The Court of Appeals for the Second Circuit yesterday affirmed the dismissal of a securities class action alleging misrepresentations arising from generalized statements about an issuer’s compliance efforts and Code of Ethics. The decision in Singh v. Cigna Corporation held that such generic statements are not material because a reasonable investor could not have relied on them as representations of regulatory compliance. Continue Reading
The Delaware Supreme Court held yesterday that a corporation can be required to produce emails and other electronic documents where necessary to satisfy a shareholder’s legitimate request to inspect corporate books and records under § 220 of the Delaware General Corporation Law. The Supreme Court also held that, under the circumstances of the case, a court could not impose jurisdictional limitations on the shareholder’s use of documents obtained through the § 220 inspection process. Continue Reading
The Court of Appeals for the Tenth Circuit held today that the Securities and Exchange Commission may bring an enforcement action based on allegedly foreign securities transactions involving non-U.S. residents if sufficient conduct occurred in the United States. Continue Reading
A lot of ink has been spilled over the crime of insider trading, which – in the view of U.S. District Judge Jed Rakoff – “is a straightforward concept that some courts have managed to complicate.” In his recent decision in United States v. Pinto-Thomaz (S.D.N.Y. Dec. 6, 2018), Judge Rakoff attempts to simplify insider-trading law by returning to its roots: embezzlement, and use of stolen property. Continue Reading
The Amsterdam Court of Appeal has approved a €1.3 billion collective settlement of claims asserted on behalf of shareholders of the former Fortis (now Ageas). The July 13, 2018 decision again shows that the Dutch Act on Collective Settlement of Mass Claims (the “WCAM”) can be used to resolve transnational disputes regardless of whether those claims could be litigated adversarially on a classwide basis in the Netherlands or elsewhere. Continue Reading
The Second Circuit confirmed this week that a “meaningfully close personal relationship” is not required for insider-trading liability where a tipper discloses inside information as a gift with the intent to benefit the tippee. The June 25, 2018 decision on panel rehearing in United States v. Martoma (No. 14-3599) retreats from the panel’s original decision and no longer effectively overrules a portion of the Second Circuit’s 2014 decision in United States v. Newman, which had refused to infer a tipper’s intent to benefit a tippee in the absence of a meaningfully close relationship and a pecuniary or similarly valuable benefit in exchange for the tip. The new panel decision – again a 2-1 ruling – now holds that the requisite relationship described in Newman can be established by proving “either [i] that the tipper and tippee shared a relationship suggesting a quid pro quo or [ii] that the tipper gifted confidential information with the intention to benefit the tippee.”
On June 4, we posted a summary of SEC Enforcement Co-Director Steven Peikin observations during his recent keynote address at the New York City Bar Association’s 7th Annual White Collar Crime Institute. Co-Director Peikin imparted a few suggested “do’s and don’ts” for effective communication with the SEC during the Wells process. Although Co-Director Peikin’s suggestions should serve as helpful guides to defense counsel, we believe a few of the observations bear further consideration.
1. Potential Advice of Counsel Defense.
Co-Director Peikin stated that “[i]n my experience, alluding to privileged information [in connection with a potential advice of counsel defense] in [a] Wells meeting – but not sharing it with the staff – is not effective” because the Division “cannot ground our decision-making on documents we cannot see or testimony we cannot hear.” While it may be true that the Division will not rest its decision whether to recommend an action solely on an undisclosed, potential reliance on advice of counsel defense, it is also unlikely that the Division will simply ignore such a possible defense. At the very least, the Division will have to consider the possible defense as a potential litigation risk. The Commission has been so concerned about the problems associated late claims of the reliance on advice of counsel or other professionals, that in 2016, it amended the Rules of Practice for its administrative proceedings to require, among other things, that respondents state in the answer whether the respondent relied on the advice of counsel, accountants, auditors, or other professionals.
There may be situations in which it makes sense to waive the privilege so that the Division can fully evaluate an advice or presence of counsel defense. But there may also be situations in which a respondent may have such a defense, but is not yet ready to waive the privilege. In those situations, defense counsel should not hesitate to raise the existence of the potential defense during a Wells meeting.
2. Commission Votes.
Co-Director Peikin also stated that “my experience has been that is not particularly persuasive when defense counsel argues at a Wells meeting that we won’t have the votes for a particular case, or that a particular Commissioner will not support what we propose recommending.”
However, Commissioners often publicly state their positions on enforcement-related issues. For example, Commissioner Peirce recently stated that “[c]ivil penalties against corporations are another area of concern and a reason that I have voted against some enforcement recommendations” because “[a]fter being the victims of the fraud that led to the SEC investigation, shareholders are now paying a corporate penalty to resolve the matter.” While it will rarely be beneficial for defense counsel to argue that she knows “the Commissioners’ views better than [the Co-Directors] do,” defense counsel should not hesitate to raise during a Wells meeting arguments that have been endorsed publicly by a Commissioner – and to note that endorsement.
Co-Director Peikin stated that “I have found that it is rarely productive when defense counsel uses a Wells meeting to threaten to take us to trial.” However, it is not unusual for a respondent to feel that certain issues are of such importance that they are willing to litigate over them. For example, an individual who is associated with an investment adviser will likely find an industry bar, which will almost certainly end the individual’s career, to be a deal-breaker.
While “[s]imply telling [Enforcement] that the client will litigate” is unlikely to be productive, it can be beneficial for defense counsel to explain that a respondent feels strongly about certain issues or remedies and is willing to litigate over them. This is particularly true in the current environment in which the SEC has limited resources and must be judicious about expending resources on litigation.
Finally, Co-Director Peikin stated that “Wells meetings are least productive when defense counsel raise what I call ‘non-starters,’” which he described as “issues of programmatic importance on which counsel knows that the Commission and the Division have taken clear and consistent positions, and on which we simply don’t have any ability to compromise.” By way of example, he explained that “defense counsel will not make much progress if they ask us during a Wells meeting to forego an injunction in a settled district court action due to possible Kokesh statute of limitations issues.”
However, the SEC’s view that an issue is a “non-starter” does not insulate the issue from challenge or litigation risk. For example, the SEC had long held the position that its disgorgement claims were not subject to the five-year statute of limitations – until the Supreme Court ruled last year in Kokesh that they were. Defense counsel should not hesitate to explain during a Wells meeting that she intends to challenge a long-held position of the SEC if that is the case. At the very least, such arguments could impact the SEC’s willingness to compromise on other potential remedies as part of a settlement.
Our full summary of Co-Director Peikin’s observations can also be read in the June 13 Law360 article, “Tips For Navigating The SEC Wells Process.”