David Smyth

David Smyth

Brooks Pierce

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Municipal Bond Actions May Be about to Get Ugly

Back in the 1970s, SEC Enforcement Director Stanley Sporkin had a problem. He had stumbled onto what looked like a vast number of illicit payments from public companies to people who shouldn’t have been receiving them,...more

9/6/2016 - MCDC Municipal Bonds SEC Voluntary Disclosure

Being a Returned Fugitive from Justice May Not Be the Worst Thing

But don’t flee justice! This is not legal advice to you, but I really don’t mean to recommend avoiding problems with federal prosecutors by going to other countries where it’s hard for those prosecutors to catch up with you....more

8/26/2016 - Indictments Money Laundering Securities Fraud Spoliation Wire Fraud

Turns Out the Second Circuit . . . Uh, Heh Heh . . . Tossed Gibson Dunn for a Very Good Reason

So yesterday I wrote about the seemingly wrongheaded decision by the U.S. Court of Appeals for the Second Circuit to strike Gibson Dunn’s appearance from Lynn Tilton’s case in that court. Its apparent issue was that Judge...more

8/4/2016 - Administrative Hearings Appeals Gibson Dunn Impartiality Judges Legal Ethics SEC

Second Circuit Tosses Gibson Dunn from Lynn Tilton’s Case for Some Reason or Another

You may know about Lynn Tilton’s fight with the SEC, which has accused (link is external) the Patriarch Partners chief of defrauding her investors. The SEC brought its case in administrative court (link is external), which...more

8/3/2016 - Administrative Hearings Advisory Opinions Ethics Impartiality Judges SEC

Ninth Circuit Says You’re Going to Jail for Visiting That Website without Permission

Zounds, right? But that is arguably what the U.S. Court of Appeals for the Ninth Circuit said about the Computer Fraud and Abuse Act in Facebook v. Power Ventures, Inc. on July 12th. Let’s get to it....more

7/28/2016 - Appeals Cease and Desist Computer Fraud and Abuse Act (CFAA) Facebook Revocation Terms of Use Unauthorized Access US v Nosal Web Scraping

Ninth Circuit Interprets “Without Authorization” under the Computer Fraud and Abuse Act

When we last left David Nosal, he had escaped liability under the Computer Fraud and Abuse Act after convincing some of his former colleagues at executive search firm Korn/Ferry to use their log-in credentials to download...more

7/28/2016 - Computer Fraud and Abuse Act (CFAA) Confidentiality Agreements Convictions Criminal Liability Former Employee Misappropriation Passwords Popular Trade Secrets Unauthorized Access US v Nosal

Taking a Walk Back to a Kinder, Gentler Interpretation of the Computer Fraud and Abuse Act

We don’t usually talk about four-year-old court decisions in the first instance here. But the Ninth Circuit has issued a pair of noteworthy opinions interpreting the Computer Fraud and Abuse Act in the last few weeks. And...more

7/26/2016 - Aiding and Abetting Computer Fraud and Abuse Act (CFAA) Confidential Information Criminal Liability En Banc Review Former Employee Popular Trade Secrets Unauthorized Access US v Nosal Young Lawyers

Fourth Circuit Says Embezzlement Is Not Theft under the Immigration and Nationality Act

Is embezzlement theft? Some people think it is. Even common sense suggests it. But the U.S. Court of Appeals for the Fourth Circuit can’t live in the world of common sense. It lives in a world of statutes that have words,...more

6/27/2016 - Aggravated Felony Board of Immigration Appeals Consent Embezzlement Immigration and Nationality Act Lawful Permanent Residents Prior Conviction Theft

Supreme Court Says Prosecutors Can’t Judge the Cases They Prosecute

Not all of the justices would put it that way. To be fair to the dissenters, and because his version is shorter, we’ll use Justice Thomas’s description of the underlying facts from his dissent in Williams v. Pennsylvania,...more

6/16/2016 - Brady Violation Convictions Criminal Prosecution Death Penalty Due Process Fourteenth Amendment Post Conviction Relief Act Recusal SCOTUS Williams v Pennsylvania

Don’t even think about violating that penny stock bar.

The penny stock world can be rough. So rough that breaking the rules in that corner of the securities markets ban bring its own kind of injunction, one that’s much more specific than the typical don’t-break-the-law-anymore...more

6/13/2016 - Enforcement Actions Neither Admit Nor Deny Settlements Penalties Penny Stocks Permanent Injunctions SEC Securities Exchange Act Suspensions & Debarments

Fourth Circuit Says Law Enforcement Doesn’t Need a Warrant to Figure out Where You Are

Like many people, Aaron Graham and Eric Jordan carried cell phones around in 2011. Unlike most people, Graham and Jordan were convicted of crimes arising from their participation in a series of armed robberies in that period,...more

6/6/2016 - Cell Phones Criminal Investigations Fourth Amendment Law Enforcement Location Data Reasonable Expectation of Privacy Search Warrant Stored Communications Act

The Insider Trading Cartoon Series, Vol. IX -- Tender Offers [Video]

I want to talk about Rule 14e-3, because it has significant implications for insider trading liability. But to do that, we first have to talk about tender offers, and what they are....more

5/31/2016

Phil Mickelson is very glad United States v. Newman is the law in the Second Circuit.

Phil Mickelson, whom the SEC describes as a “successful professional golfer,” was not charged with insider trading earlier today. I wasn’t either, and I’m glad about that. And you probably weren’t either! High fives all...more

5/20/2016 - Disgorgement DOJ Equitable Relief Insider Trading Material Nonpublic Information Personal Benefit Popular Prejudgment Interest SEC US v Newman

Custody rule examiners need to, you know, examine.

Here’s a thing I know: South Carolina doesn’t require vehicle inspections. Dumb, right? If your car is properly registered, you can drive it there all you want no matter how dangerous it is. Here’s a thing I think I know:...more

5/13/2016 - Administrative Proceedings Custody Rule Enforcement Actions Examiners Investment Adviser SEC

Stop Faxing

I’ve long thought that sending faxes was a pretty silly means of communication. Don’t send me a fax. I don’t want it. At some point I’m hoping that even my kids’ doctor’s office will get dragged into the 20th century and...more

5/11/2016 - Administrative Proceedings Broker-Dealer Cease and Desist Orders Data Protection Data Security Faxes Penalties Personally Identifiable Information Regulation S-P SEC Securities Exchange Act

The Insider Trading Cartoon Series, Vol. VIII — Negligence? [Video]

Can you resolve your insider trading case with a negligence-based charge? Probably not. If you're lucky enough to get there, it'll only be after a long, painful fight....more

5/11/2016 - Insider Trading Professional Negligence

First Circuit Opens New World of Potential Liability for Video Producers

You may be too young for this to have been a big thing to you, but almost 30 years ago, D.C. Circuit Judge Robert Bork was nominated to the Supreme Court, and Washington, D.C. went into a tizzy. Coming as it did just a year...more

5/4/2016 - Adobe Behavioral Advertising Cartoon Network Data Collection Geolocation Mobile Apps Personally Identifiable Information Putative Class Actions Reversal Subscribers Third-Party Service Provider Video Privacy Video Privacy Protection Act

Two Thoughts about the Smallest Insider Trading Case in All of Captivity

I shouldn’t write this post, because the SEC surely wants me to write at least part of it. I mean, they don’t care about what I write; I can promise you that. But they want somebody to cover it because of the message they...more

3/3/2016 - Administrative Proceedings Illegal Tipping Insider Trading Material Nonpublic Information Personal Benefit SEC US v Newman

Rob Cohen Discusses SEC’s Analysis and Detection Center

One other interesting thing coming out of last Friday’s enforcement discussion at SEC Speaks (there weren’t many): Market Abuse Unit co-chief Rob Cohen’s mention of the SEC’s Analysis and Detection Center. First, though,...more

2/25/2016 - CBOE Enforcement Actions FINRA Insider Trading Market Abuse SEC

The Insider Trading Cartoon Series, Vol. V — Misappropriation Theory [Video]

We’ve spent a few episodes talking about insider trading when the trader owes a fiduciary duty to the company whose securities are being traded. But what if the trader isn’t connected to the company? Enter the...more

2/24/2016 - Fiduciary Duty Insider Trading Misappropriation Securities

SEC Enforcement Lays out Approach to Cybersecurity Cases

If you’ve ever attended the annual SEC Speaks conference, you know that the official program is an intensely uninteresting collection of short speeches by SEC officials who don’t have a lot of incentives to say groundbreaking...more

2/23/2016 - Cyber Attacks Cybersecurity Disclosure Requirements Enforcement Material Nonpublic Information Popular SEC

Martin Shkreli, Criminal Forfeiture, and the Wu-Tang Clan

The S&P Schadenfreude Index hit an all-time high yesterday when Martin Shkreli was arrested and indicted for securities fraud related to a hedge fund he used to run. The SEC sued him, too. Here’s how the Justice Department...more

12/18/2015 - Forfeiture Indictments Martin Shkreli Popular Securities Fraud Wu Tang Clan

The Insider Trading Cartoon Series, Vol. IV — Rank-and-File Employees [Video]

Having covered corporate officers and temporary insiders, we now turn briefly to regular employees, still under the classical theory of insider trading liability....more

12/10/2015

The Insider Trading Cartoon Series, Vol. III — Very Temporary Insiders [Video]

In the last episode of the Insider Trading Cartoon Series, we discussed temporary insiders and their potential liability for insider trading. But what about those with more tenuous connections to the companies at issue? ...more

12/4/2015

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