Posts from February 2015.

Addressing SIFMA's Anti-Money Laundering ("AML") conference Wednesday, SEC Enforcement Director Andrew Ceresney said that - when it comes to AML - the lack of red flags itself is a red flag. Bank Secrecy Act ("BSA") AML requirements under the Currency & Foreign Transactions Reporting Act of 1970, as amended, 31 U.S.C. §5311, et seq. (31 C.F.R. Chap. X and related laws / regulations: here) require financial institutions to file "suspicious activity reports" ("SARs") with the Financial Crimes Enforcement Network ("FinCEN") within the Department of Treasury. Examples ...

Posted in: SEC, SIFMA

Short fish, Long fish, Red fish, Gone fish.[1] Old fish, New fish,[2] Red fish, Few fish.[3] This one is tangible,[4] That one's an object[5] The evidence was tampered.[6] Say, wasn't investigation hampered?[7] "Records" and "files" With Latin canon wiles What does it say? No! Don't read it that way.[8] Verbs and nouns[9] Dissenters frown[10] Four plus one, The statute's done.[11] (with apologies to Theodor Geisel). Thomas K. Potter, III (tpotter@burr.com) is a partner in the Securities Litigation Practice Group at Burr & Forman, LLP. Managing Partner of the Nashville ...

Posted in: Supreme Court
In an address Friday at the 44th annual "SEC Speaks" conference, SEC Commissioner Michael Piwowar suggested that the Securities Exchange Commission might do well to apply its own rules to itself. He suggested the Commission might best build on its 2014 accomplishments by "apply[ing] the same objective that we have for the markets we regulate - that they fair, orderly, and efficient - to ourselves." Addressing "fairness," Piwowar suggested the agency must not engage in rulemaking by enforcement or exam findings and "must resist the temptation to include undertakings in ...
Posted in: SEC

In a brief filed last week, the SEC urged the D.C. Circuit to give Chevron deference to the Commission's unnecessary conclusion that Congress's 180-day enforcement deadline doesn't matter. The conclusion is consistent with case law, but the approach turns basic judicial tenets on their head in a sharp-elbowed approach to Commission authority. The Commission barred investment-adviser Montford from the industry, and also required disgorgement and civil penalties, over undisclosed solicitor kickbacks and conflicts of interest. See Advisers Act Rel. No. 3829 (May 2, 2014).

Posted in: Dodd-Frank, SEC

FINRA Dispute Resolution filed with the SEC a proposed change to Code of Arbitration Rules 12214 and 12601 (and industry Rules 13214 and 13601) to increase late cancellation fees from $100 to $600 per arbitrator and expand the notice period for late hearing cancellations from 3 to 10 days. See SR-FINRA 2015-003 (filed SEC Feb. 5, 2015). Thomas K. Potter, III (tpotter@burr.com) is a partner in the Securities Litigation Practice Group at Burr & Forman, LLP. Managing Partner of the Nashville office, Tom is licensed in Tennessee, Texas and Louisiana. He has over 28 years' experience ...

Posted in: FINRA
On February 3, the Department of Justice and 19 State Attorneys General announced their $1.375 Billion settlement of DOJ's FIRREA suit and related State AG actions against Standard & Poor's and its parent McGraw-Hill Companies over ratings practices in CDO and RMBS securities contributing to the 2007-2008 financial crisis. The companies entered a separate $125M settlement with Calpers, California's public retirement system. S&P will pay half the $1.375 Bn to DOJ (as a FIRREA "civil monetary penalty"), and the other half among the various State AG plaintiffs ($25M to Tennessee ...
Posted in: FIRREA, RMBS

The SEC and FINRA each issued February 3 cyber security "alerts" summarizing last year's sweep exams and pointing out the obvious. In two parts, the SEC's press-release covered the results of the Commission's 2013-2014 sweep exams and an investor bulletin. SEC Press Release 2015-20, here. The Commission's Office of Compliance Inspections and Examinations ("OCIE") conducted a "sweep exam" - or wide industry survey on the subject among broker-dealers and investment advisers- during 2013 and 2014. The good news is that a wide majority of them have have information security ...

Posted in: FINRA, SEC

On January 29, the Commission dismissed its insider-trading suit against Canadian analyst Jordan Peixoto in connection with his purchase of puts on the stock of Herbalife in advance of a negative hedge fund presentation on the company. The SEC instituted proceedings against Peixoto last September in its administrative forum - something it could not have done before Dodd-Frank against the non-registered Canadian-citizen research analyst. In the Matter of Jordan Peixoto, AP File No. 3-16184 (SEC Sept. 30, 2014)(OIP here) Dodd-Frank reforms expanded the availability of the ...

Posted in: SEC
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