U.S. regulators, in particular the Commodity Futures Trading Commission (“CFTC”), are intently pursuing market manipulation enforcement. The September 30 end of the 2019 fiscal year brought with it a flurry of press releases from four different agencies announcing settlements of spoofing-related enforcement actions against trading firms, banks, interdealer brokers, and traders.
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Julie Bauman
Julie Bauman is an associate in the Government Contracts, Investigations & International Trade Practice Group in the firm's San Diego office.
SEC Enforcement’s Annual Report Prioritizes Retail Investors, Cryptocurrency, Cybercrime, and Individual Accountability
The Enforcement Division of the United States Securities and Exchange Commission (“SEC”) recently released its annual enforcement report (“Report”) for fiscal year 2018. The Report reflects an increased focus on retail investors, cryptocurrency, cybercrime, and individual accountability. Further, it showcases that SEC enforcement continues to be robust under the Trump administration, despite industry and media expectations to the contrary.
In fiscal year 2018, the SEC brought 821 enforcement actions, an approximately 8.8% increase from last year. The SEC collected approximately $3.9 billion in monetary penalties, a 4% increase from last year. Notably, however, a significant portion of this amount came from a single case, in which $1.8 billion in disgorgement and penalties were awarded for a large-scale corruption scheme. Moreover, while total monetary penalties rose, there was a decrease in the total amount of disgorgement imposed. This is likely due in part to the Supreme Court’s 2017 Kokesh decision, which held that SEC claims for disgorgement are subject to a five-year statute of limitations.
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Supreme Court Deals Blow to SEC By Applying Five-Year Statute of Limitations to Disgorgement Remedies in SEC Enforcement Actions
On June 5, 2017 the Supreme Court dealt a significant setback to the Securities and Exchange Commission (“SEC”) by limiting its power to extract ill-gotten profits from securities laws violators. Ruling 9-0 in Kokesh v. S.E.C., No. 16– 529, — S. Ct. — (June 5, 2017), the Court held that in SEC enforcement actions, “disgorgement” – a form of restitution in which a defendant must pay back wrongful gains – is subject to a five-year statute of limitations.
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FINRA Updates Its Sanction Guidelines
Earlier this month, FINRA announced changes to its Sanction Guidelines through Notice to Members 17-13. FINRA’s Sanction Guidelines are used by FINRA disciplinary hearing panels to decide what, if any, sanctions to impose in those enforcement actions in which a rule violation is found. FINRA enforcement staff and members of the defense bar utilize the guidelines in settlement negotiations.
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Embraer’s FCPA Deferred Prosecution Agreement and $205 Million Payment Demonstrate Need for Adequate Internal Controls
Brazilian aircraft manufacturer Embraer SA (“Embraer”) will pay the United States government $205 million to settle allegations that the company violated the Foreign Corrupt Practices Act (“FCPA”) by paying millions in bribes and falsifying accounting records. The United States government asserted that Embraer bribed government officials within the Dominican Republic, Saudi Arabia, and Mozambique with millions of dollars to win government aircraft contracts. The government also alleged Embraer paid millions in falsely recorded payments in India through a fraudulent agency agreement.
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Ninth Circuit Severely Limits “Rogue Employee” Exception for Corporations in Securities Fraud Cases
In an issue of first impression, the Ninth Circuit Court of Appeals recently held that a rogue corporate officer’s fraudulent intent can be imputed to a corporation even where the defrauding officer acted against the corporation’s interest, known as the “adverse interest exception.” In re ChinaCast Educ. Corp. Sec. Litig., — F.3d –, 2015 WL 6405680, at *5 (9th Cir. Oct. 23, 2015). In so holding, the Ninth Circuit created “an exception to the exception” – when an innocent third party relies on a defrauding officer’s apparent authority, the officer’s fraud can be imputed to the corporation even if that fraud was adverse to the corporation’s interest.
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