Topic: Enforcement Actions

Disclosure Violations Arising from Operational Wrongdoing

The recent SEC enforcement action against Volkswagen AG and its former CEO illustrates the ‎securities law consequences of operational wrongdoing.‎ ‎ As described by the SEC, from at least ‎‎2007 through 2015, Volkswagen sold “clean diesel” cars while concealing their emissions ‎problems through use of an undisclosed defeat device.

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SEC Takes Seriously Both Internal Control Weakness Disclosure and Remediation

On January 29, 2019, the SEC announced settled enforcement actions against four companies for ‎failures to maintain internal control over financial reporting (“ICFR”) as required by Section ‎‎13(b)(2)(B) of the Securities Exchange Act and Rule 13a-15 over extended periods even though ‎in most cases material weaknesses in their ICFR were disclosed.‎

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Locke Lord QuickStudy: SEC Office of Compliance Inspections and Examinations Release National Exam Program Examination Priorities for 2019

On December 20, 2018, the Office of Compliance Inspections and Examinations (“OCIE”) of the Securities and Exchange Commission (“SEC”) issued its 2019 examination priorities letter. OCIE releases examination priorities annually in order to provide a summary of key areas where OCIE intends to focus resources in the coming year. 

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SEC Speaks: Digital Asset Securities Issuance and Trading

On November 16, 2018, the SEC’s Division of Corporation Finance, Division of Investment Management, and Division of Trading and Markets (the “Divisions”) issued a statement on “Digital Asset Securities Issuance and Trading.” The statement highlights several recent SEC enforcement actions involving the intersection of the U.S. securities laws and new technologies.

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Tweeting Misleading Information is Not an Acceptable Response to Short Sellers

We recently wrote about short sellers being the scourge of public companies and the availability of a response from the SEC (here).  The SEC has now made clear in an enforcement action against Elon Musk, the CEO of Tesla Inc., a favorite of short sellers, that a response that is not acceptable is releasing false and misleading information, even by tweet, to pump up the stock price (here).

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The Meaning of the SEC Chairman’s Statement Regarding Staff Views

On September 13, 2018, following the lead of other federal agencies, SEC Chairman Jay Clayton issued a reminder that SEC staff positions are nonbinding and create no enforceable legal rights or obligations of the Commission or others, and thus is to be distinguished from actions by the Commission (https://www.sec.gov/news/public-statement/statement-clayton-091318).

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A Lesson From SeaWorld

From time to time there is an SEC enforcement action that has a broader lesson for public companies.  The recent settled enforcement action against SeaWorld Entertainment, Inc. (https://www.sec.gov/news/press-release/2018-198) is one of those.  In SeaWorld the SEC charged the company, its CEO and its vice president of communication with misleading investors when they failed to accurately disclose the impact of the Blackfish documentary, which criticized SeaWorld’s treatment of orcas, on the company’s reputation and business.

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Giving Manipulators Short Shrift

Few things annoy a company more than when a short-seller starts bad-mouthing the company to drive down its share price and the company can do little about it.  Now, as a result of a recent SEC enforcement action, there may be some recourse against such troublesome activity.

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