Judge Engelmayer’s 107-page dismissal of most of the U.S. Securities and Exchange Commission (SEC)’s claims against SolarWinds provides valuable guidance, and some comfort, for public companies and Chief Information Security...more
8/19/2024
/ Chief Information Security Officer (CISO) ,
Corporate Counsel ,
Cyber Attacks ,
Cybersecurity ,
Disclosure Requirements ,
Fraud ,
Internal Controls ,
Misrepresentation ,
Negligence ,
Ransomware ,
Scienter ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
SolarWinds
On June 26, 2024, the U.S. Supreme Court held 6-3 in Snyder v. United States that a federal statute, 18 U.S.C. § 666(a)(1)(B), does not criminalize “gratuities” to state and local officials—i.e., payments made to those...more
On April 12, 2024, the U.S. Securities and Exchange Commission imposed fines and other sanctions on five registered investment advisers (RIAs) for violations of the Investment Adviser Marketing Rule (Rule 206(4)-1), which has...more
On Friday, April 5, 2024, a San Francisco jury found the defendant liable in SEC v. Panuwat, the closely watched litigated enforcement action brought by the U.S. Securities and Exchange Commission (SEC) relating to so-called...more
On April 3, 2024, the U.S. Securities and Exchange Commission (SEC) announced its first enforcement action against a registered investment adviser (RIA) with no ties to a broker-dealer regarding so-called “off-channel”...more
4/10/2024
/ Broker-Dealer ,
Electronic Communications ,
Enforcement Actions ,
Fund Managers ,
Investigations ,
Investment Adviser ,
Investment Management ,
Recordkeeping Requirements ,
Registered Investment Advisors ,
Securities and Exchange Commission (SEC) ,
Securities Regulation ,
Securities Violations
Key Points - In a thorough decision, a federal district judge in New York largely denied Coinbase’s motion for judgment on the pleadings in a case brought by the SEC. Applying the plaintiff-friendly standards required at the...more
Last month, the United Kingdom Financial Conduct Authority (FCA) announced that it is considering new procedures under which it would publicly identify firms that are under investigation as soon as the investigation has been...more
4/1/2024
/ Cross-Border ,
Department of Justice (DOJ) ,
Disclosure Requirements ,
Enforcement ,
Financial Conduct Authority (FCA) ,
FSMA ,
Investigations ,
Notice Requirements ,
Securities and Exchange Commission (SEC) ,
UK ,
Willful Misconduct
On February 20, 2024, the U.S. Supreme Court declined to hear an appeal brought by the trustee of the Millennium Lender Claim Trust challenging the U.S. Court of Appeals for the 2nd Circuit’s August 2023 decision, in which...more
Key Points - On February 13, 2024, FinCEN issued an NPRM that seeks to include certain investment advisers in the definition of “financial institution” under the BSA. As described in the NPRM as well as in FinCEN’s fact...more
2/16/2024
/ AML/CFT ,
Anti-Money Laundering ,
Bank Secrecy Act ,
Chief Compliance Officers ,
Due Diligence ,
Exempt Reporting Advisers (ERAs) ,
Financial Institutions ,
FinCEN ,
Investment Adviser ,
Investors ,
Notice of Proposed Rulemaking (NOPR) ,
Policies and Procedures ,
Proposed Rules ,
Recordkeeping Requirements ,
Risk Assessment ,
Suspicious Activity Reports (SARs)
Key Points - Last week, the SEC announced settlements with 16 broker-dealers, dually registered broker-dealers and investment advisers, and affiliated investment advisers in connection with their failures to maintain and...more
Key Points - In SEC v. Terraform, the court has granted summary judgment for the SEC on its claim that the defendants offered and sold unregistered securities in the form of “crypto assets.” This comes amidst the SEC...more
1/15/2024
/ Bitcoin ,
Cryptoassets ,
Cryptocurrency ,
Department of Justice (DOJ) ,
Howey ,
Ripple ,
Securities Act of 1933 ,
Securities and Exchange Commission (SEC) ,
Securities Tokens ,
Security-Based Swaps ,
Stablecoins ,
Summary Judgment
While it took a few decades to surface, the fact pattern set forth in the movie “Trading Places” has finally come to pass. However, instead of the alleged wrongdoers bribing a U.S. government official for a sneak peek at...more
Key Takeaways -
With the SolarWinds enforcement action, the SEC continues to ratchet up its enforcement against companies that fail to properly disclose their cybersecurity incidents and risks. By naming the SolarWinds CISO...more
11/22/2023
/ Chief Information Security Officer (CISO) ,
Cyber Attacks ,
Cyber Incident Reporting ,
Cybersecurity ,
Disclosure Requirements ,
Enforcement Actions ,
Fraud ,
Incident Response Plans ,
Popular ,
Risk Assessment ,
Securities and Exchange Commission (SEC) ,
SolarWinds
On October 24, 2023, the Director of the Securities and Exchange Commission’s Enforcement Division, Gurbir S. Grewal, gave a keynote address to the New York City Bar Association’s 2023 Compliance Institute.
This address,...more
Key Points -
Last week, the SEC announced settlements with 10 broker-dealers and affiliated investment advisers in connection with their failures to maintain and preserve electronic “off-channel” communications....more
On September 27, 2023, the Securities and Exchange Commission (SEC) issued a press release announcing charges against officers, directors and large investors in public companies for failure to timely make Section 16, Schedule...more
Overview -
A survey conducted by the United Kingdom Financial Conduct Authority (FCA) in early 2022, but published only in 2023, has revealed the stark reality that the regulator is not doing enough for whistleblowers. 15...more
Key Point -
Just over two weeks after the SEC announced the settlement of its first NFT enforcement action against Impact Theory, on September 13, 2023, the SEC announced its second NFT enforcement action against SC2, the...more
Investment Advisers: Assessing Risks, Scoping Examinations, and Requesting Documents*
I. Introduction -
The SEC-registered investment adviser (“adviser”) population is large and diverse, ranging from global asset managers...more
9/12/2023
/ Audits ,
Brokerage Accounts ,
Business Operations ,
Compliance ,
Cybersecurity ,
Disclosure Requirements ,
Ethics ,
Financial Records ,
Insider Trading ,
Internal Controls ,
Investment Adviser ,
Marketing ,
Policies and Procedures ,
Risk Alert ,
Risk Management ,
Securities ,
Securities and Exchange Commission (SEC) ,
Trading Platforms ,
Valuation
Key Points -
On August 24, 2023, a three-judge panel of the 2nd Circuit unanimously held that the syndicated term loans at issue were not “securities” under the test articulated by the Supreme Court in Reves v. Ernst &...more
Key Points -
On August 28, 2023, the SEC charged Impact Theory, LLC, a media company with an unregistered securities offering through its sale of NFTs. This marks the first time that the SEC has brought an enforcement action...more
8/30/2023
/ Corporate Counsel ,
Enforcement ,
Ethereum ,
Investment Contract ,
Investors ,
Non-Fungible Tokens (NFTs) ,
Nonprofits ,
Securities and Exchange Commission (SEC) ,
Securities Litigation ,
Settlement ,
Unregistered Securities
No financial services firm or professional welcomes an investigation by a regulator, let alone enforcement action. Each investigation proceeds differently depending on the target of the investigation, the subject matter and...more
Key Point -
Just shy of three weeks after Judge Torres held that the digital asset XRP is not itself a security,1 Judge Rakoff held that the SEC had adequately pled that certain digital assets, such as the UST and LUNA...more
Key Points -
A judge in the Southern District of New York recently held that (i) the crypto asset XRP is not, on its own, a security and, (ii) as a result, the determination of whether an offer or sale of XRP required SEC...more
On June 8, 2023, the SEC Division of Examinations staff (EXAMS) published a risk alert focused on the new Marketing Rule (Rule 206(4)-1 under the Investment Advisers Act of 1940). While this new risk alert largely mirrors...more