Corporate Defense and Disputes

Important developments in U.S. securities law, white collar criminal defense, regulatory enforcement and other emerging issues impacting financial services institutions, publicly traded companies and private investment funds

Category Archives: Securities Regulatory

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SEC Sanctions Dark Pool Operator and Affiliated High Frequency Trader

In the latest round of regulatory action involving high frequency trading and dark pools, the SEC announced yesterday that it reached a settlement with ITG, Inc., and its affiliate Alternet Securities, Inc., imposing a $20.3 million sanction based on ITG’s misuse of confidential order information to benefit the firm’s proprietary high-frequency trading.… Continue Reading

SEC Flexes Its Enforcement Muscle For Securities-Based Swaps

The broad definition of a “swap” in the Dodd-Frank Act, read literally, would encompass many transactions that Congress never intended to cover, so the SEC and the CFTC have jointly promulgated regulations that provide that many of those transactions are not treated as swaps.  However, a recent SEC Investor Alert, stating that fantasy stock trading … Continue Reading

Pay-to-Play Rule: SEC Announces Compliance Date for Ban on Third-Party Solicitation of Government Entities

Last month, the Securities and Exchange Commission (SEC) set a compliance date of July 31, 2015 for the ban on payments to third parties for the solicitation of advisory business from any government entity under Rule 206(4)-5 of the Investment Advisers Act of 1940 (Pay-to-Play Rule). At the same time, the SEC also clarified in … Continue Reading

Regulators Fail To Identify Cause Of Abnormal US Treasury Trading on October 15, 2014

Yesterday, the U.S. Department of Treasury, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, the SEC and the CFTC issued a Joint Staff Report analyzing the significant volatility in the U.S. Treasury market on October 15, 2014.  The analysis, however, “did not reveal a clear, single cause … Continue Reading

The Battle Lines Continue to Form Over the DOL’s Fiduciary Proposal

Earlier this month, the Securities Industry and Financial Markets Association (“SIFMA”) released its “Proposed Best Interests of the Customer Standard for Broker-Dealers” – an alternative to the U.S. Department of Labor’s (“DOL”) proposed regulation addressing the standard of care for broker-dealers and other financial professionals who provide retirement investment advice.  Unlike the DOL’s proposed rule, … Continue Reading

UK Regulators Address Manipulation of Trading Benchmarks and Other Misconduct

Concluding a year-long review, UK regulators issued the final report of the Fair and Effective Markets Review Committee last week, making a number of recommendations intended to restore confidence in the trading markets for fixed income, currency and commodities (“FICC”) in the wake of past misconduct. The report noted the substantial fines that have been … Continue Reading

FINRA CEO Criticizes DOL Fiduciary Proposal (Again)

Last week, Richard Ketchum, Chairman and CEO of the Financial Industry Regulatory Authority (“FINRA”), doubled-down on his recent criticism of the U.S. Department of Labor’s (“DOL”) proposed regulation addressing the standard of care for broker-dealers providing retirement investment advice. Speaking at FINRA’s annual conference, Chairman Ketchum said that, while he supports a “best interests of … Continue Reading

Senator Warren’s Letter to the SEC Chair Calls for More Aggressive Enforcement

Senator Elizabeth Warren recently released a letter to SEC Chair Mary Jo White, complaining that her leadership of the SEC over the past two years has been “extremely disappointing.” The Senator opined that the nation’s largest financial institutions are “mounting an aggressive effort to repeal, postpone, and dilute” the laws enacted by Congress following the … Continue Reading

FINRA Introduces Revised Sanction Guidelines

FINRA recently released updated and revised Sanction Guidelines and an accompanying Regulatory Notice that, among other things, call for stricter penalties against broker-dealers who commit fraud or violate suitability rules. The revisions are effective as of May 12, 2015. The Sanction Guidelines, first published in 1993, are intended to assist FINRA’s adjudicators in determining the … Continue Reading

FINRA Chairman: SEC Should Lead on Uniform Fiduciary Standard

On May 1, 2015, Richard Ketchum, Chairman and CEO of the Financial Industry Regulatory Authority (“FINRA”), reaffirmed his support for a uniform fiduciary standard for broker-dealers. Testifying before the House Financial Services Committee, Chairman Ketchum emphasized that the U.S. Securities and Exchange Commission (the “SEC”) – and not the U.S. Department of Labor (the “DOL”) … Continue Reading

CFTC Whistleblower Awards On The Horizon

In a recent interview with Law360 (subscription required), Chris Ehrman, the Director of the U.S. Commodity Futures Trading Commission’s Whistleblower Office, predicted that the number and size of the CFTC’s whistleblower awards will increase in the near future. Ehrman also said that the agency will conduct “straight marketing” to ensure that potential whistleblowers are aware … Continue Reading

Delaware Legislature to Consider New Fee-Shifting Legislation

On April 29, 2015, Senator Bryan Townsend introduced legislation that would amend the Delaware General Corporation Law (DGCL) to ban fee-shifting bylaws for Delaware stock corporations (non-stock corporations would continue to be able to adopt fee-shifting bylaws). The bill, Senate Bill No. 75, would also confirm the Court of Chancery’s decision in Boilermakers Local 154 … Continue Reading

SEC Rule Change Would Require High-Frequency Traders to Register with FINRA

On March 25, 2015, the SEC proposed an amendment to Rule 15b9-1 that would require high-frequency trading firms to register with FINRA.  According to the SEC, the proposed amendment will better align the scope of Rule 15b9-1 with today’s market structure. Rule 15b9-1, as presently written, exempts certain market participants from the requirement under the … Continue Reading

Proposed FINRA Rule Would Require Associated Persons Who Develop Algorithmic Trading Strategies To Register as Equity Traders

In the latest regulatory action addressing high frequency and other algorithmic trading, a recent FINRA Regulatory Notice seeks comment on a proposed rule change under which persons associated with a member firm would be required to register as Equity Traders under Rule 1032(f) if they are primarily responsible for the design, development or significant modification … Continue Reading

New York AG May Face A Tough Road In High Frequency Trading Case Against Barclays

Ruling on Barclays’ motion to dismiss the action brought by the New York Attorney General regarding Barclays’ alternative trading system (“ATS”), Justice Shirley Kornreich suggested that the AG may face substantial hurdles in proving its case, although the Court narrowly upheld the Martin Act claim as a matter of law. The AG based its claim … Continue Reading

Department Of Justice Emphasizes Expectation That Corporations Cooperate In The Prosecution Of Company Executives

The Justice Department continues to send the strong signal that it is looking to charge senior executives of companies.  At a conference this week in London, senior Justice Department official Deputy Assistant Attorney General Sung-Hee Suh focused not only on the high priority the Department places on prosecution of corporate executives but she also made … Continue Reading

SEC Examination Priorities in 2015 to Focus on Transparency Issues and the Early Detection of Potential Fraudulent or Other Illegal Activity

On January 13, 2015, the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) announced its 2015 examination priorities for investment advisers, broker-dealers and transfer agents.  These priorities emphasize the importance of transparency and seek to identify, through enhancements in technology, potential illegal activity by focusing on the following key areas. Protecting Retail Investors and Investors … Continue Reading

FINRA’s New Background Investigation Rule Will Likely Increase Firms’ Costs and Potentially Increases Exposure for Firms in Customer Disputes

Recently, the SEC approved FINRA’s proposed new Rule 3110(e) relating to background investigations of registered persons.  FINRA Rule 3110(e), which replaces NASD Rule 3010(e) and goes into effect on July 1, 2015, streamlines and clarifies the rule language by providing that “each member shall ascertain by investigation the good character, business reputation, qualifications and experience … Continue Reading

SEC Sanctions Two Exchanges for Failing to Accurately Describe Order Types and Making Preferential Disclosure to High Frequency Traders

On January 12, 2015, the Securities and Exchange Commission announced that it had obtained a $14 million settlement against two exchanges formerly owned by Direct Edge Holdings, EDGA and EDGX (the “Respondent Exchanges”) for their failure to file Exchange Rules that accurately described the order types they offered, and for providing preferential disclosure to certain … Continue Reading

FINRA’s 2015 Examination Priorities Zero In On Abusive Trading Algorithms and Other Issues Involving Trading Technology

FINRA’s recently-released Regulatory and Examinations Priorities Letter for 2015 reflects substantial regulatory interest in high-frequency trading and other issues arising from trading technology.  Regulatory concern over these issues has been previously reported on this blog here and here. The 2015 Letter states that FINRA has adapted its surveillance program to identify potentially violative conduct such … Continue Reading

SEC Working Papers Suggest Market Benefits From Certain Types of High-Frequency and Low-Latency Trading

Bringing quantitative analyses to the debate over high-frequency trading, two working papers recently made available by the SEC’s Division of Economic and Risk Analysis present economic models suggesting that there are market benefits from certain forms of high-frequency and low-latency trading.   In light of the on-going interest in high-frequency trading among various regulators, the recognition of … Continue Reading

SEC Focus on Disclosure Issues for Municipal Securities, Private Equity and ETFs

At the recent Columbia Law School Conference, “Hot Topics: Leading Current Issues in Securities Regulation and Enforcement,” SEC Commissioner Kara M. Stein’s keynote address focused on a number of transparency and disclosure issues regarding municipal securities, private equity and exchange traded funds. Municipal Securities Commissioner Stein highlighted the importance of municipal finance to the growth of … Continue Reading

Supreme Court May Reject Argument that Opinion Statements Are Actionable Simply Because False

During oral arguments in Omnicare v. Laborers District Council last week, the Supreme Court appeared to signal a rejection of the Sixth Circuit Court of Appeals’ position that a sincerely held statement of opinion or belief may be actionable under the Securities Act of 1933 simply because it was incorrect. The case concerns statements such … Continue Reading

Regulators Continue To Address High-Frequency Trading

Regulators across markets continue to show interest in high frequency trading and algorithmic trading generally. Recent developments in this area include: On October, 16, 2014, the SEC imposed a $1 million sanction on a high frequency trading firm, Athena Capital Research, which allegedly placed large numbers of rapid-fire orders in the final two seconds of … Continue Reading
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