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SEC awards whistleblowers more than $104 million
On August 4, the SEC announced awards totaling more than $104 million to seven whistleblowers whose information and assistance led to a successful SEC enforcement action, as well as two related actions brought by another agency. According to the Press Release, “the seven whistleblowers were composed of two sets of joint claimants and three single claimants, and each provided information that either prompted the opening of or significantly contributed to an SEC investigation.” The seven claimants contributed assistance including providing documentation to support the allegations, identifying potential witnesses, and sitting for interviews. According to the redacted order, Claimants 1 and 2, both foreign nationals, provided information that in part caused the SEC to open the investigation that led to the charges. The whistleblowers also provided substantial ongoing assistance, including providing multiple written submissions, communications, and interviews, the SEC said, finding also that the whistleblower satisfied the requirements under Rules 21-F-3(b) for related actions awards as the related successful enforcement actions were partly based on the same information provided to the Commission. However, in the same order, the SEC affirmed the denial of two other claimants’ award claims after determining, among other things, that the individuals did not submit information leading to the successful enforcement of the covered action.
SEC charges companies, founder for operating an unregistered exchange
On July 31, the SEC filed a complaint in the U.S. District Court for the Eastern District of New York against three cryptocurrency trading platforms and their founder for allegedly conducting unregistered offerings of crypto asset securities that raised more than $1 billion in crypto assets from investors. The SEC also claimed that the founder and one of the platforms fraudulently misappropriated at least $12 million of offering proceeds to purchase luxury goods including sports cars, watches, and diamonds.
According to the SEC’s complaint, as early as 2018 the defendants began marketing what they claimed to be the first high-yield “blockchain certificate of deposit,” and promoting tokens as an investment designed to make people “rich.” It is further alleged that from at least December 2019 through November 2020, the defendants offered and sold tokens in an unregistered offering and collected more than 2.3 million cryptocurrency units through “recycling” transactions that enabled the defendants to surreptitiously gain control of more tokens.
The complaint seeks injunctive relief, disgorgement of ill-gotten gains plus prejudgment interest, penalties, and other equitable relief.
ETF, founder to pay SEC $4.4M for misleading trustees
On August 1, the SEC settled for $4.4 million with an investment adviser and entities he founded (collectively, the “respondents”) on charges that they breached both their duty of care and duty of loyalty to their client, an exchange traded fund (ETF), in violation of the Investment Advisers Act and the Investment Company Act. As alleged in the settlement, the respondents needed funds to settle a substantial private litigation judgment, and to secure the funds to do so, committed to keep the client’s security lending business with the company providing the financing to the respondents. However, there were better offers on better terms from other securities lenders that could have provided millions more in revenue to the client, and the respondents did not disclose this information to their client or to the client’s independent trustees. In addition to the civil penalties, without admitting or denying the findings, respondents agreed to various non-monetary penalties, including cease-and-desist orders, an associational bar for the investment adviser and censures for the respondent entities.
SEC proposes rules for addressing conflicts of interest raised by predictive data analytics
On July 26, the SEC issued proposed rules under the Securities Exchange Act of 1924 and the Investment Advisors Act of 1940 to address certain conflicts of interest associated with the use of predictive data analytics, including artificial intelligence (AI) and similar technologies, “that optimize for, predict, guide, forecast, or direct investment-related behaviors or outcomes.” The SEC explained that broker-dealers and investment advisors (collectively, “firms”) are increasingly using AI to improve efficiency and returns but cautioned that, due to the scalability of these technologies and the potential for firms to quickly reach a large audience, any resulting conflicts of interest could result in harm to investors that is more pronounced and on a broader scale than previously possible.
Based on existing legal standards, the proposed rules generally would require a firm to identify and eliminate, or neutralize, the effects of conflicts of interest that result in the firm’s (or associated persons) interests being placed ahead of investors’ interests. Firms, however, would be permitted to employ tools that they believe would address such risks and that are specific to the particular technology being used. Firms that use covered technology for investor interactions would also be required to have written policies and procedures in place to ensure compliance with the proposed rules, the SEC said. These policies and procedures must include a process for evaluating the use of covered technology in investor interactions and addressing any conflicts of interest that may arise. Firms must also maintain books and records related to these requirements. Comments on the proposed rules are due 60 days after publication in the Federal Register.
SEC adopts breach-reporting rules, establishes requirements for cybersecurity risk management
On July 26, a divided SEC adopted a final rule outlining disclosure requirements for publicly traded companies in the event of a material cybersecurity incident. The final rule (proposed last year and covered by InfoBytes here) also requires companies to periodically disclose their cybersecurity risk management processes and establishes requirements for how cybersecurity disclosures must be presented. The final rule requires that material cybersecurity incidents be disclosed within four days from the time a company determines the incident was material (a disclosure may be delayed should the U.S. attorney general notify the SEC in writing that immediate disclosure poses a substantial risk to national security or public safety). Companies must also identify material aspects of the incident’s nature, scope, and timing, as well as its impact or reasonably likely impact on the company, and are required to describe their board’s and management’s oversight of risks from cybersecurity threats and previous cybersecurity incidents. These disclosures will be required in a company’s annual report. The final rule will also mandate foreign private issuers to provide comparable disclosures on forms related to material cybersecurity incidents and risk management, strategy, and governance.
The final rule is effective 30 days following publication of the adopting release in the Federal Register. The SEC noted that incident-specific disclosures will be required in Forms 8-K and 6-K beginning either 90 days after the final rule’s publication in the Federal Register or on December 18, whichever is later, though smaller reporting companies are provided an extra 180 days before they must begin providing such disclosures. Annual disclosures on cyber risk management, strategy, and governance will be required in Form 10-K and Form 20-F reports starting with annual reports for fiscal years ending on or after December 15. In terms of structured data requirements, all companies must tag disclosures in the required format beginning one year after initial compliance with the related disclosure requirement.
SEC Chair Gary Gensler commented that, in response to public comments received on the proposed rule, the final rule “streamlines required disclosures for both periodic and incident reporting” and requires companies “to disclose only an incident’s material impacts, nature, scope, and timing, whereas the proposal would have required additional details, not explicitly limited by materiality.”
In voting against the final rule, Commissioner Hester M. Pierce raised concerns that the final rule’s compliance timelines are overly aggressive even for large companies and that the short incident disclosure period could potentially mislead otherwise uninformed investors and “lead to disclosures that are ‘tentative and unclear, resulting in false positives and mispricing in the market.’” The final rule allows a company to update its incident disclosure with new information in subsequent reports that was unavailable at first and could impact investors who may suffer a loss due to the mispricing of the company’s securities following the initial reporting, Pierce said. She also criticized the risk to national security or public safety exemption as being overly narrow. Commissioner Mark Uyeda also opposed the adoption, writing that “[n]o other Form 8-K event requires such broad forward-looking disclosure that needs to be constantly assessed for a potential amendment.” Uyeda also questioned whether “[p]remature public disclosure of a cybersecurity incident at one company could result in uncertainty of vulnerabilities at other companies, especially if it involves a commonly used technology provider, [thus] resulting in widespread panic in the market and financial contagion.”
Gensler highlights challenges of AI-based models
On July 17, SEC Chair Gary Gensler spoke before the National Press Club, where he discussed opportunities and challenges stemming from the use of artificial intelligence (AI)-based models. While Gensler acknowledged that AI has the potential to promote greater financial inclusion and enhance user experience, he warned that there are also challenges associated with AI advancements that need to be considered at both the individual and broader economic levels. At the individual (micro) level, Gensler explained that AI’s predictive capabilities allow for personalized communication, product offerings, and pricing. However, this individualized approach (also known as “narrowcasting”) also raises questions about how individuals will respond to tailored messages and offers, he said, pointing out that when AI models are used to make important decisions such as job selection, loan approvals, credit decisions, and healthcare allocation, issues related to explainability, bias, and robustness become a concern. Gensler elaborated that AI models often produce unexplainable decisions and outcomes due to their nonlinear and hyper-dimensional nature. Furthermore, AI may also make it more difficult to ensure fairness and can inadvertently perpetuate biases present in historical data or use latent features that act as proxies for protected characteristics, Gensler said, adding that “the challenges of explainability may mask underlying systemic racism and bias in AI predictive models.”
Gensler explained that these data analytics challenges are not new and that in the late 1960s and early 1970s, the Fair Housing Act, FCRA, and ECOA were, in part, driven by similar issues. He warned advisers and brokers that as they incorporate these technologies into their services, they must ensure that when offering advice and recommendations (whether or not based on AI) they consider the best interests of their clients and retail customers and not place their interests ahead of investors’ interests.
Agencies charge crypto platform and former executives
On July 13, the FTC announced a proposed settlement to resolve allegations that a crypto platform engaged in unfair and deceptive acts or practices in violation of the FTC Act. The FTC also alleges that the defendants violated the Gramm-Leach-Bliley Act by acquiring customer information from a financial institution regarding someone else by providing false or misleading statements. The New Jersey-based crypto company offers various cryptocurrency products and services to customers, such as interest-bearing accounts, personal loans backed by cryptocurrency deposits, and a cryptocurrency exchange. On the heels of its bankruptcy filing in July 2022, the FTC lodged a complaint in federal court alleging that three former executives falsely promised that deposits would be “safer” than bank deposits and always available for withdrawal, and that the platform posed “no risk” or “minimal risk.”
The proposed stipulated order imposes a $4.72 million judgment against the corporate defendants, which is suspended based on their financial condition. The order also bans the corporate defendants from, among other things, “advertising, marketing, promoting, offering, or distributing, or assisting in the advertising, marketing, promoting, offering, or distributing of any product or service that can be used to deposit, exchange, invest, or withdraw assets, whether directly or through an intermediary.”
Other agencies also took action against the company and its former CEO on the same day, including the SEC, which alleges the company sold unregistered crypto asset securities in one of its program offerings. The SEC’s complaint further alleges the company made false and misleading statements and engaged in market manipulation. Additionally, the DOJ unsealed an indictment charging the former CEO and the company’s former chief revenue officer with conspiracy, securities fraud, market manipulation, and wire fraud for illicitly manipulating the price of the company’s token. Additionally, the CFTC filed a civil complaint charging the company and former CEO with fraud and material misrepresentations in connection with the operation of the company’s digital asset-based finance platform. The CFTC alleges the company operated as an unregistered commodity pool operator (CPO), and its former CEO operated as an unregistered associated person of a CPO. The complaint also accuses the former CEO of violating the Commodity Exchange Act and CFTC regulations, among other things. According to the press release, the company agreed to resolve the complaint, while the former CEO is continuing litigation.
SEC awards whistleblower $9 million
On July 12, the SEC announced a whistleblower award totaling approximately $9 million to a claimant who provided information and assistance that led to a successful enforcement action. According to the redacted order, the claimant “repeatedly raised concerns internally” and “provided highly significant and detailed information that alerted enforcement staff to the underlying conduct, prompting the opening of the investigation.” The claimant then “provided critical and ongoing assistance throughout the investigation, including meeting with [e]nforcement staff multiple times.” As a result of that information and assistance, “millions of dollars have been returned to harmed investors.”
District Court orders crypto platform and its CEO to disgorge and pay penalty in SEC case
On July 5, the U.S. District Court for the Southern District of New York ordered a crypto platform and its CEO to each pay a civil money penalty of $141,410, as well as to jointly pay disgorgement in the same amount, in a case brought by the SEC. The SEC filed a complaint in February 2021 alleging that the defendants violated the registration provisions of the Securities Act of 1933 in connection with their offer and sale of digital asset securities. According to the SEC, the defendants sold digital asset securities to hundreds of investors, including investors based in the United States, but failed to file a registration statement for the offering. The complaint further charged the defendants with denying prospective investors the material information required for such an offering to the public. The SEC alleged that the defendants raised at least $141,410 through their offering.
Neither defendant responded to the complaint, and the court accordingly entered an order of default against the defendants, permanently enjoining the defendants from violating the registration provisions of the Securities Act. The court also referred the case to a magistrate judge to make a recommendation regarding disgorgement and penalties. The magistrate judge concluded—and the court agreed—that there were sufficient facts supporting the SEC’s allegations against the defendants and that disgorgement and civil monetary penalties were appropriate remedies. In addition to the civil monetary penalty of $141,410 per defendant, the court held the defendants jointly and severally liable for disgorgement of $141,410 plus pre-judgment interest.
DFPI orders crypto platform to halt operations
On June 27, the California Department of Financial Protection and Innovation (DFPI) issued a desist and refrain order against a digital asset trading platform and two of its promoters for allegedly selling unqualified securities and making material misrepresentations and omissions to investors, a violation of California securities laws.
DFPI alleges that the platform leveraged a “multi-level marketing scheme” to award its promoters who sold unqualified securities to investors in the form of investment contracts and received cash investments ranging from $5,000-$20,000. Allegations also include that the platform “purported” to provide educational classes designed to empower the Latino community with respect to crypto asset trading. The order details that through these efforts to garner more investors, “misrepresentations of material fact [were made] to investors and potential investors, namely that investors would receive a return on their initial investment every three months.” Investors have allegedly not received any return on their initial investment. The commissioner found that the platform “fail[ed] to provide the promised returns on their purported investments” and that “[d]espite multiple requests, investors have not had their funds returned.”
The order requires the platform to desist and refrain from the offer and sale of securities and stop making misrepresentations about returns in California.