InfoBytes Blog
Filter
Subscribe to our InfoBytes Blog weekly newsletter and other publications for news affecting the financial services industry.
SEC charges company for defrauding customers for $6M via false IPO
On August 26, the SEC filed a complaint and demand for a jury trial against a South Dakota corporation, its China-based investment adviser, and their CEO for allegedly defrauding investors out of millions of dollars in violation of several securities laws. The SEC alleges the defendants made false statements about guaranteed returns, the safety of client investments, the investment adviser’s business relationships, and the status of an IPO — which never occurred. According to the complaint, the defendants stopped communicating with investors and the website used to access funds was taken down.
The SEC seeks several forms of relief in its complaint, including a permanent injunction preventing the defendants from continuing their alleged fraudulent activities, disgorgement of funds, and civil penalties. Additionally, the SEC requested that the CEO be barred from serving as an officer or director of a public company.
FINRA charges member firm with Regulation Best Interest violations
On August 5, FINRA accepted a Letter of Acceptance, Waiver, and Consent (AWC) against a member firm for three alleged violations related to the failure to maintain policies and procedures and supervisory systems in compliance with federal law. First, the firm allegedly failed to establish and maintain written policies and procedures in compliance with Regulation Best Interest (Reg BI) since June 2020. According to FINRA, this lapse led to violations of the Securities Exchange Act Rule 15l-1(a)(1) and breaches of FINRA Rules 3110 and 2010. The firm also allegedly neglected its obligations under Exchange Act Rule 17a-14, which mandates the preparation of a customer relationship summary (Form CRS). From June 2020 to July 2023, FINRA claims the firm did not have a proper supervisory system tailored to ensure compliance with its Form CRS obligations. This oversight resulted in additional violations of FINRA Rules 3110 and 2010.
Last, the firm allegedly failed to file necessary documents in a timely manner for three private placement offerings sold to retail investors between April 2020 and March 2022. These filings were allegedly made almost two years late, and only after specific requests from the regulatory authority. The firm’s supervisory system was also lacking according to FINRA, as it designated an individual no longer associated with the firm to oversee these filings, violating FINRA Rules 3110 and 2010. The firm consented to a censure and a $60,000 fine as part of the settlement. Additionally, a senior management member must certify within 60 days that the firm has remediated the identified issues and implemented compliant policies and procedures.
FINRA fines broker $165K for lack of supervisory controls and market access rule violations
Recently, FINRA accepted a Letter of Acceptance, Waiver, and Consent (AWC) against a broker providing self-directed, online brokerage services to institutional and retail customers. The broker previously received a $595,000 fine in April 2015 for allegedly failing to supervise potentially manipulative trading and failing to have reasonable market access controls and procedures. This month’s AWC was based on similar alleged conduct, finding from November 2017 to January 2020, the broker allegedly failed to establish a supervisory system prohibiting potentially manipulative trading in violation of FINAR Rules 3110 and 2010. FINRA supervision found the broker implemented a third-party surveillance system without tailoring it to the firm’s business model or order flow, assigned one trader ID number for each customer even when the account had more than one trader, and closed alerts without reasonable follow-up or investigation.
The broker also allegedly violated Section 15(c)3-5 of the Securities Exchange Act, Exchange Act Rule 15c3-5, and FINRA Rule 2010 during that same period by failing to maintain market access controls and procedures. FINRA alleged the broker did not implement a system of controls to set the appropriate credit thresholds for each customer and instead relied on clearing firms. FINRA also alleged the broker failed to provide documentation evidencing how customers’ credit controls were established or designed. Due to these violations, FINRA issued a censure, a $165,000 fine, and a certification in writing that the issues have been remedied within 90 days.
SEC opens comments for new “green governance” exchange
On July 23, the Federal Register published a notice requesting comments about an application to establish a new sustainability-focused securities exchange. The applicant filed a Form 1 application with the SEC to seek registration as a national securities exchange under Section 6 of the Securities Exchange Act of 1934. The SEC will solicit comments from the public regarding whether to permit the company’s request to be registered. The company would be owned wholly by its parent company and operate a fully automated electronic trading platform to trade equities. To list as a company under this exchange, the exchange will require all companies to comply with its “Green Governance Standards,” designed to provide “transparency and accountability for all listed companies’ green and sustainability promises.” According to Form 1, a company listing on the new exchange will be able to maintain its listing on its primary exchange. More details on the proposal can be found in Exhibit E of the proposed exchange’s Form 1 application. Comments must be received by September 6.
FINRA accepts AWC regarding Regulation Best Interest/Form CRS
On July 19, FINRA accepted a Letter of Acceptance, Waiver, and Consent (AWC) from a member firm to resolve alleged Regulation Best Interest (Reg BI) violations. According to the AWC, from June 2020 to March 2023, the member firm allegedly failed to implement written policies and procedures for compliance with Reg BI, which generally requires a broker-dealer to act in the best interest of a retail customer when recommending a securities transaction or an investment strategy involving securities without placing the financial or other interest of the broker, dealer, or associated person ahead of the interest of the retail customer. FINRA alleged that the firm’s written supervisory procedures lacked specific guidelines for Reg BI compliance, and it inadequately addressed Reg BI. As a result, the firm was alleged to have willfully breached Exchange Act Rule 15l-1(a)(1) and Municipal Securities Rulemaking Board (MSRB) Rule G-27, along with FINRA Rules 3110 and 2010. Additionally, the firm allegedly had inadequate written supervisory procedures, which failed to comply with Form CRS requirements issued by the SEC.
Respondent agreed to a censure and a $35,000 fine, $17,500 of which pertained to the violations of MSRB Rule G-27.
FINRA fines securities firm for failing to use an escrow agent
Recently, FINRA released its letter of acceptance, waiver, and consent (AWC) against a securities firm for allegedly failing to use an escrow agent to custody customer funds. Among other things, the firm deposited investor funds for both offerings into accounts that its registered representative established and controlled, rather than with a bank. According to FINRA, these actions, discovered during a firm examination, violated the Exchange Act § 15(c)(2), Rule 15c2-4 thereunder, and FINRA Rule 2010. The firm further failed to both “promptly return customer funds” when the contingency was not met and changed material terms in its 2020 offering; violating Exchange Act §10(b), Rule 10b-9 thereunder, and FINRA Rule 2010. The firm consented to receiving a censure and a $20,000 fine.
SEC files complaint against a digital platform for unregistered offer and sales of securities and acting as unregistered broker
Recently, the SEC released its complaint against a digital platform that acted as an unregistered broker and seller of crypto-asset securities transactions. The SEC alleges that since 2020 the platform brokered over 36 million crypto-asset transactions between investors and third parties, collecting over $250 million in fees. Since at least 2023, the platform allegedly engaged in unregistered offers and sales of securities. The SEC alleged the platform was not registered as a broker despite operating as one in violation of Section 15(a) of the Securities Exchange Act of 1934. Additionally, the SEC alleged the platform also engaged in unregistered offers and sales of securities in violation of Sections 5(a) and (c) of the Securities Act of 1933. Further, the SEC alleged the platform acted as an underwriter and distributor of securities. The SEC seeks (i) to permanently enjoin the platform from violating these securities laws and (ii) payment of civil money penalties.
Supreme Court holds that defendants are entitled to jury trial if the SEC seeks civil penalties
On June 27, the U.S. Supreme Court decided SEC v. Jarkesy which held that, pursuant to the Seventh Amendment, when the SEC brings an enforcement action seeking civil penalties, it must do so in federal court, where a jury trial is available, rather than through its own in-house proceedings. When the SEC would adjudicate a matter in-house, however, there were no juries — the Commission (or a delegated member or Administrative Law Judge) presided over the action and acts as the factfinder.
In the underlying case (covered by InfoBytes here), the SEC initiated an enforcement action and sought, among other remedies, civil penalties. The SEC, as was typical, adjudicated the matter in-house rather than proceed in federal court and imposed a $300,000 civil penalty. The defendant sought review, ultimately raising before the Supreme Court the question of whether the Seventh Amendment entitled a defendant to a jury trial when the SEC seeks civil penalties for securities fraud. The Supreme Court held that it did as the Seventh Amendment guaranteed that “the right of trial by jury shall be preserved” in “suits at common law”; “money damages are the prototypical common law remedy,” and civil penalties — a form of monetary relief — were “a type of remedy at common law that could only be enforced in courts of law.”
For a deeper look at this important case, please read our recent Orrick Insight here.
SEC Chair Gensler weighs in on AI risks and SEC’s positioning
On February 13, SEC Chair Gary Gensler delivered a speech, “AI, Finance, Movies, and the Law” before the Yale Law School. In his speech, Gensler spoke on the crossovers between artificial intelligence (AI) and finance, system-wide risks on a macro-scale, AI offering deception, AI washing, and hallucinations, among other topics.
Gensler discussed the benefits of using AI in finance, including greater financial inclusion and efficiencies. However, he highlighted that the use of AI amplifies many issues, noting how AI models can be flawed in making decisions, propagating biases, and offering predictions. On a system-wide level, Gensler opined how policy decisions will require new thinking to overcome the challenges to financial stability that AI could create. Gensler addressed AI washing, stating that it may violate securities laws, emphasizing that any disclosures regarding AI by SEC registrants should still follow the “basics of good securities lawyering” for disclosing material risks, defining the risk carefully, and avoiding disclosures that could mislead the public regarding the use of an AI model. Lastly, Gensler warned about AI hallucinations, saying that advisors or brokers are not supposed to give investment advice based on inaccurate information, closing with “You don’t want your broker or advisor recommending investments they hallucinated while on mushrooms.”
SEC to expand “dealer” definition after adoption of two rules
On February 6, the SEC announced its adoption of rules expanding application of the Securities Exchange Act of 1934 (the Exchange Act) to require market participants that “take on significant liquidity-providing roles” to register with the SEC as “dealers” under Sections 15(a) or 15C. In the introduction to the final rule, the SEC explained that “advancements in electronic trading across securities markets” have led to new market participants playing a larger role in market activity that was traditionally supplied by dealers. Additionally, as noted in the SEC’s Fact Sheet, the rules require such market participants to become members of a self-regulatory organization (SRO) and comply with federal laws. The SEC’s rule changes address the phrase “as part of a regular business” in sections 3(a)(5) and 3(a)(44) of the Exchange Act such that market participants that “take on significant liquidity-providing roles” are included in the statutory definition of “dealer” and “government securities dealer.” However, the final rules will exclude any person that has total assets of less than $50 million, or investment companies registered under the Investment Company Act of 1940, central banks, sovereign entities, and international financial institutions. The final rules will go into effect 60 days following Federal Register publication, and the compliance date will be one year after the effective date of the final rules.