SEC Speaks, Cuban Tweets

The leaders of the Securities and Exchange Commission addressed the public on February 21-22 at the annual SEC Speaks conference in Washington, D.C.  The presentations covered an array of topics, but common themes included the Commission’s ongoing effort to carry out the rulemaking agenda set forth in the Dodd-Frank Wall Street Reform and Consumer Protection Act, its role as an enforcement body post-financial crisis, its increasing utilization of technology, and its renewed focus on the conduct of gatekeepers.  In a surprise appearance, Dallas Mavericks owner and former insider trading defendant Mark Cuban attended the first day of the conference.  During his time at the conference, Mr. Cuban shared his thoughts on a number of the presentations via his Twitter account.

From a litigation and enforcement perspective, key takeaways from the conference include the following: Read More

The SEC Scores Another Admission: Scottrade Acknowledges That It Broke Recordkeeping Rules

Last week, Scottrade Inc. became the latest entity to admit wrongdoing in connection with settling SEC charges.  In a January 29, 2014 administrative order, the brokerage firm not only agreed  to a $2.5 million penalty, but also admitted that it violated federal securities laws when it failed to provide the SEC with complete and accurate “ blue sheet” trading data.  This settlement marks the fourth such admission since the Commission’s June 2013 modification to its “no admit/no deny” settlement policy.

Most civil law enforcement agencies – including the SEC –  generally do not require entities or individuals to admit or deny wrongdoing in order to reach a settlement.  The SEC regularly utilizes this “no admit/no deny” policy, finding it an effective tool to facilitate settlements.  In June 2013, however, the Commission announced a revision to this longstanding policy, indicating that it would require public admissions of wrongdoing in selected cases, including those involving “egregious” fraud or intentional misconduct, as well as those involving significant investor impact or that are otherwise highly visible.  Since then, the Commission has obtained admissions in three previous settlements. Read More

Moving Right Along: The Office of Whistleblower Issues Its 2013 Annual Report

The SEC released its Fiscal Year 2013 Annual Report   (the “Report”) to Congress on the Dodd-Frank Whistleblower Program on  November 15, 2013.  The Report analyzes the tips received over the last twelve months by the SEC’s Office of the Whistleblower (“OWB”) and provides additional information about the whistleblower award evaluation process.

Breakdown of Tips Received in FY 2013

The OWB reported a modest increase in the number of whistleblower tips and complaints that it received in 2013 – 3,238 tips in 2013 compared to 3,001 in 2012.  Overall, the 2013 whistleblower tips were similar in number, type, and geographic source to the whistleblower tips reported in 2012.  As in 2012, the most common types of allegations in 2013 were: Corporate Disclosure and Financials (17.2%), Offering Fraud (17.1%), and Manipulation (16.2%).  Most whistleblowers, however, selected “Other” when asked to describe their allegations.  In 2012, the most common complaint categories reported were also Corporate Disclosure and Financials (18.2%), Offering Fraud (15.5%), and Manipulation (15.2%).  See Appendix B to the Report, listing tips by allegation type and comparing tips received in 2013 to those received in 2012. Read More

The Cop is on the Beat: SEC Chair White Says the Agency Aims to be “Everywhere”

In a recent speech to the Securities Enforcement Forum, SEC Chair Mary Jo White fleshed out the Commission’s plan to pursue all violations of federal securities laws, “not just the biggest frauds.”  She also addressed the looming question of whether this approach makes the best use of the agency’s limited resources.

Chair White compared the SEC’s strategy of pursuing all forms of wrongdoing, no matter how big or small, to the “broken window” theory of policing, which was largely credited for reducing crime in New York City under Mayor Rudy Giuliani.  According to the “broken window” theory, a broken window which remains unfixed is a “signal that no one cares, and so breaking more windows costs nothing.”  On the other hand, a broken window which is fixed indicates that “disorder will not be tolerated.”  Chair White postulated that the same theory applies to the US securities markets:  minor violations that go ignored may lead to larger violations, and may foster a culture where securities laws are treated as “toothless guidelines.”  Characterizing the SEC as the investors’ “cop,” she declared that the SEC needs to be a “strong cop on the beat,” understanding that even the smallest securities violations have victims. Read More

Take Heart, Companies Can Win Whistleblower Cases: Two Key Victories Last Week in SOX and Dodd-Frank Cases

Two victories for employers last week in Dodd-Frank and SOX whistleblower cases may provide a basis for at least a sliver of optimism among employers and whistleblower defense lawyers hammered by a recent series of employee-favorable decisions under the two main federal statutes covering whistleblowing activity.

Banko v. Apple

In Banko v. Apple Inc., Case No. 3:13-cv-02977-RS, a Northern District of California judge dismissed a Dodd-Frank retaliation claim where the employee only made a complaint internally to management and never complained to the Securities and Exchange Commission (SEC). The court followed the reasoning of the Fifth Circuit in Asadi v. G.E. Energy (USA), L.L.C. (see Orrick’s prior blog post on Asadi) and rejected a broader interpretation of the Act adopted by four district courts and the SEC that Dodd-Frank covers internal reporting protected by the Sarbanes-Oxley Act (SOX) as well as reports to the SEC. Read More

SEC Issues Huge Bounty Award of $14 Million to Whistleblower under Dodd-Frank

Today the SEC announced that it is issuing a whistleblower award of over $14 million to a whistleblower who provided information that resulted in the recovery of investor funds. The significant whistleblower award comes after many critics have questioned the success of the SEC’s whistleblower award program which, to date, has only issued two much smaller awards since the program’s inception in 2011. The first award payment was issued in August 2012 for approximately $50,000. The second award, paid to three whistleblowers for information that stopped a sham hedge fund, has paid out approximately $25,000 with an expected total payout of $125,000. Read More

Don’t Get Caught In The Crosshairs When The SEC Deploys Its Full Enforcement Arsenal

On September 26, SEC Chair Mary Jo White gave an important speech to the Council of Institutional Investors in Chicago.  The speech, entitled “Deploying the Full Enforcement Arsenal,” provides the first detailed roadmap to the Commission’s enforcement priorities in the White administration.  While some of the SEC’s enforcement program going forward will involve a continuation and reinforcement of efforts begun during the administration of former Chair Mary Schapiro and former Enforcement Director Robert Khuzami, much of it will entail new initiatives.  The bottom line is that — not surprisingly — Chair White, a former U.S. Attorney, is committed to a vigorous, prosecutorial-minded enforcement program.

Here are the key takeaways from the speech:
Individuals First.  Perhaps most importantly, Chair White stated that the “core principle of any strong enforcement program is to pursue responsible individuals wherever possible.”  Accordingly, she has “made it clear that the staff should look hard to see whether a case against individuals can be brought.  I want to be sure we are looking first at the individual conduct and working out to the entity, rather than starting with the entity as a whole and working in.”  She also indicated that the Commission is likely to seek more industry and officer-and-director bars against individuals.  Chair White described this focus on individuals first as a “subtle” shift in approach, but it is one that, if followed in practice, will have significant consequences, particularly when paired with some of the other initiatives described below. Read More

Tell One, Tell All, The Risks of Selective Disclosure

On September 6, 2013, the SEC charged the former head of investor relations at First Solar Inc., an Arizona-based solar company, with violating Regulation FD, which is designed to prevent issuers from selectively disclosing material nonpublic information to certain market participants before disclosing the information to the general public.  In this matter, the SEC determined that Lawrence D. Polizzotto violated Regulation FD when he indicated in “one-on-one” phone conversations with about 20 sell-side analysts and institutional investors that the company was unlikely to receive a much anticipated loan guarantee from the U.S. Department of Energy.  When First Solar disclosed the same information the following morning in a press release, the company’s stock dropped 6 percent.  In addition to a cease-and-desist order, Polizzotto agreed to pay $50,000 to settle the SEC’s charges.   The SEC determined not to bring an enforcement action against First Solar, due in part to the company’s “extraordinary cooperation” with the investigation.

The Polizzotto action is noteworthy for several reasons.  First, is the contrast between that action and the only Regulation FD case to go to litigation.  In June 2004, the SEC filed a civil action against Siebel Systems, Inc. for violating Regulation FD and an earlier SEC cease-and-desist order, and against two of the company’s senior executives for allegedly aiding and abetting Siebel’s violations.  The alleged violations were very similar to those alleged against Polizzotto:  in both cases, the SEC alleged that the company, through its executives, violated Regulation FD by selectively disclosing material nonpublic information to analysts and favored investors in one-on-one meetings before disclosing it publicly.  There were, however, several differences in the facts of the two matters.  In the Siebel matter, the U.S. District Court for the Southern District of New York held that the nonpublic statements made at the one-on-one meetings were not material because they did not add to, contradict, or significantly alter the information that the company had previously made available to the general public.  Although not literally the same as the public statements, the court found that the private statements generally conveyed the same material information.  On the other hand, the SEC deemed that Polizzotto’s statements provided new information about the status of the loan guarantees for one of company’s major projects, even though a letter from a Congressional committee to the Energy Department about the loan guarantee program and the status of conditional commitments, including three involving First Solar, had already caused concern within the solar industry about whether the Energy Department would be able to move forward with its conditional commitments.  The final blow to Polizzotto may have been First Solar’s recognition of the significance of private statements to analysts and particular investors about the loss of the loan guarantee.  For example, a company lawyer had specifically advised that, in discussing this development, the company would “be restricted by Regulation FD in any [sic] answering questions asked by analysts, investors, etc. until such time that we do issue a press release or post to our website….”  Thus, despite the fact that the court in the Siebel Systems action did not consider an 8 percent stock price movement following public disclosure to be material, the SEC here considered the 6 percent stock price movement to be material. Read More

Where There’s Thunder, There’s Lightning: SEC’s Investigation of IBM’s Cloud Computing Accounting May Be a Harbinger of a New Enforcement Focus

Cloud computing may be the next shoe to drop. On the heels of Mary Jo White’s recent appointment as Chairman of the SEC and predictions that it may refocus enforcement on accounting fraud came word last week that the Commission is investigating IBM’s cloud-computing accounting. In an SEC filing, IBM defended its revenue accounting for cloud-based services, stating “[w]e are confident that the information we have provided has been consistently accurate.”

This may just be the tip of the iceberg for an industry estimated by some analysts to generate global revenues of $131 billion this year, 60% of which originate in the United States.

Cloud computing has no single definition but one basic expression would be the practice of storing and accessing information on servers accessed through the Internet. There are many cloud-computing business models, including Infrastructure as a Service (“IaaS”), in which customers access computing power, such as servers, through physical equipment owned by the provider; Platform as a Service (“PaaS”), in which customers use a provider’s computing environment—including operating systems, programming languages, and databases—to create applications remotely; and Software as a Service (“SaaS”), services that allows users to operate software remotely. Google Documents and the e-Discovery platform Relativity are just two cloud-based services that readers may be familiar with. Read More

Here’s Looking At You, Money Market Funds

While money market funds did not exist when Humphrey Bogart spoke his famous line in Casablanca, since the 2008 financial crisis, reforming money market funds have been the subject of high drama and intense scrutiny on Capitol Hill. Advocates for reform finally got their long awaited breakthrough last Wednesday, June 5, 2013, when the Securities and Exchange Commission voted unanimously to propose legislation that would reform money market funds. The SEC’s goal with the reform is to make money market funds less susceptible to “runs” that could harm investors.

The SEC’s goal of reform has been in the works for a long time, was championed by former Chair of the SEC, Mary Schapiro, and has been continued by current Chair Mary Jo White. A money market fund is a type of fixed-income mutual fund that invests in debt securities with short maturities and minimal credit risk. They first developed in the early 1970s as an option for investors to purchase a pool of securities that generally provided higher returns than interest-bearing bank accounts. Money market funds have grown considerably since then and currently hold more than $2.9 trillion in assets.

Money market funds seek stability and security with the goal of never losing money and keeping their net asset value (“NAV”) at $1.00. However, many felt reform was necessary after a money market fund “broke the buck” at the height of the financial crisis in September 2008 and re-priced its shares below its $1.00 stable share price to $0.97. Investors panicked and within a few days, investors had pulled approximately $300 billion from similar money market funds. Intervention from the United States Treasury Department prevented further runs on the funds. Read More