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SEC 2020: Expect SEC Enforcement to Cast Wide Net on Corporate Disclosure

This is the second installment in our series of year-end analyses of the year in securities regulation and enforcement.

Based on our ongoing analysis of SEC enforcement actions in 2019, we expect the SEC’s Division of Enforcement to continue its expansive view of company disclosure issues that warrant enforcement scrutiny. In 2019, the SEC was aggressive against alleged accounting fraud by public companies and their executives, including actions alleging accounting schemes to meet earnings expectations and actions alleging sham transactions with third parties. Consistent with this focus on accounting misstatements, the SEC also brought stand-alone actions for internal control deficiencies. In addition, the Commission brought actions against outside auditors for recurrent audit failures and violation of auditor independence rules.

Expanding beyond this traditional focus, the SEC investigated companies for alleged misstatements or omissions involving non-accounting issues, such as data privacy breaches and cyber-related violations, as well as other non-technology negative developments affecting a company’s core operations. The SEC also brought actions against companies that were already sanctioned by other non-securities regulators. Finally, the SEC expanded its enforcement reach to foreign companies with securities that are primarily listed overseas, as long as the Enforcement Staff could find a US jurisdictional hook to sue such companies and their executives⁠—a trend we have seen continue into recent weeks.

Author

Amy serves as the Co-chair of Baker McKenzie’s North American Financial Regulation and Enforcement Practice, which provides our clients with a full range of regulatory advice and enforcement counseling. Previously, Amy has served as chief litigation counsel at the US Securities and Exchange Commission's (SEC) Philadelphia regional office and managed a team of lawyers overseeing a wide variety of enforcement matters and investigations.

Author

Jennifer L. Klass serves as the Co-chair of Baker McKenzie's Financial Regulation and Enforcement Practice in North America. Jen is an experienced investment management lawyer with particular focus on investment adviser regulation and the convergence of investment advisory and brokerage services. She regularly represents clients before the US Securities and Exchange Commission (SEC), both in seeking interpretative guidance and in managing examination and enforcement matters. Jen is a leading practitioner in digital investment advice and the use of FinTech in the asset management industry. Jen provides practical advice that is informed by her experience as Vice President and Associate Counsel at Goldman, Sachs & Co., where she represented the asset management and private wealth management businesses.

Author

Jerome Tomas is Chair of the Firm's SEC and Financial Institutions Enforcement Group and has been recognized by Chambers for White Collar Crime & Government Investigations. He represents multinational companies faced with government investigations and conducts internal investigations to assess and remediate legal and compliance concerns in domestic and global operations. With his experience as a former member of the SEC Division of Enforcement’s Cyberforce, the agency’s internet and cyber fraud unit, Jerome regularly advises companies involved in data security breaches and incident response. Jerome now leads teams of lawyers to address government law enforcement perspectives and where necessary, meet and refute government legal theories of corporate and individual liability head-on, while also being pragmatic and business-oriented for management and boards to compete internationally.

Author

Peter K.M. Chan is a member of Baker McKenzie’s North American Financial Regulation and Enforcement Practice, which provides our clients with a full range of regulatory advice and enforcement counseling. Peter brings two decades of experience at the US Securities and Exchange Commission (SEC) to his litigation and counseling work. His tenure at the SEC, as well as a stint as Special Assistant US Attorney in the Northern District of Illinois, have given Peter experience with civil and criminal matters. At the SEC, Peter served as assistant regional director in the Chicago regional office, where he led investigations and litigations of high-profile enforcement cases. In the course of his SEC career, he handled corporate issuer disclosure and reporting violations, financial fraud, auditor independence violations, insider trading, broker-dealer misconduct and failure to supervise cases, hedge fund and investment company fraud, and Dodd-Frank and Sarbanes-Oxley violations. As the head of the Municipal Securities and Public Pensions Unit at the SEC's Chicago office, he oversaw cases involving municipalities and public pensions throughout the Midwest, including disclosure failures by states, cities, and underwriters in municipal bond offerings; pay-to-play and public corruption; and securities fraud victimizing municipalities and public pensions. Peter also served in national leadership roles within the SEC's Enforcement Division. Peter acted as national leader of the Municipalities Continuing Disclosure Cooperation (MCDC) Initiative. He also served as co-chair of the Priorities and Resources Subcommittee of the Division of Enforcement Advisory Committee and was one of the original architects of the SEC Financial Reporting and Audit Task Force. Peter's experience in criminal securities fraud cases includes serving as Special Assistant US Attorney in the Northern District of Illinois in a criminal investigation into market abuse by a Chicago broker-dealer, resulting in guilty pleas by several senior executives at the firm. In 2014, Peter received the SEC's prestigious Paul R. Carey Award for his [e]xceptional personal commitment and effectiveness as a member of the Division of Enforcement.

Author

Jennifer Connors is a partner in Baker McKenzie's Financial Regulation and Enforcement Practice Group. She represents broker-dealers, investment advisers, alternative trading systems (ATSs), private fund managers, financial technology (FinTech) companies and other market participants on securities law and market regulation matters.

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Rebecca Leon is a partner in Baker McKenzie's Financial Regulation and Enforcement Practice Group. She counsels broker-dealer and other financial services clients on a wide range of state and federal securities law issues, as well as on compliance with the rules of the Financial Industry Regulatory Authority (FINRA). She assists clients with a panoply of intercompany, customer and industry agreements and works closely to guide financial services firms on structuring and developing their global operations.

Author

A. Valerie Mirko is a partner in Baker McKenzie’s Financial Regulation and Enforcement Practice Group in North America. Valerie has substantial experience in federal and state securities laws and regulations affecting the financial services industry, with a focus on the investment adviser and brokerage industries. Valerie has a background in both regulatory advice and enforcement counseling. Immediately prior to joining the Firm, Valerie was General Counsel of the North American Securities Administrators Association (NASAA). As General Counsel, Valerie advised NASAA’s Board of Directors on developments in the federal securities laws and their impact on state securities regulations. Valerie provided advice on, among other areas, the SEC Regulation Best Interest rule set, fiduciary duty/standards of care, preemption, retail enforcement issues, investment adviser oversight, and data privacy. She also supervised all of NASAA's securities-related legal work and was a resource on multistate enforcement investigations and settlements. Valerie also provided governance support on key NASAA Regtech projects and regulatory coordination initiatives between state and federal regulators. Valerie was a frequent speaker at regulator-only roundtables and training events. Earlier in her career, Valerie advised broker-dealers and investment advisers on regulatory matters and enforcement investigations as an associate at a Washington law firm and held legal and compliance roles at Oppenheimer & Co., Inc., and Merrill Lynch (now BofA Securities). Valerie is currently a member of the adjunct faculty at the George Washington University Law School and a subcommittee chair within the DC Bar Corporation, Finance, and Securities Law Community.