David Smyth

David Smyth

Brooks Pierce

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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

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

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

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

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

SEC Says No More Mr. Nice Guy on Investment Adviser Cybersecurity

Over the last couple years, the SEC’s cybersecurity bark has been worse than its bite. Its Office of Compliance, Inspections, and Examinations issued examination priorities in 2014. Commissioner Aguilar warned public...more

9/23/2015 - Broker-Dealer Brokers Cybersecurity Industry Examinations Investment Adviser OCIE Regulation S-P SEC Security and Privacy Controls

Nothing to See in This Story about the Electronic Communications Privacy Act

Check out this story. In it, we learn this: "Andrew Ceresney, director of the Division of Enforcement at the Securities and Exchange Commission, [told] the Senate’s Committee on the Judiciary at a hearing on Wednesday...more

9/21/2015 - Administrative Authority ECPA Electronic Communications Email Enforcement Google Government Investigations Law Enforcement Proposed Amendments SEC Yahoo!

Second Circuit Expands Scope of Dodd-Frank Anti-Retaliation Provisions, Sets up Chance for Supreme Court Review

Once upon a time, Daniel Berman was the finance director of Neo@Ogilvy LLC, a subsidiary of the publicly-traded WPP Group USA, Inc. He did not find a handsome prince or princess there. According to the allegations of a...more

9/14/2015 - Accounting Fraud Adverse Employment Action Dodd-Frank GAAP Hiring & Firing Internal Reporting Retaliation Sarbanes-Oxley SEC Whistleblower Protection Policies Whistleblowers

Executive Assistant Embezzles $1 Million from Hewlett Packard; as yet, SEC Doesn’t Care

Surely you remember the SEC’s case against Polycom from this spring. In it, the SEC alleged that Polycom CEO Andrew Miller had “created hundreds of false expense reports with bogus business descriptions for his personal use...more

9/8/2015 - Criminal Prosecution DOJ Embezzlement Fraud Hewlett-Packard Internal Controls SEC

SEC Comments on Whistleblower Anti-Retaliation Provisions/Internal Reporting

In the wake of Dodd-Frank’s passage in July 2010, many companies and corporate organizations lobbied the SEC on its upcoming whistleblower rules. One of their specific goals was to require whistleblowers, to be eligible for...more

8/24/2015 - Anti-Retaliation Provisions Dodd-Frank Employer Liability Issues Internal Reporting Publicly-Traded Companies Rule 21F SEC Whistleblower Awards Whistleblower Protection Policies

The SEC's Investment Management Division Has Some Things to Tell You about Cybersecurity

Lots of agencies and organizations want to boss you around about cybersecurity. In April, the SEC and the Justice Department published more directions on the issue. We’ll cover the very brief guidance issued by the SEC’s...more

7/27/2015 - Best Practices Cybersecurity DOJ Investment Adviser Investment Management New Guidance Risk Assessment SEC

You Can Settle Your Insider Trading Case with a Negligence-based Charge

This is almost certainly not true anymore. But it was true once! Maybe only once. Back in October 1991, the SEC sued Shared Medical Systems, a Pennsylvania health care information services company and three of its officers...more

7/23/2015 - Cease and Desist Enforcement Actions Insider Trading SEC Securities Act of 1933 Securities Exchange Act Settlement

Vivek Ranadivé and Wisconsin IA Both Big into Cherrypicking, According to Sources

Here’s a thing I think I know about billionaires: They’ve made piles and piles of money doing something someone somewhere surely advised them not to do because it was a dumb idea. Then later, actually dumb ideas come along...more

7/2/2015 - Enforcement Actions Exchange-Traded Products Investment Adviser SEC

Why Did BHP Billiton Settle an FCPA Case Including 7+ Year-Old Conduct?

Remember the Water Cube from the 2008 Olympics in Beijing? BHP Billiton has probably had reason to think about it recently. On Wednesday it settled an FCPA case with the SEC arising out of the company’s sponsoring the...more

5/22/2015 - Books & Records Bribery Enforcement Actions FCPA Foreign Official Internal Controls Olympics SEC Statute of Limitations

Insider Trading Recklessness and Kevin Love’s Shoulder

A couple of weeks ago I expressed skepticism about the ultimate impact of Judge Rakoff’s recent opinion in SEC v. Payton. In it, he held that for purposes of a motion to dismiss, the SEC had adequately alleged insider...more

5/6/2015 - Illegal Tipping Insider Trading Intent Judge Rakoff Personal Benefit SEC SEC v Payton

The SEC Doesn’t Love Secret Perks for Executives

If you find yourself as the CEO of a public company, you’ll probably find pluses and minuses. You’ll have to work really hard, but it can be lucrative, too. You can get paid a lot of money. And your company can pay you...more

4/28/2015 - C-Suite Executives CEOs Enforcement Actions Executive Compensation Internal Controls Publicly-Traded Companies SEC

Two Regulatory Crises

It strikes me that two civil regulators are facing dire attacks on aspects of their enforcement programs – both in different U.S. Courts of Appeals – at the same time. Both of these attacks arise out of generalized statutes...more

4/21/2015 - Appeals Cybersecurity Data Breach Enforcement Actions FTC FTC v Wyndham Illegal Tipping Insider Trading SEC Unfair or Deceptive Trade Practices US v Newman

A Non-Insider Trading Case in the District of Massachusetts

Insider trading prosecutions can be difficult. Because of the haphazard and tortuous growth of insider trading law itself, the prosecutions involve proving lots of different pesky elements. Fiduciary duties, materiality,...more

4/20/2015 - C-Suite Executives Confidential Information Criminal Prosecution FINRA Insider Trading Mail Fraud Retailers SEC Supply Chain Wire Fraud

Three Thoughts about the SEC’s First “Pretaliation” Case

I was on a flight last Wednesday when the SEC released the first of what whistleblower chief Sean McKessy has dubbed “pretaliation” cases against KBR, Inc. When I landed I had several emails from colleagues, asking, “Did you...more

4/10/2015 - Confidentiality Agreements Corporate Counsel Enforcement Actions Internal Investigations KBR (formerly Kellogg Brown & Root) Rule 21F SEC Securities Exchange Act Whistleblower Protection Policies Whistleblowers

SEC Releases Results of Cybersecurity Exam Sweep

We’re a bit behind on this, but better (a little bit) late than never. Last month the SEC’s Office of Compliance, Inspections and Examinations released the first results of its Cybersecurity Examination Initiative, announced...more

3/17/2015 - Broker-Dealer Compliance Cybersecurity FFIEC FinCEN Industry Examinations Investment Adviser NIST OCIE SAR SEC

The SEC Will Be Your Employment Law Agency, Too

The nature of the SEC’s business a regulator of public companies lends a certain expansive aspect to its jurisdiction. That is, when your job as a government agency is to be sure public companies are making complete and...more

3/3/2015 - Employer Liability Issues Jurisdiction Publicly-Traded Companies SEC Severance Agreements Whistleblowers

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