Elon Musk’s August 7, 2018 Tweets, in which he had “secured” funding to take Tesla private at a substantial premium over the then-current share price, have already produced a storm of controversy and a series of securities class action lawsuits against him and the company. The Tesla CEO’s now-infamous Tweets have now also led to a SEC enforcement action against him, in which the agency alleges that Musk’s statements in the Tweets were “false and/or misleading” because “he did not have an adequate basis in fact for making these assertions.” The agency seeks injunctive relief, disgorgement, civil penalties, and a bar prohibiting Musk from serving as an officer or director of any public company. The SEC’s complaint against Musk can be found here. The SEC’s September 27, 2018 press release about the enforcement action can be found here.
Continue Reading SEC Files Securities Fraud Suit Against Elon Musk Over Take-Private Tweets
SEC Public Company Enforcement Action Continue Steep Decline in First Half FY 2018
The number of SEC enforcement actions against public companies and their subsidiaries declined in the first half of FY 2018 compared to the comparable year prior period, continuing a sharp downward trend that began in the second half of FY 2017 and falling to the lowest level in years, according to a new report from Cornerstone Research, written in collaboration with the NYU Pollack Center for Law & Business. Monetary settlements during the first half of fiscal 2018 also fell to their lowest level in years. The report, entitled “SEC Enforcement Activity: Public Companies and Subsidiaries, Midyear FY 2018 Update” (here), reports on SEC enforcement activity involving public companies and their subsidiaries for the first half of fiscal 2018, which ended March 31, 2018. Cornerstone Report’s May 15, 2018 press release about the report can be found here.
Continue Reading SEC Public Company Enforcement Action Continue Steep Decline in First Half FY 2018
Guest Post: SEC Enforcement Still Strong Under Trump – What’s Next?
In the following guest post, Britt K. Latham and Brian Irving of the Bass, Berry & Sims PLC law firm take a look at the SEC’s enforcement action track record under the Trump administration and take a look ahead at what may be next for the agency. I would like to thank Britt and Brian for their willingness to allow me to publish their article as a guest post. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Britt and Brian’s article.
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SEC Fiscal Year Enforcement Statistics Reflect an Agency in Transition
On November 15, 2017, when the SEC Enforcement Division released its annual report detailing its enforcement activity during the preceding fiscal year, the report included a statement by the division’s co-directors detailing the division’s priorities for the coming year. As detailed below, the enforcement statistics in the report clearly reflect an agency in transition. The changes under the new administration are particularly apparent with regard to the agency’s enforcement activities involving publicly traded companies. The Enforcement Division’s annual report can be found here. The division’s November 15, 2017 press release about the report can be found here.
Continue Reading SEC Fiscal Year Enforcement Statistics Reflect an Agency in Transition
Despite Record SEC Enforcement Activity, Senator Warren Calls for President to Fire Agency Chair
Perhaps SEC officials hoped they were bolstering their agency’s image as a tough regulator when they reported on October 11, 2016 that the SEC had filed a record number of enforcement actions in fiscal year 2016. That was certainly the way the officials quoted in the agency’s press release played it. But if that was their plan, Senator Elizabeth Warren, at least, was having none of it. Just days after the agency released its enforcement statistics, Senator Warren sent a 12-page letter to President Barack Obama calling for the President to fire Mary Jo White as SEC Chair, because, the Senator contends, under White’s watch the agency has undermined the administration’s priorities, ignored the SEC’s core mission of investor protection, and failed to promulgate or implement disclosure requirements Warren supports.
Continue Reading Despite Record SEC Enforcement Activity, Senator Warren Calls for President to Fire Agency Chair
Six Things to Know Now About the SEC Whistleblower Program
One of the signature features of the Dodd-Frank Act was its creation of an SEC Whistleblower program. Under the program, the SEC can award whistleblowers a bounty of between ten percent and thirty percent of any recoveries the SEC makes in excess of $1 million as result of the information whistleblower provided. The program went into effect in 2011, and the agency immediately began receiving a huge volume of whistleblower reports. Over time the agency has made a number of awards, including the September 2014 award of $30 million, which is still the largest award under the whistleblower program.
While the program has been in operation now for several years, it recently kicked into high gear and the program has passed a number of important milestones. The trend lines suggest that the SEC whistleblower program is going to be an increasingly important part of the corporate liability landscape, and for that reason there are a number of important things to keep in mind.
Continue Reading Six Things to Know Now About the SEC Whistleblower Program
SEC Whistleblower Reports Continue to Increase
The number of whistleblower reports to the SEC’s Office of the Whistleblower under the Dodd-Frank Act’s whistleblower provisions continues to increase, according to the agency’s latest annual report. The November 16, 2015 report, which is entitled “The 2015 Annual Report to Congress: Dodd-Frank Whistleblower Program,” and which can be found here, reports that the number of whistleblower reports to the agency has increased every year since the program was instituted in 2011. The agency has also made over $54 million in whistleblower awards since the program’s inception, including more than $37 million to eight whistleblowers in fiscal year 2015 alone.
Continue Reading SEC Whistleblower Reports Continue to Increase
New SEC Enforcement Action Database from NYU and Cornerstone Research
On October 27, 2015, Cornerstone Research in conjunction with the New York University Pollock Center for Law & Business and the Leonard N. Stern School of Business to launch the Securities Enforcement Database (SEED). As described in the organizations’ joint October 27, 2015 press release (here), the database will track record and information relating to SEC enforcement actions filed against public companies. The SEED database, which can be found here, will facilitate the analysis of and reporting of SEC enforcement actions through regular updates of new filings and settlement information relating to ongoing enforcement action.
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SEC Files Record Number of Independent Enforcement Actions in Fiscal 2015
According to the agency’s recently released enforcement activity statics, the SEC’s overall enforcement activity and the number of independent enforcement actions both increased in the fiscal year 2015 (which just ended on September 30) compared to prior years. More specifically, during fiscal 2015, the agency filed a record number of independent actions for violations of the federal securities laws. The agency’s enforcement statistics reflect a significant increase in the number of financial reporting and audit cases. The agency’s October 22, 2015 press release presenting its 2015 fiscal year enforcement statistics can be found here.
Continue Reading SEC Files Record Number of Independent Enforcement Actions in Fiscal 2015
Is the Dodd-Frank Whistleblower Bounty Program Gaining Momentum?
While the SEC’s Dodd-Frank whistleblower program has drawn significant attention, the fact is that the program has gotten off to a slow start. As of the end of the last fiscal year, the SEC had during the program’s history received a total of 10,193 whistleblower reports, but had made only 14 whistleblower awards. (Indeed, the agency had rejected more award requests – 19 – than awards given.) While the agency’s deliberate pace in making awards seems unchanged, the agency continues to make substantial awards and the aggregate value of the awards is gradually becoming quite considerable.
On July 17, 2015, the SEC announced yet another significant award, a $3 million award to a company insider whose information “helped the SEC crack a complex fraud.” Consistently with the law’s requirements, the agency did not disclose the name of the whistleblower or the company involved. The SEC’s July 17, 2015 press release can be found here. The redacted July 17, 2015 SEC Order determining the whistleblower award can be found here.
Continue Reading Is the Dodd-Frank Whistleblower Bounty Program Gaining Momentum?