First, Here are Some Important Things Companies Must Understand Preservation Duties. A subpoena ordinarily makes litigation “reasonably foreseeable.” This triggers a company’s preservation duties. Negotiations are Common. Companies can (and often should) negotiate the…
On October 24, 2023, Gurbir Grewal, the SEC’s then-Director of Enforcement, addressed the New York City Bar Compliance Institute. During his remarks, he described enforcement actions against compliance officers as “exceedingly rare,” and commented…
Yes, SEC investigative testimony is ordinarily taken under oath and transcribed. What Are the Questions the SEC Will Ask Me? The substantive questions the SEC asks during testimony depend on the scope of the…
While negotiations typically focus on fines, disgorgement, and monitoring, SEC settlements frequently trigger regulatory disqualifications that apply by operation of law. Determining whether a settlement will trigger these collateral consequences, and how to avoid…
The SEC does not directly charge you or sentence you to any civil penalty. Instead, the SEC brings enforcement actions, which it formally terms civil enforcement proceedings, and, if it establishes liability in one…
Yes, the SEC may provide investigative evidence to the Department of Justice (DOJ), prosecutors, and other federal criminal authorities if it believes that criminal charges may be warranted. This includes: Information obtained through administrative…
Emails that are within the scope of an SEC subpoena are compelable documents, and that means that the SEC can potentially compel production of your emails by subpoenaing you. However, the SEC cannot simply…
While an SEC subpoena authorizes the agency to seek records, documents, and other evidence, it does not authorize the agency to enter a residence. However, the mere fact that documents are located in a…
The SEC’s jurisdiction generally encompasses either (i) a security or (ii) a transaction involving a security or securities-related activity. (SEC, Regulation of Internet-Based Fraud). Applying the Howey test to Bitcoin is not identical to…
Yes. SEC staff may start investigations using public records and other means. Public records, surveillance, examinations, and interviews with voluntary witnesses are some of the tools available to the SEC, and the SEC may…