This Holland & Knight blog post is the second installment in a two-part series that examines the challenges to the U.S. Securities and Exchange Commission's (SEC) charges in its landmark case against SolarWinds Corp....more
7/29/2024
/ Board of Directors ,
Chief Information Security Officer (CISO) ,
Corporate Governance ,
Cyber Attacks ,
Cybersecurity ,
Data Breach ,
Disclosure Requirements ,
Enforcement Actions ,
Fraud ,
Incident Response Plans ,
Material Misrepresentation ,
Misleading Statements ,
Publicly-Traded Companies ,
Risk Mitigation ,
Securities and Exchange Commission (SEC) ,
Securities Fraud ,
SolarWinds
The U.S. District Court for the Southern District of New York on July 18, 2024, dismissed most of the SEC's landmark cyber enforcement litigation against SolarWinds Corp. (SolarWinds or the Company) and the Company's Chief...more
7/24/2024
/ Audits ,
Chief Information Security Officer (CISO) ,
Corporate Counsel ,
Cybersecurity ,
Disclosure Requirements ,
Enforcement Actions ,
Enforcement Authority ,
Form 8-K ,
Hackers ,
Internal Controls ,
Material Misstatements ,
Materiality ,
Motion to Dismiss ,
NIST ,
Popular ,
Sarbanes-Oxley ,
Securities and Exchange Commission (SEC) ,
Software Developers ,
SolarWinds
The SEC continues to expand its cybersecurity enforcement authority to include allegations that a company's failure to monitor its managed security service providers (MSSP) amounts to violations of federal securities laws....more
7/9/2024
/ Accounting Controls ,
Chief Information Security Officer (CISO) ,
Corporate Governance ,
Cybersecurity ,
Data Breach ,
Disclosure Requirements ,
Enforcement Actions ,
Form 8-K ,
Incident Response Plans ,
Internal Controls ,
Personally Identifiable Information ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act
The SEC has been aggressively pursuing cybersecurity investigations and enforcement actions against public companies and foreign private issuers. In these actions, the SEC often alleges one of two theories: 1) that the...more
7/8/2024
/ Chief Information Security Officer (CISO) ,
Corporate Governance ,
Cyber Incident Reporting ,
Cybersecurity ,
Data Protection ,
Disclosure Requirements ,
Enforcement Actions ,
Foreign Private Issuers ,
Form 8-K ,
Materiality ,
Misrepresentation ,
Professional Liability ,
Publicly-Traded Companies ,
Puffery ,
Risk Management ,
Securities and Exchange Commission (SEC) ,
Security and Privacy Controls ,
SolarWinds
The New Orleans-based U.S. Court of Appeals for the Fifth Circuit (Court), on June 5, 2024, vacated the new private fund rules (Private Fund Rules) adopted by the SEC in August 2023, resulting in a significant victory for...more
The U.S. District Court for the Northern District of California on May 30, 2024, approved a settled final judgment against technology company Arista Networks' former chairman and CEO, Andreas "Andy" Bechtolsheim based on...more
6/11/2024
/ Acquisitions ,
Breach of Duty ,
Civil Monetary Penalty ,
Confidential Information ,
Enforcement Actions ,
Insider Trading ,
Material Nonpublic Information ,
Misappropriation ,
Rule 10b-5 ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
Securities Fraud ,
Settlement ,
Stock Options ,
Target Company
In recent remarks at the Securities Enforcement Forum West 2024, U.S. Securities and Exchange Commission (SEC) Director of the Division of Enforcement Gurbir Grewal extolled the benefits of and expounded on the elements of...more
The U.S. Securities and Exchange Commission's (SEC) Division of Corporation Finance Director Erik Gerding released a statement on May 21, 2024, addressing Disclosure of Cybersecurity Incidents Determined to be Material and...more
5/23/2024
/ Compliance ,
Compliance Dates ,
Corporate Governance ,
Cyber Incident Reporting ,
Cybersecurity ,
Disclosure Requirements ,
Form 8-K ,
Materiality ,
Publicly-Traded Companies ,
Risk Management ,
Securities and Exchange Commission (SEC) ,
Securities Regulation
The U.S. Securities and Exchange Commission (SEC) on March 6, 2024, adopted a new slate of standardized climate-related disclosure rules for public companies and foreign private issuers. Adopted by a 3-2 vote, the final rules...more
3/11/2024
/ Annual Reports ,
Climate Change ,
Corporate Governance ,
Corporate Social Responsibility ,
Disclosure Requirements ,
Environmental Social & Governance (ESG) ,
Final Rules ,
Financial Reporting ,
Foreign Private Issuers ,
Greenhouse Gas Emissions ,
Publicly-Traded Companies ,
Regulation S-K ,
Regulation S-X ,
Regulatory Agenda ,
Risk Assessment ,
Securities and Exchange Commission (SEC) ,
Securities Regulation
The U.S. Court of Appeals for the Fifth Circuit agreed recently to revisit a challenge to Nasdaq's board diversity rule. As we previously reported, a three-judge panel of the Fifth Circuit upheld the rule in October 2023....more
3/4/2024
/ Board of Directors ,
Corporate Governance ,
Disclosure Requirements ,
Diversity ,
Diversity and Inclusion Standards (D&I) ,
En Banc Review ,
Gender Equity ,
LGBTQ ,
Listing Standards ,
Nasdaq ,
Publicly-Traded Companies ,
Securities and Exchange Commission (SEC) ,
Woman Board Members
The SEC's five commissioners on March 6, 2024, will vote on whether to adopt long-awaited public company climate disclosure rules that would require registrants to report climate-related risks and metrics. In a Feb. 28, 2024,...more
Although the SEC has long adhered to its Seaboard Report of Investigation to outline the analytical framework for the agency's cooperation program for companies, the exact benefits of self-policing, self-reporting,...more
11/17/2023
/ Administrative Proceedings ,
Civil Monetary Penalty ,
Cooperation ,
Corporate Counsel ,
Department of Justice (DOJ) ,
Enforcement Actions ,
Internal Investigations ,
Non-Prosecution Agreements ,
Publicly-Traded Companies ,
Remediation ,
Securities and Exchange Commission (SEC) ,
Settlement ,
Voluntary Disclosure
In a series of settlements announced this year, the U.S. Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA) penalized several broker-dealers for allegedly failing to file...more
11/9/2023
/ Anti-Money Laundering ,
Banking Sector ,
Broker-Dealer ,
Compliance Monitoring ,
Enforcement Actions ,
Financial Industry Regulatory Authority (FINRA) ,
FinCEN ,
NASD ,
Registered Representatives ,
Regulation SHO ,
Remediation ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
Self-Reporting ,
Settlement ,
Suspicious Activity Reports (SARs) ,
Threshold Requirements
The SEC on Oct. 30, 2023, filed a landmark cybersecurity enforcement action against SolarWinds Corp. (SolarWinds) and the company's current Chief Information Security Officer (CISO) Timothy Brown. The SEC's complaint alleges...more
11/7/2023
/ Cyber Attacks ,
Cybersecurity ,
Data Breach ,
Enforcement Actions ,
Failure To Disclose ,
Information Technology ,
NIST ,
Popular ,
Securities and Exchange Commission (SEC) ,
Securities Regulation ,
Securities Violations ,
SolarWinds
The same day that the U.S. District Court for the Southern District of New York (SDNY) in SEC v. Ripple Labs, Inc. denied the SEC's request for an interlocutory appeal of the bombshell summary judgment ruling in the case, the...more
11/2/2023
/ Aiding and Abetting ,
Crypto Exchanges ,
Cryptoassets ,
Department of Justice (DOJ) ,
Digital Assets ,
Discovery ,
Dismissals ,
Federal Rules of Civil Procedure ,
FinCEN ,
Genuine Issue of Material Fact ,
Howey ,
Institutional Investors ,
Interlocutory Appeals ,
Judgment on the Pleadings ,
Registration Statement ,
Ripple ,
Securities ,
Securities and Exchange Commission (SEC) ,
Trading Platforms ,
Unregistered Securities
Digital assets are not the only coins drawing regulatory scrutiny these days. Earlier this year, the U.S. Securities and Exchange Commission (SEC) announced that it filed a complaint against California-based Red Rock Secured...more
10/27/2023
/ 401k ,
CFTC ,
Digital Assets ,
Enforcement Actions ,
Fraud ,
Individual Retirement Account (IRA) ,
Investment Advisers Act of 1940 ,
Parallel Proceedings ,
Rare Earth Metals ,
Retirement Plan ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
Securities Violations
As the SEC closed its fiscal year, it filed three separate enforcement actions against companies for purported violations of Rule 21F-17 under the Securities and Exchange Act of 1934, which prohibits persons from impeding...more
10/10/2023
/ Civil Monetary Penalty ,
Compliance ,
Contract Terms ,
Employment Contract ,
Enforcement Actions ,
Policies and Procedures ,
Remediation ,
Retaliation ,
Rule 21F-17 ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
Securities Violations ,
Separation Agreement ,
Whistleblower Protection Policies ,
Whistleblowers
Specifically, the SEC wants a change to persuade the U.S. Court of Appeals for the Second Circuit – now, not later – of its view that Torres got it wrong when she determined that the company's offer and sale of its XRP token...more
8/11/2023
/ Cryptoassets ,
Digital Assets ,
Digital Platforms ,
Discovery Disputes ,
Enforcement Actions ,
Howey ,
Interlocutory Appeals ,
Investment Contract ,
Popular ,
Securities Act of 1933 ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
Security-Based Swaps ,
Token Sales ,
Trading Platforms ,
Unregistered Securities
We return once more to the issue of public company executive perquisites or "perks" – a topic we anticipated last year would "be a hot-button enforcement issue for the foreseeable future." We were not wrong. In light of the...more
7/11/2023
/ Compensation & Benefits ,
Cooperation ,
Corporate Governance ,
Enforcement Actions ,
Executive Compensation ,
Failure To Disclose ,
Perks ,
Publicly-Traded Companies ,
Regulatory Violations ,
Securities and Exchange Commission (SEC) ,
Securities Violations ,
Self-Reporting
In a one-two punch earlier this month, the U.S. Securities and Exchange Commission (SEC) brought successive actions against two of the world's largest cryptocurrency exchanges – the first blows in what will likely be...more
Public companies should be mindful not to interfere with or retaliate against whistleblowers, and stretching is best reserved for the yoga mat, not the numbers in a company's public disclosures. So says the U.S. Securities...more
6/12/2023
/ Anti-Retaliation Provisions ,
Dodd-Frank ,
Enforcement Actions ,
Publicly-Traded Companies ,
Retaliation ,
Rule 21F-17 ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
Securities Violations ,
Severance Agreements ,
Whistleblower Awards ,
Whistleblower Protection Policies ,
Whistleblowers
Ages ago, hieroglyphics were painstakingly etched into stone. They communicated various types of messages, from fables to business transactions, and lasted thousands of years. Today, we still communicate the same type of...more
5/26/2023
/ Broker-Dealer ,
Compliance ,
Data Preservation ,
Department of Justice (DOJ) ,
Discovery ,
Electronic Communications ,
Enforcement Actions ,
Instant Messaging Apps ,
Mobile Devices ,
New Guidance ,
Recordkeeping Requirements ,
Registered Investment Advisors ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act
Recently, the U.S. Supreme Court agreed to revisit one of its most significant rulings affecting administrative rules and regulations by granting cert in the matter Loper Bright Enterprises v. Raimondo. The court's decision...more
5/19/2023
/ Administrative Interpretation ,
Chevron Deference ,
Clean Air Act ,
Congressional Intent ,
Constitutional Challenges ,
Environmental Protection Agency (EPA) ,
Judicial Review ,
Legal History ,
National Marine Fisheries Service ,
NOAA ,
Rulemaking Process ,
SCOTUS ,
Securities and Exchange Commission (SEC) ,
U.S. Commerce Department ,
Vessels
The SEC announced on Dec. 7, 2022, a second reopening of the public comment period for its proposed Share Repurchase Disclosure Modernization rule (Rule), first proposed on Dec. 15, 2021. The initial 45-day comment period was...more
SEC Chair Gary Gensler is facing criticism from lawmakers concerned that the agency's "aggressive agenda" is endangering the U.S. securities markets, in part due to challenges the SEC is facing from staffing shortages and...more