A high profile action brought recently by the SEC and DOJ against a SpaceX engineer exemplifies the federal government’s ability to monitor the dark web, despite its anonymity. Regardless of the difficulties in monitoring for sensitive information disseminated on the dark web, companies need to take proactive, prophylactic steps to help minimize the danger that company insiders will misuse access to material nonpublic information.
There was a perception in 2017 when then President-elect Trump took office that white collar enforcement actions under the US Department of Justice (DOJ) might drop dramatically. Many expected the Republican administration to effect policy changes or resourcing decisions that would keep corporations out of the spotlight when it came to major investigations and massive penalties. But, in surveying the last four years, the opposite happened.
On December 3, the SEC adopted Rule 2a-5 under the Investment Company Act of 1940, as amended. Under Rule 2a-5, determining fair value in good faith with respect to what a fund will require: (1) the periodic assessment and management of material risks associated with the determination of the fair value of the fund’s investments,
On December 1, 2020, The Nasdaq Stock Market filed a proposed rule with the U.S. Securities and Exchange Commission (SEC), which, if approved, will require listed companies to disclose the racial, LGBTQ+ status, and gender makeup of their boards of directors and have a minimum number of diverse directors or explain why they could not—or elected not to—achieve the established targets.
On October 7, 2020, the Securities and Exchange Commission (SEC) voted to provide much needed clarity to the regulatory status of so-called “finders” who assist small businesses in raising capital. In a 3-to-2 vote, the SEC proposed a Finder exemption to the broker-dealer registration requirements of Section 15(a) of the Securities Exchange Act of 1934 to allow unregistered natural persons, referred to as finders, to engage in certain limited activities to assist issuers in raising capital from accredited investors.
On October 7, 2020, the Securities and Exchange Commission (SEC) adopted Rule 12d1-4 and other amendments under the Investment Company Act of 1940, as amended, which streamline and enhance the regulatory requirements for registered investment companies and business development companies to acquire shares of other funds in excess of the limits in Section 12(d)(1) of the 1940 Act.
SEC rules governing accredited investors are designed to protect individual investors from risks that could result from the lack of regulatory oversight associated with unregistered private securities offerings. By expanding the definition of “accredited investor,” the SEC has provided more investors with the opportunity to access alternative investments and given companies, private-equity firms, and hedge funds access to a larger pool of investors.
Under the rule amendments, the SEC significantly revised public company business disclosure rules for the first time in more than 30 years. The amendments were crafted from a proposed rule released in August 2019 that was part of a comprehensive review by the SEC of the disclosure requirements per a study mandated by the JOBS Act.
On June 22, 2020, in Liu v. SEC, the Supreme Court affirmed in an 8-1 ruling that the Securities and Exchange Commission may continue to pursue disgorgement awards under the federal securities law provided that the award is capped at the defendant’s net profits, and further, provided that the award is made for the benefit of wronged investors. In so holding, the Court struck a middle ground by narrowly preserving one of the most powerful enforcement mechanisms available to the agency but limiting the awards more closely than the awards the SEC has sought over the years.