SEF Central 2024: SEC Practice - Developments in Administrative Proceedings, Trials, Testimony, Wells Process, Settlements & More
A transcript of the SEC Practice panel from the Securities Enforcement Forum Central 2024 conference follows. The panelists were:
Danette Edwards, Partner, Katten
Benjamin Hanauer, Supervisory Trial Counsel, SEC
David Peavler, Partner, Jones Day
Steven Scholes, Partner, McDermott Will & Emery
You can view the video on Docket Media’s YouTube channel here, and the conference agenda is here.
00:00 - 00:58
Bruce Carton: So our first panel today is a great way to get started. We have our SEC practice panel. And let me start by introducing our moderator, David Peavler. He is a partner at Jones Day in Dallas and served for over 17 years at the SEC, most recently as regional Director of the SEC's Fort Worth Office and Associate Director for Enforcement. Welcome, David. Very pleased to introduce Danette Edwards. She's a partner at Katten in Washington, D.C. And former Senior Counsel in the Division of Enforcement. And she joined Katten two years ago after over a decade at the SEC. From the SEC, very pleased to welcome Ben Hanauer, Supervisory Trial Counsel in the Chicago Regional Office, and he served at the SEC for over 16 years. Welcome, Ben. And finally, let me introduce Steve Scholes, a partner at McDermott, Will & Emory in Chicago and Steve also is a former counsel in the SEC's Division of Enforcement. David.
00:58 - 01:08
David Peavler: Great. Thank you very much Bruce and good morning everyone. Thank you for joining us here at this bright and early hour. Before we get fully started, I'll let Ben give his customary disclaimer.
01:09 - 01:24
Ben Hanauer: Thanks David, and most of you know I have to do this by now, but I am joining you in my official capacity as an SEC Supervisory Trial Counsel. My statements do not necessarily reflect the views of the commission, any of its commissioners, or the staff.
01:25 - 01:56
David Peavler: Thanks. Well, we are kind of the potpourri of panels in that we have a little bit of everything to cover and we get the luxury of being first so we don't have to worry that somebody has already stolen our thunder. And if you come after us, I apologize, we did try to avoid it, but there are some overlaps. We are a person down. Matt Kutcher was unable to join us. I see a couple in the back with their Matt Kutcher t-shirts on. I apologize, you'll just have to deal with the rest of us. But we'll get . . .
01:56 - 02:44
David Peavler: started here. We've got a lot to cover. The SEC has given us some nice nuggets over the last couple weeks to talk about, and including a really interesting cooperation case that we'll touch base on. But we thought we'd start this morning with SEC enforcement after Jarkesy, or Jark-ee-zee, or however precisely it's pronounced, and has it really changed anything? I think everyone here is familiar with the facts and the Supreme Court decision, so we're not gonna belabor that, but Steve, I think we'll kick off with you and others feel free to chime in. How much do we think Jarkesy is really gonna change how the SEC approaches enforcement?
02:45 - 03:27
Steve Scholes: Yeah, I think that opinion is going to be transformational personally to the SEC's enforcement program. It was, as a matter of fact, I would contend that it was having a substantial impact even before the opinion was issued because it was so widely anticipated. And I think there are a couple of different respects in which it's going to have near-term impact when that case is viewed in connection with the Cochran decision by the SEC, which essentially allows for what I'll loosely refer to as collateral attacks on SEC administrative proceedings in federal district court. I'll explain what I mean by that in just a minute. But to understand, I think, the true impact of . . .
03:27 - 04:20
Steve Scholes: Jarkesy, I think you have to start with the Fifth Circuit opinion, which held really on three independent grounds that the SEC's administrative proceedings structure and process is unconstitutional. And those three holdings are really, the first is that a jury trial right under the Seventh Amendment attaches to claims that are legal in nature when they are brought by the SEC in an administrative proceeding. The second is really independent of the Seventh Amendment issue and is a constitutional argument that the entire proceeding is unconstitutional because it violates what is referred to as constitutional lawyers called the non-delegation doctrine. . . .
04:21 - 05:00
Steve Scholes: And that is to say that the legislature cannot delegate a legislative power to an agency without providing an intelligible principle upon which to exercise the delegation. So what does that mean, kind of in plain English? What it means is that Congress delegated to the SEC the decision as to whether to bring cases in Article III courts or administratively in an administrative proceeding process, but Congress did not provide in making that delegation any guidance to the agency in terms of how to exercise that discretion. And so the Fifth Circuit held that in and of itself is a . . .
05:00 - 05:42
Steve Scholes: constitutional infirmity. And again, that infirmity is not tethered to any Seventh Amendment issue with respect to whether or not the asserted claim is legal in nature or whether it might be something else. And then the third basis is roughly similar to the second in some respects, and it is a constitutional infirmity that the Fifth Circuit found by virtue of the fact that the president cannot take care under the take care clause of the Constitution to see that the laws, the securities laws, are faithfully executed because ALJs have for-cause employment protection and the commissioners have a certain . . .
05:42 - 06:28
Steve Scholes: amount of for-cause employment protection. So if the president believes that the ALJs are not faithfully executing the laws, the president is hapless to be able to take any sort of employment action to address that issue. So that's an independent and a third constitutional infirmity. That was the Fifth Circuit holding. It went to the Supreme Court. The Supreme Court affirmed on the Seventh Amendment jury trial ground without addressing the non-delegation doctrine or the take care clause issue. So what that means is today there are actually at least three potential criticisms, attacks, assaults on an administrative proceeding that . . .
06:28 - 07:05
Steve Scholes: might be filed by the Commission. One, if you have an argument that the nature of the claim is legal, you can argue that there's a Seventh Amendment right to a jury trial, which would preclude, if that position were upheld, would preclude the process from going forward because there is no jury mechanism under the SEC's rules of practice. And then the second and third grounds attack the proceeding altogether, again, irrespective of whether the claim is legal in nature. 1 other quick note, and then I promise I'll let others jump in here, sorry about this, but the concurring . . .
07:05 - 07:58
Steve Scholes: opinion by Justice, authored by Justice Gorsuch and joined by Justice Thomas also provided two other aspects in which he believed the proceeding was constitutionally infirm in addition to the Seventh Amendment jury trial right. He also found that there is an Article III right to be under the Constitution for a respondent to have an independent Article III judge sit and adjudicate the proceeding, as opposed to an ALJ. And he also held that there is an independent right under the Fifth Amendment to due process, which was an explicit criticism of the SEC's rules of practice, which those of . . .
07:58 - 08:56
Steve Scholes: us who have tried SEC administrative proceedings often bemoan how, plug your ears for just a minute, Ben, the SEC staff can take three years to investigate a case and you can have as little as a month or two or three or six to get access to the information and get your case prepared for trial. So, Justice Gorsuch in the Concurring Opinion provided two additional bases to criticize an AP. Both of those bases, however, are also dependent upon the claim being legal in nature. So if the claim's legal in nature, you've got an argument that there's a right to a jury trial, that there's a right to have the case tried pursuant to the federal rules of civil procedure, federal rules of evidence, and there's a right to have that heard by an, to have the case heard by an independent Article III judge. So it's a very complicated opinion, a complicated state of affairs, and we probably can't do it justice even in 45 minutes, but maybe that's a helpful overview, I hope.
08:56 - 09:34
David Peavler: No, it definitely is, and I think, to give the SEC a chance to respond here. You know, challenges to the constitutionality of administrative proceedings are nothing particularly new. They've been going on for at least the last decade or so. And I think we've seen the SEC adapt, as reflected in the fact that, you know, contested APs have been very rare over the last five or six years and yet the SEC still has record-breaking enforcement numbers that they report every year. So Ben, how do you think the SEC is going to respond or adapt to Jarkesy?
09:35 - 10:21
Ben Hanauer: Well, thanks David. I agree with Steve that Jarkesy could be transformational for administrative law as a whole and how other agencies go about their enforcement programs. But I think the impact on the SEC's enforcement program is gonna be a little less stated. And here's why. For the past seven or so years, the SEC has not even been bringing any of the types of cases that were at issue in Jarkesy. We weren't seeking, bringing fraud claims against entities regulated or not. It was just a very narrow class of cases against auditors and even less cases for supervision . . .
10:21 - 11:03
Ben Hanauer: in the broker space. So there just weren't that many cases out there and what else has been happening instead. We've been bringing nearly all our cases in district court. That's not impacted by Jarkesy, that's gonna continue. Time's gonna tell how Jarkesy shakes out. Remember, the holding is actually pretty narrow. It's found that it was unconstitutional when SEC brought a fraud claim that seeks a penalty. Well, we haven't brought a case like that in a long time. I think the impact on other agencies that may not have a district court option, that's gonna be a lot more . . .
11:03 - 11:45
Ben Hanauer: pronounced, and this is all just a big windup for given the relatively narrowness of the Jarkisi holding and its impact government-wide, I think there's gonna be a lot of room for the case law to develop on it. But just remember this for my friends in the defense bar, be very careful what you ask for because the SEC has shown that even if we're not pursuing our auditor cases in the 102(e) context, those cases against gatekeepers are not going away. There's the Prager Metis cases, one in Florida, one in Southern District of New York are very instructive. . . .
11:46 - 12:26
Ben Hanauer: The one in Florida District Court case, we charged auditor independence violations in District Court and the auditor just resolved that case. And then only in the past week or so, we brought negligence-based fraud charges against the auditor. So again, in district court in the Southern District of New York, and that case I believe was resolved as we settle it. So for folks out there representing auditors and other gatekeepers, ask yourself, which forum do you really wanna be in? The district court cases are often much more public, and actually while the APs used to be a faster . . .
12:26 - 12:42
Ben Hanauer: route, maybe 15 years ago, they tended to get held up at the commission review stage, district court cases are a lot faster. So if you're representing an auditor, just be prepared that those cases might now be in district court.
12:43 - 13:02
David Peavler: Thanks, Ben. And so just to kind of pick up that theme of the 102(e)’s and the kinds of cases that can only, at least right now, be brought administratively, what do we think the developments will be on that front? And what have you seen?
13:02 - 13:39
Danette Edwards: Sure. Thanks, David. The open questions as to remedies such as 102(e)’s, which as you say can only be brought administratively, are really interesting. I think the answers will come in litigation eventually. But, you know, and we're seeing the first of those challenges just in the past few weeks. There's a case called Lemelson versus SEC. It's a challenge to a follow on administrative proceeding. That case was filed in trial court in Washington, D.C. It challenges the AP forum as being unconstitutional because the bar in that case, a 102(e) bar, a follow-on bar, is allegedly . . .
13:40 - 14:23
Danette Edwards: a form of punitive relief, not equitable. And so, you know, we'll eventually have answers to questions like this. In the meantime, I think interestingly, the SEC moved to voluntarily dismiss many APs just last month. They were brought against accountants. They were 102(e) proceedings. And just actually to level set, I think most of us know, but 102(e), it's a bar basically against professionals, usually accountants from appearing and practicing before the SEC. But the SEC voluntarily moved to dismiss several of those cases, seven or eight, they were brought under 102(e), also 4C of the Exchange Act, which allows . . .
14:23 - 15:07
Danette Edwards: for censures and bars, as well as 21C of the Exchange Act, which provides for a cease- and-desist order. Most but not all of those cases included a request for civil money penalties, so I think there you can't dispute the impact of Jarkesy on the SEC's thinking. The dismissal motions in those matters were really bare bones, so the SEC doesn't explain the reasons behind its dismissals. But if the SEC is going to take that approach by voluntarily insulating itself, not bringing these cases, dismissing them, and insulating itself from the prospect of further bad judicial precedent, that's . . .
15:07 - 15:42
Danette Edwards: one thing, but who's gonna fill that gap? And is it gonna be SROs? And I think that's a possibility. We could see SRO enforcement being more robust and trying to fill that gap. The SROs just got a good decision a couple weeks ago in a case in federal court in Pennsylvania. That case is called Blankenship versus FINRA. It doesn't answer the ultimate question, but it's a good win for the SROs in the meantime, because what it did was say, look, Mr. Blankenship had challenged the constitutionality a la Jarkesy of FINRA's administrative proceedings. And the court said . . .
15:42 - 16:06
Danette Edwards: we do not have subject matter jurisdiction to hear this case. It's not the right time. You know, if Mr. Blankenship litigates and isn't satisfied with the results or goes through this process and isn't satisfied even not only after FINRA, but SEC review, then that might be the time to challenge it on direct appeal, but this collateral attack will not stand. So doesn't answer things ultimately, but a good win for SROs in the meantime.
16:06 – 17:14
Steve Scholes: Can I just make a point of emphasis? So it may well be unprecedented that the SEC dismiss this batch of 102 proceedings within, what, 30 days-ish after the opinion came down. And as Danette correctly said, some of those cases did not seek any form of penalty at all. They only sought C&Ds and BARs. So it is pretty clear, and by the way, the commission has not issued any guidance, hasn't made any statement at all as to why it took the action it took or what its sense of its enforcement program is going to be in view of Jarkesy and in view of the fact that it dismissed the 102(e)’s. So there's this giant question mark that all of us have about what the enforcement program is gonna look like going forward in view of Jarkesy. So that's one of the transformational impacts that I was alluding to at the top. I completely agree with Ben. I think this has been anticipated . . .
17:15 - 17:59
Steve Scholes: for some time and the SEC has made what I would contend are very appropriate and prudent adjustments to its enforcement program in view of what was apparently coming, but this is huge that the commission voluntarily, without any explanation whatsoever, dismissed those 102(e)’s and at least, I think it's fair to say, that some of the defense bar is buzzing a little bit about how strong some of those cases appeared to be, at least based on the publicly available information, and the Commission just completely walked away from those even those that didn't seek a civil money penalty. So there is hopefully this time next year we'll have more information on that and can fill in some of these gaps but that that is just an absolutely huge development.
18:00 - 18:40
David Peavler: Well, the question becomes whether that's the end of the story, you know, or is there going to be a, for the better of those cases, do they bring a civil action along the sort that Ben mentioned? Let's shift gears when we're talking about district courts. Let's talk about the SEC's willingness to litigate cases in district court. And Ben, let you kick this off. And it's a question maybe a little amorphous, but from your perspective, has the SEC's risk tolerance and litigation evolved over time? In other words, is the agency more willing now to take cases to trial that it might not win?
18:40 - 19:20
Ben Hanauer: Thanks, David. I think the answer to your question is no, and that's because the SEC has always had a risk tolerance to take cases to trial even though we might lose. From my very unbiased opinion, the SEC's trials in this space are the hardest ones to win. The cases we take to trial are cases that for whatever reason probably didn't have a criminal interest. There were cases we couldn't win on offensive summary judgment, or there were cases we couldn't extract a settlement for on the front end, and we don't have wiretaps or FBI agents like you . . .
19:20 - 20:03
Ben Hanauer: get in the criminal cases. So our cases have always been tough, and we've continued to bring them. One particular area, insider trading cases. Our win rate historically is about 90%. It is lower for insider trading cases, but that hasn't stopped us from bringing those cases. This past year, the SEC has tried five jury trials to verdict. We got wins on all of them including a win on Friday in a boiler room case and think about the type of trials that the SEC succeeded on this year. There was the Panuwat insider trading trial which received a lot . . .
20:03 – 21:08
Ben Hanauer: of attention from the defense bar trying to challenge even the viability of our legal theory in that case. There's the Terraform crypto trial, and everyone here knows how contested the crypto case has been. So those are just examples that should let folks know that the SEC is gonna proceed to trial on cases that we bring, and usually will do a pretty strong job. Now that being said, the SEC does manage risk just like any other sophisticated litigant does. So, you know, if at the end of discovery and through summary judgment the evidence hasn't turned out the way we may have thought it was, or if there were some pretrial rulings from the court that we think could have a major impact on our ability to try the case, or any number of other considerations that folks in the audience see every day in their litigations. Of course, the SEC does take that into account if considering whether to settle a case in the public interest.
21:09 - 21:25
David Peavler: Let's flip that coin over now and Danette, have you seen any shifts in terms of your clients willingness to litigate against the SEC and are you advising them or prompting them that maybe this is a good time to go to trial?
21:27 - 21:40
Danette Edwards: I think the appetite for litigating is stronger these days. While the SEC has had some significant wins in litigation this year, they also suffered some significant losses. And I do think that's emboldening some of my clients.
21:42 - 22:21
David Peavler: Steve, earlier this year, well I guess it was now last year the SEC brought the SolarWinds case against the company and its chief information security officer. It was a very high profile case, touched a lot of nerves in the compliance and gatekeeper industry, but just recently the district court dismissed much of the SEC's complaint. They kept, the court did keep some pretty critical charges in fairness to the SEC, but the court dismissed a lot of the charges that had caused consternation. What are the key takeaways from that decision that you're sharing with clients?
22:21 - 22:58
Steve Scholes: So yeah, thanks David. So in cases like solar winds there are, this is going to be too simple, but I think it'll be illustrative, there are essentially two buckets of charges. There are the fraud charges, the 10b-5 and potentially 17(a) and in an adviser's case, the 206 charges. And then there are what are loosely referred to as the books and records and controls kind of charges. And typically in a piece of litigation like this, the real issue that you're trying to manage are the fraud charges. Those are the ones that are most consequential, that are the . . .
22:58 - 23:41
Steve Scholes: most serious, that have the most collateral implications, both from a regulatory perspective and from a commercial perspective in terms of impact on the business. In SolarWinds, there were those exact two buckets of charges generally alleged. So there were some pretty serious fraud charges that were alleged and certain of those were upheld, upheld in the sense that they survived a motion to dismiss. Some of those were dismissed, but there are some pretty serious allegations of misstatements and omissions that are alleged that survived the motion to dismiss, and that case will certainly be proceeding on that basis. In . . .
23:41 - 24:27
Steve Scholes: terms of what you alluded to, David, what's really been interesting, I think, to the compliance community is the charge by the SEC under its 13(b)(2)(B) of the Exchange Act, sorry about that, that requires internal, a system of internal accounting controls And that's the phrase that's used in the statute, accounting controls. And there was an allegation that, by the SEC, their theory was that because of problems on the IT side of the business, if you will, with respect to VPN protocols, even things as simple as passwords, how complicated were the passwords, how often did they have to . . .
24:27 - 25:23
Steve Scholes: be changed, those kinds of technological deficiencies in the business, which I think it's ironic by virtue of the nature of SolarWinds business, but they had these kind of fundamental technology problems and issues that the SEC contended under 13(b)(2)(B) were violative of the requirement to keep an adequate set of internal accounting controls for financial reporting purposes. And one of the provisions under 13(b)(2)(B) requires there to be a control that safeguards, essentially safeguards access, safeguards access to assets. And the notion was that due to these technological failures or deficiencies that SolarWinds had that those violated that provision of . . .
25:23 - 26:00
Steve Scholes: 13(b)(2)(B) because of password authentication issues, folks could infiltrate the system and you could have cyber events. The court went through a very long and detailed analysis that frankly you don't, at least I don't think you typically, I don't think it's common to see in these kinds of books and records controls charges, you don't see so much of a litigation focus on those. The focus is really on the nature of the fraud-based claims, but the court really went through a fairly detailed analysis and held, it's very interesting, that cyber-related controls are not accounting controls that are alluded . . .
26:01 - 26:44
Steve Scholes: to, not alluded to, that are the subject of 13(b)(2)(B). And so you can have all of the technical accounting, cyber-related controls, control problems that you want, but that doesn't mean that they fit within the rubric of 13(b)(2)(B) because they're not related to accounting and financial reporting. The court actually said at 1 point in time, if a problem with passwords violates the accounting controls, there's no limit on this. Then the next thing you know, you're gonna be looking at whether the padlocks on the warehouses in the back are locked up every night. So there was clearly an . . .
26:44 - 27:05
Steve Scholes: attempt by the judge, an effort by the judge to constrain the reach of the 13(b)(2)(B) related issues and to limit those to matters which are accounting and financial reporting, you know, in nature. It's a, if you're in the compliance space, it's certainly worth a read. It's an interesting opinion and a very, very thoughtful job by the judge.
27:05 - 27:24
David Peavler: Well, I think that last point is, it echoes some of the criticism that Commissioners Peirce and Uyeda had made of some of those cases in the one size fits all approach of using some of the internal controls rules to bring broader claims.
27:24 - 27:40
Steve Scholes: And they're typically kind of an afterthought.
David Peavler: Historically they always were.
Steve Scholes: Now what can we staple on in terms of books and records and internal controls. Frankly, they haven't gotten a lot of attention, I don't think, by the defense bar or the SEC, not necessarily historically in a litigation context.
27:40 - 28:20
David Peavler: Right. A recent development that has popped up, certainly in my part of the country is proactive suits against the SEC seeking declaratory judgments and injunctions against enforcement actions that are filed in venues that the plaintiffs perceive as unfavorable to the SEC, i.e. the Fifth Circuit. Danette, we don't know, I say we don't know, we now know probably a little bit more than we did a few days ago how these cases are going to turn out, but maybe share a little bit of where these things have been and what the developments you've seen.
28:22 - 29:01
Danette Edwards: Sure. As you say, these suits are on the rise. I think declaratory judgment actions are on the rise in all parts of the bar, not just SEC enforcement land. You know, lots of them in the insurance litigation context, patent context, it's not surprising that they have led into securities enforcement world. And not surprising further, the ones I'm aware of are all in the crypto asset industry. People asking for clarity, basically, by filing these suits on questions of whether a token really constitutes a security or whether the network it is using is going to violate the use . . .
29:01 - 29:39
Danette Edwards: of the law, or violate the law. So these cases are attractive to people who are seeking clarity. If they win, they maybe avoid a suit down the line. It takes them out of defensive posture, and it gets their message out. So even if they lose on a motion to dismiss, they've accomplished something. And I don't think we'll see people deterred from filing these. There was a case that was recently dismissed. It was Hold On for Dear Life, H-O-D-L versus SEC. That was dismissed recently and the dismissal was affirmed by the Ninth Circuit, I believe, for lack . . .
29:39 - 30:11
Danette Edwards: of subject matter jurisdiction. But again, jurisdiction questions, subject matter jurisdiction questions are very fact specific, so I don't think that's gonna deter filers. There are a number of other cases. The most recent one that I'm aware of is Mann vs. SEC that was filed by two artists. It involves NFTs and questions as to whether those are securities or not. One of the artists is a songwriter and he is known for putting out a song a day and one of his songs is, “This Song Is Not a Security”, so I really think we missed here. We should have used that as our walk-up music for this panel.
30:15 - 30:16
Ben Hanauer: You could use that as your walk-up.
30:19 - 30:32
Danette Edwards: True. So we have Mann versus SEC, Consensus Software versus Gensler, Legilex versus SEC, and Crypto Freedom Alliance of Texas. So I think this is kind of the tip of the iceberg. Probably not the last ones we'll see.
30:32 - 31:09
Steve Scholes: So Dave, I would go, if you don't mind me jumping in. I would go as far as to say, if you're an SEC defense lawyer and you're facing a potential action, I would examine, well, let me put it this way, we are examining in every one of those we have whether there is a viable route to, under Cochran, the decision I referred to very earlier, which allows district courts to entertain these actions, I would analyze, review, and consider whether or not some form of injunctive action or declaratory judgment action in a federal district court to deal . . .
31:09 - 31:48
Steve Scholes: with a 102(e) proceeding, a causing, something that's being brought administratively. Because this is, it's a sort of a target-rich environment in a manner of speaking. There are real strategic and litigation strategic advantages to be gained by virtue of those kinds of analyses and those routes, which historically were, I've been at this a long time. This just amazes me that this is even going on in this day and age, that this is possible. But they're all over the place, and I would suggest when you're facing something this with a client, you should at least consider the . . .
31:48 - 32:24
Steve Scholes: possibility. You may not decide to pursue it, but we had one of those very recently in a proposed follow-on proceeding, which historically have followed night follows day. There's a criminal conviction, there's an injunction entered, so you get a follow-on proceeding with a bar, and I thought that's the route we were heading down, and we were actually putting a complaint together and were ready to go, and the staff pulled the case and they gave us a termination letter. So it's kind of hard to figure out exactly what's going on inside the agency right now with the 102(e) . . .
32:25 - 32:51
Steve Scholes: situation, the issue with respect to follow-ons, other claims like causing claims, but it is an uncertain environment and that I would suggest again Ben plug your ears but it there may be well may well be instances where leaning a little leaning in a little harder in some of those cases that try to take strategic advantage of the uncertainty may well pay dividends.
32:52 - 33:28
David Peavler: Well, and I also think, Danette's point of, it gets your message out. It lets you be proactive and get a message out. And even if you get dismissed, your client has had a chance to say, this is unjust for all these various reasons. So yeah, I do think it is a, at least until some higher court says, you gotta stop this, I think we will continue to see it. Let's shift gears now to talk about a pretty hot topic, which is cooperation credit and self-reporting. It's been 23 years since the SEC issued the Seaboard Report. Since
33:28 - 34:26
David Peavler: then, the SEC has not issued any further official policies outlining precisely what good cooperation looks like or what the benefits are. And in contrast DOJ has issued several public policy statements and memos outlining both of those with a considerable amount of specificity. Earlier this year, Gurbir Grewal laid out the five principles of effective cooperation in SEC investigations and then just yesterday we had a very pointed, settled case that laid out what the SEC's view of perfect, maybe, I don't know if that's the right word, high level of cooperation looks like and what it gets us. But, Danette, How much do these cases or how much have these various cases added to what we already knew and maybe give us a little bit of a flavor from yesterday's case? What you've been able to glean from that?
34:26 - 35:08
Danette Edwards: Sure. I think the cases are really instructive, particularly yesterday's case. Yesterday's case was Atom Investors and it's one of the record-keeping cases. There was no penalty that was awarded and it looks like there was no penalty because there was a self-report. The company had received an SEC subpoena, realized that in the process of trying to respond to that subpoena, they had lost some documents, they were outside the company's official record-keeping platforms, self-reported to the SEC, and remediated promptly. So this case, and especially the decision not to award a penalty, really does stand as a great example . . .
35:08 - 35:40
Danette Edwards: of the message that the SEC has been saying that, especially in record keeping cases, self-reporting is the most important factor to gaining cooperation credit. So they put their money where their mouth is. This is, I don't know if that saying works, but I think you get the point here. It's instructive and a big deal. There are a lot of cases in 2023, and we've talked about those at length, I think at last year's conference, like Stanley Black & Decker and other cases, so I won't sort of belabor it, but those cases are instructive because the SEC goes through . . .
35:40 - 36:13
Danette Edwards: and lays out the factors that it has considered in awarding either no penalty or a reduction in penalty. They also say that they will reduce charges potentially in some cases, appropriate cases. There's another case from 2024. It was I think, Cloopen Holding. That's a company that used to trade on the New York Stock Exchange. Now it's, you know, on the over-the-counter markets, but the cooperation was extraordinary. It got no penalty. That's a 2024 case. And it did all the things that the SEC keeps saying is going to move the needle on cooperation credit. So, you know, . . .
36:13 - 36:49
Danette Edwards: they identified hot documents for the staff. They provided foreign language translations. They self-reported. They remediated promptly and did not receive a penalty at the end of the day. So we have two big no penalty cases. I mentioned the fact earlier about Cloopen trading over the counter markets, because I think it brings up the question of financial distress and I don't think you're never going to see that in an official policy statement, but everybody is sensitive to the fact that financial distress might have on that penalty award. Nobody wants to penalize a company who's in financial straits.
36:50 - 37:34
Danette Edwards: I think that's important. Now, there was another big announcement. Gurbir at the Securities Docket’s West Coast Conference in May announced five factors that will influence cooperation. And 5 is a change supposedly over Seaboard. I think it's maybe a matter of semantics. But to level set the five factors are self-policing, self-reporting, remediation, cooperation with law enforcement, and collaboration. Collaboration is supposedly the new one relative to Seaboard. But I think the value there is just allow, and just he did elaborate on collaboration. And he said, and I'm paraphrasing here, but collaboration is the through line, apparently, in . . .
37:34 - 38:02
Danette Edwards: cases where they will give cooperation credit. It means communicating with the staff early, often, and substantively. I think the thing that did, I don't know that it really illuminated Seaboard anymore for us because is collaboration really a component of cooperating with law enforcement? Probably, but what it allowed the SEC to do was just have another way to emphasize its cooperation message.
38:04 - 38:18
David Peavler: Ben, from the staff perspective, when do you start assessing cooperation? What are the most critical elements of good cooperation as you see it? And what are the surefire ways to lose cooperation credit?
38:18 - 39:03
Ben Hanauer: Yeah, thanks, David. So when does the SEC start assessing cooperation? Per Gurbir's speech in May, before there's even a case, is there a culture of compliance? Does the company self-police? What's the tone at the top? So before we even hear about anything, we are assessing it. For me, what is critical, the most critical elements of cooperation? Is the company getting the SEC information that we wouldn't have otherwise discovered? Or is the SEC getting us information much quicker than it would otherwise take to discover in the normal course? Danette went through the five factors that Gurbir laid . . .
39:03 - 39:45
Ben Hanauer: out in May. I think you're probably right, self-reporting is a very critical one and one that the Commission always hangs its hat on when announcing cooperation. Meaningful assistance during the investigation, and that means not just responding to a subpoena or document request or having a witness being compelled to show up. I think the example of providing hot docs or key documents without being asked, that is a very, very helpful step. And then self-remediation, fixing the problem without being told to, those are things that the SEC also has highlighted in many of its press releases and other . . .
39:45 - 40:27
Ben Hanauer: announcements about cases where there was significant cooperation credit. How to lose it? I think it goes to a general principle for all government defense lawyers. If you lose your credibility, right? And in the cooperation space, that means saying you're gonna cooperate, saying you're gonna do something, but then not doing it. And an example that comes to mind for me is in a major multi-jurisdiction investigation, lots of players, the investigation been going on for a very long time. In the first meeting with our office, defense counsel comes in and says, we want to cooperate, we're going to . . .
40:27 - 40:51
Ben Hanauer: bend over backwards, we want to help you out. Okay, that's great. Well, can you get us the hot documents? Clearly they've been there because other agencies have been investigating for many years. Well, in the response, well, I'm sorry, that would divulge my work product, so I can't do that. So if you're going to, if you want to lose cooperation credit, the easiest way to do it is say you're going to cooperate and then don't live up to what you say.
40:52 - 41:07
David Peavler: Well, we're kind of running down on time, so I thought we'd kind of jump to our lightning round question. And Steve, if you can identify, look in your crystal ball, what is it you think we'll be talking about a year from now?
41:07 - 41:48
Steve Scholes: I think it's, sorry to be redundant here, but I really think it's gonna be the impact of these judicial opinions on the SEC's enforcement program and how the SEC reacts to those. And frankly, whether there is any kind of congressional fix to some of this, there is always a possibility that Congress could step in and provide some sort of statutory relief or guidance or pass some kind of bill that would clarify some of these issues. Personally, I think it's sorely needed. It's just this, everything is ambiguous. I don't think, frankly, the SEC knows exactly how to . . .
41:48 - 42:57
Steve Scholes: deal with all of this. It's too dynamic, it's too fluid, things are changing. We're out, completely out of the range of historical norms in terms of what the enforcement program has, the policies and practices that it has pursued. And so the next 12 months, I'm confident, will shed a lot of light on that. And there is still a lot of room for judicial clarity, too, in the forms of decisions in some of these federal district court actions that are assaulting, if you will, criticizing, seeking injunctions of, you know, sort of parallel administrative proceedings. And that's gonna play into 102(e)’s, the FINRA case that Danette referred to. There are PCAOB issues here, you know, as well. So there are a lot of arms and legs on this and issues that have to be decided. And I think the question is whether it's just decided over time by means of the SEC reacting to the landscape or whether there's some more immediate sort of congressional fix. Did that, same question?
42:58 - 43:38
Danette Edwards: Sure, I'm gonna say something similar. I think administrative law questions are going to be big next year. You know, there are cases on the Supreme Court's 2024 docket in the administrative law space, so it's going to be another hot or cruel summer for the Swifties out there, depending on your perspective, and I think we'll be talking about that come fall next year. Also challenges to other agency and SRO administrative proceedings to the extent that those entities arguably bring cases with claims that resemble common law claims. And then I guess the impact of the presidential election on enforcement stats sort of government-wide next year.
43:39 - 43:44
David Peavler: Ben, bring us home. What are you seeing as you sit from your perch at the SEC?
43:45 - 44:22
Ben Hanauer: Well, we're gonna have a whole panel on it later today, but obviously crypto has been a hot button issue. As Danette mentioned, there could be a very real impact depending on how the election shakes out or legislative actions, but beyond that, There are just a lot of cases, very heavily litigated cases out there in various procedural stages that it's going to be interesting to see how they develop. These are like the crypto exchange cases like Coinbase or Kraken or Binance. We already have a crypto Section 5 case that's working its way up to appeal in the . . .
44:22 - 45:15
Ben Hanauer: Fifth Circuit called Balina. So this is all just a big wind up. There are gonna be some judicial developments, if not other developments in the crypto space, and it'll be interesting to see how those shake out. And then just one last issue that we haven't talked about, but it is an important issue from my seat, and that's disgorgement in SEC cases. A couple years ago, the Second Circuit decided a case called Govil, which seemed to impose a pecuniary harm requirement to get disgorgement. There have been various courts around the country that do not agree with that approach. So I think you'll be interested to see further development in that space and if these dueling approaches somehow get reconciled and if they do what the outcome is.
45:15 - 45:17
David Peavler: Great, well thank you all very much.