the communications lack sufficient disclosures.

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SPAC Attack: The SEC Charges a SPAC for Failure to Launch

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.

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Cybersecurity Enforcement Trends: A Fraught New Reality for ‘Victims’ of Cyberattacks

Partners Peter Baldwin and Bob Mancuso published “Cybersecurity Enforcement Trends: A Fraught New Reality for ‘Victims’ of Cyberattacks.” This article in the New York Law Journal discusses how regulators have shifted their focus from data breach notifications to overall cybersecurity preparedness.

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