David Smyth

David Smyth

Brooks Pierce

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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 Section 5 of FTC Act 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 Channel Check 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

In Ordering Disgorgement in SEC Cases, Courts Have Discretion, but Not That Much Discretion

When defendants argue in federal court against the SEC’s calculation of a disgorgement figure, they hear a lot of this: “A district court has broad discretion to order disgorgement of profits obtained through...more

2/24/2015 - Burden of Proof Disgorgement SEC Securities Fraud

One Good Thing and One Bad Thing about SEC Administrative Proceedings

One of my favorite lines from my kids’ books involves a cat named Pickles who’s having something of an identity crisis. Pickles doesn’t really have an owner, but does have a temporary caretaker, who tells him, “Pickles,...more

2/19/2015 - Administrative Hearings Enforcement Actions SEC

The SEC Totally Cares about Its Injunctions

Last week I wrote a post discussing the injunctions the SEC typically obtains against defendants in federal court. I noted the oddity of these obey-the-law injunctions and wondered aloud why the Commission never pursues...more

1/27/2015 - Civil Monetary Penalty Contempt Enforcement Actions Injunctions Permanent Injunctions SEC

The SEC Does Not Care about Its Injunctions

It won’t surprise you to learn that the U.S. Code includes this provision: “A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority . . . as...more

1/20/2015 - Civil Monetary Penalty Disgorgement Enforcement Actions Injunctions Rule 65 SEC

Does SEC Enforcement Treat Bigger Companies Differently?

I’m stealing the title of this post from Broc Romanek, who asked this question on January 2nd. He was responding to a study authored by Jonas Heese, an assistant professor at Harvard Business School who has authored a study...more

1/8/2015 - Enforcement Actions Enforcement Statistics Publicly-Traded Companies SEC

Second Circuit Limits Insider Trading Law for Remote Tippees

Matt Levine is a big jerk. He just sits there at Bloomberg following events in finance and securities enforcement, and then writes interesting things about those events really quickly and with insight that no one else has...more

12/12/2014 - Appeals Dell Indictments Insider Trading Material Nonpublic Information Nvidia Reversal SEC US v Newman

Caution: Aggressive Interpretation of Broker-Dealer Registration Provisions Could Be Hazardous to Your Ability to Stay out of...

Let’s do some compare and contrast, starting with a fairly unremarkable case the SEC filed in the Northern District of Texas on November 20th. In that action, the Commission sued the father-son duo of Paul and Jeffrey Downey...more

12/2/2014 - Broker-Dealer Mineral Leases Oil & Gas Registration SEC Securities Fraud

Proposed “Fair Fund” for CR Intrinsic Case Stirs Dustup among SEC’s Commissioners

In the right kind of enforcement action, the SEC can take the money it’s generated and set up what’s called a Fair Fund to redistribute that money to harmed investors. But what is the right kind of case? This procedure was...more

11/13/2014 - Enforcement Enforcement Actions Fair Fund Sarbanes-Oxley SEC

SEC and FINRA Issue Risk Alert on Penny Stock Companies

I’m not your legal advisor. And I’m definitely not your investment adviser. But the first rule of penny stock companies should be: do not invest in penny stock companies. I mean, does that seem like a smart thing to do? ...more

11/12/2014 - EDGAR FINRA Investors OTC SEC Stocks

SEC Sanctions Auditor, Should Make Small Issuers Think Twice

The SEC brought a settled administrative action against an auditor on October 24th. Often I’ll take a case like this and write something about it to warn other auditors (or investment advisers or broker-dealers, or whomever)...more

11/4/2014 - Auditors Audits Broker-Dealer Compliance Enforcement Investment Adviser SEC

Rengan Rajaratnam Settlement Exposes Weak Point in SEC’s Newish Admissions Policy

You remember Rengan Rajaratnam, right? He broke the S.D.N.Y.’s long streak of insider trading victories when a jury acquitted him in July. I wondered what the effect on his case with the SEC would be. Would he settle? ...more

10/27/2014 - Admissions Chief Compliance Officers Compliance Insider Trading SEC

SEC Issues Risk Alert, Smacks E*Trade on Penny Stock Sales

On October 9th the SEC brought a settled administrative action against E*Trade Securities and G1 Execution Services (formerly E*Trade Capital Markets) for their part in the unregistered sales of billions of shares of penny...more

10/24/2014 - Broker-Dealer E*Trade Enforcement Actions Risk Alert SEC

DOJ’s Marshall Miller: You’re All FCPA Lawyers Now

Marshall Miller, the Justice Department’s principal Deputy Assistant Attorney General for the Criminal Division, has been heating up the compliance conference circuit in recent weeks. On September 17th, it was the Global...more

10/22/2014 - BNP Paribas Chief Compliance Officers Compliance Corporate Culture DOJ Ethics FCPA FCPA Resource Guide Professional Conferences Risk Management SEC

Wrapping up Securities Enforcement Forum 2014

I was lucky enough to spend Tuesday at Bruce Carton’s Securities Enforcement Forum 2014. In three years, it has gone from zero to the preeminent securities enforcement law conference anywhere. I blogged it hurriedly...more

10/17/2014 - Compliance Enforcement Enforcement Actions FCPA SEC

Securities Enforcement Forum 2014 — SEC/FINRA Investigations & Cybersecurity Priorities

Yesterday I blogged from the Securities Enforcement Forum 2014, Bruce Carton’s excellent one-day conference, held at the Four Seasons hotel in Washington, D.C. The posts will be fairly raw, and certainly not verbatim...more

10/16/2014 - Cybersecurity FINRA SEC Strategic Enforcement Plan

Securities Enforcement Forum 2014 — Directors Panel

Yesterday I blogged from the Securities Enforcement Forum 2014, Bruce Carton’s excellent one-day conference, held at the Four Seasons hotel in Washington, D.C. The posts will be fairly raw, and certainly not verbatim...more

10/16/2014 - Big Data DOJ Insider Trading Investment Adviser Market Access Rule Market Manipulation MCDC OCIE Pyramid Schemes SEC Strategic Enforcement Plan

Securities Enforcement Forum 2014 — Current Developments in Trials, Testimony, Wells, APs and Settlements

Yesterday, I blogged from the Securities Enforcement Forum 2014, Bruce Carton’s excellent one-day conference, this year held at the Four Seasons hotel in Washington, D.C. The posts will be fairly raw, and certainly not...more

10/16/2014 - Professional Conferences SEC Strategic Enforcement Plan

Securities Enforcement Forum 2014 — FCPA, SEC/DOJ Joint Actions, and Other Recent Criminalization Trends

Today I’m blogging from Securities Enforcement Forum 2014, Bruce Carton’s excellent one-day conference, this year being held at the Four Seasons hotel in Washington, D.C. The posts will be fairly raw, and certainly not...more

10/15/2014 - Compliance Criminalization DOJ Enforcement Actions FCPA Joint Plan of Action SEC Strategic Enforcement Plan

Securities Enforcement Forum 2014 — Financial Reporting and Accounting Fraud

Today I’m blogging from Securities Enforcement Forum 2014, Bruce Carton’s excellent one-day conference, this year being held at the Four Seasons hotel in Washington, D.C. The posts will be fairly raw, and certainly not...more

10/15/2014 - Accounting Accounting Fraud Financial Reporting PCAOB SEC Strategic Enforcement Plan

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