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Expect Focus - Volume IlI, September 2024

Gone With the Wind? Closed-End Funds Risk Extinction - Shares of SEC-registered closed-end funds (CEFs) have long held significant potential advantages for some investors. For example, unlike shares of mutual funds...more

SEC Penalties for Off-Channel Communications: Still Blowing in the Wind

The SEC has increased its enforcement efforts against firms that are registered as broker-dealers and/or investment advisers for alleged violations of federal securities laws involving “off-channel communications.” Such...more

Fifth Circuit Flags False Start in Challenge to SEC Gag Rule

In January 2024, the SEC denied New Civil Liberties Alliance’s petition to halt so-called gag orders. The SEC has a procedural rule that requires it to impose these orders on individuals and companies settling with the SEC on...more

Juggling Act: SEC Fines Three Employers for Potentially Discouraging Whistleblowers

The SEC has continued its enforcement against employers — including privately held companies — that have provisions in their agreements or policies that could potentially discourage whistleblowing or communications with...more

Supreme Court Plays Its Cards on Constitutionality of SEC In-House Court Actions

The U.S. Supreme Court’s June 2023 decision to grant certiorari in SEC v. Jarkesy called into question the SEC’s ability to pursue penalties and other legal remedies before the SEC’s in-house administrative law judges. If...more

Catching More Flies With Honey: Recent DOJ Policy Changes to Coax Cooperation From Corporate Defendants

In March 2023, the Department of Justice announced two policy changes that attempt to incentivize self-disclosure to the federal government and self-imposed remedial measures by corporations charged with criminal wrongdoing....more

A Coming Seismic Shift in Administrative Law? Or Just a Tremor?

Article I of the U.S. Constitution articulates the fundamental principles that “[a]ll legislative Powers … shall be vested in a Congress,” “[t]he executive Power shall be vested in a President,” and “[t]he judicial Power …...more

What’s Up With WhatsApp and Text Messaging? SEC and FINRA Weigh In

The SEC requires broker-dealers to maintain originals of all communications received and copies of all communications sent by the broker-dealer relating to its business for three years. The SEC has explained that Rule 17a-4...more

SEC Cultivates Shadow Trading Theory: Emerging Species of 10b-5 Violation?

Due to the lack of a detailed governing statute or rule, insider trading law continues to evolve and grow as novel theories are presented to and interpreted by the federal courts. Recently, a new theory emerged: shadow...more

Gag Orders, Part II: When the SEC Silences Critics

This article supplements our article titled “Gag Orders: Stifling Effect on SEC Critics” in the September 2020 edition of this publication. Any consent judgment with the SEC includes what is often called a “gag clause.”...more

SEC Tolling Agreements Upheld: Second Circuit Lifts Tollgate

This article supplements our April 2021 Expect Focus article, “A Future Without SEC Tolling Agreements? Some Say ‘Not So Fast.’” In that article, we addressed a case of first impression, SEC v. Fowler, which was pending in...more

New Cybersecurity Enforcement Through DOJ’s Civil Cyber-Fraud Initiative and the False Claims Act

On October 6, 2021, the Department of Justice opened up a new front in cybersecurity compliance when it announced a Civil Cyber-Fraud Initiative using the False Claims Act and other civil enforcement tools against government...more

A Future Without SEC Tolling Agreements? Some Say “Not So Fast”

The SEC routinely requests individuals who may be the subjects or targets of investigations to execute agreements that delay or suspend the time period in a statute of limitations for an agreed period (commonly referred to as...more

Gag Orders: Stifling Effect on SEC Critics

Any consent judgment with the SEC includes what is often called a “gag clause.” These clauses prohibit the defendant from challenging the truth of any allegation in the SEC’s complaint or making any statement that might be...more

When Terminated Employees Steal: Cases of Purloined Company Documents

An employee is terminated, her laptop and phone seized. As she is escorted from the premises, Human Resources instructs her, in no uncertain terms, about company information: All internal company emails and other business...more

Cases of Purloined Company Documents: When Terminated Employees Steal

The employee is terminated, and her laptop and phone seized. On being escorted from the premises, human resources admonishes that all internal company email and other business documents belong to the company, not her, to...more

SEC and FINRA Compliance During COVID-19

The Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA) have issued guidance regarding how the coronavirus (COVID-19) has affected their operations. ...more

SEC Now May Consider a Simultaneous Settlement Offer and Waiver Request

Certain “bad actors” who settle with the SEC may be subject to automatic disqualifications or collateral consequences under federal securities laws and regulations. The Commission, however, may grant a settling party’s...more

Supreme Court Set to Rule on Constitutionality of SEC’s ALJs

In April, the U.S. Supreme Court heard oral argument in Lucia v. SEC to resolve the federal circuit court split on whether the SEC’s administrative law judges (ALJs) are "inferior officers" of the United States who must be...more

Expect Focus - Volume IV, December 2017

EXPECTFOCUS is a quarterly review of developments in the insurance and financial services industry, provided on a complimentary basis to clients and friends of Carlton Fields Jorden Burt, P.A. ...more

Delicate FINRA Balancing Act: To Self-Report or Not?

FINRA Rule 4530(a) requires member firms to promptly report certain enumerated events. Rule 4530(b) is less specific, with supplemental guidance advising that a firm should report when it concludes or reasonably should have...more

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