Securities Litigation Insider is a source of insights, information, and analysis on a wide range of topics relevant to securities litigation, with a focus on notable developments in the securities space, including U.S. Securities and Exchange Commission (SEC) enforcement, rulemaking, and other regulatory trends and development. Patterson Belknap’s Securities Litigation team has extensive experience handling highly complex lawsuits and internal investigations. Our blog team includes experienced litigators and corporate advisors, and is led by a former senior counsel for the SEC Division of Enforcement with extensive experience investigating and litigating securities laws violations, providing a unique, interdisciplinary perspective on securities law.
Recently, the Securities and Exchange Commission (“SEC”) proposed a new rule concerning the disclosure of “certain climate-related information in their registration statements and annual reports” as well as “certain climate-related financial metrics . . . in a registrant’s audited financial statements.”[i] If the proposed rule is adopted, it would provide investors with relatively standardized disclosures on climate-related information.
Non-fungible tokens (NFTs) are the latest trend to sweep markets from the art industry to professional sports leagues. These digital assets have existed for several years but have achieved explosive popularity only recently. In fact, the global market for NFTs reportedly hit over $40 billion in 2021. Despite this, the legal frameworks governing NFTs—which could significantly impact the risks and rewards of buying or selling NFTs—are still catching up. In this series of articles, we will explore the developing legal landscape surrounding NFTs and the increased legal and regulatory scrutiny that lawyers should consider.
To continue reading Gregory Baker, Anne-Laure Alléhaut and Catherine J. Djang's New York Law Journal article on this topic, please click here.
The full-scale invasion of Ukraine by a revanchist Russia continues to dominate headlines as the war enters its second month. While the sometimes-terrible choices facing those living in the conflict zone are unparalleled, investors around the world also have choices to make. Among those, ESG funds that are tasked with minimizing investment risks associated with environmental, social and governance issues find themselves with difficult – and sometimes contradictory – dilemmas.
On June 29, 2021, a major cryptocurrency exchange (the “Crypto Exchange”) announced a new program called “Lend” in which it proposed offering customers a 4% interest rate on cryptocurrency tied to USD.[i] But on September 7, 2021, the Crypto Exchange announced that the U.S. Securities and Exchange Commission (the “SEC”) had issued a Wells notice, a formal notice that the agency was planning to sue them for offering the program.[ii] While the Crypto Exchange took the position that it was unclear why the SEC had issued this notice, it was evident from public comments that the SEC had been contemplating whether investment cryptocurrency programs should be classified as securities.[iii] On September 20, 2022, the Crypto Exchange announced that it was dropping its Lend program.
[i] Update as of 5pm ET, Friday, September 17th: we are not launching the USCD APY program announced below, Coinbase (June 29, 2021), https://blog.coinbase.com/sign-up-to-earn-4-apy-on-usd-coin-with-coinbase-cdad79e5f5eb.
[ii] Paul Grewal, The SEC has told us it wants to sue us over Lend. We don’t know why., Coinbase (Sept. 7, 2021), https://blog.coinbase.com/the-sec-has-told-us-it-wants-to-sue-us-over-lend-we-have-no-idea-why-a3a1b6507009. A Wells notice is a letter that the SEC sends to inform the recipient that the agency is planning to bring an enforcement action against them. The Wells notice sets out the charges that the SEC intends to bring against the recipient and offers the recipient a chance to submit a written statement to the ultimate decision maker. Wells Notice, Legal Information Institute, https://www.law.cornell.edu/wex/wells_notice (last visited Mar. 7, 2022).
[iii] Gary Gensler, Remarks Before the Aspen Security Forum, U.S. Sec. & Exch. Comm’n Commission (Aug. 3, 2021), https://www.sec.gov/news/public-statement/gensler-aspen-security-forum-2021-08-03.
Securities class action case filings plunged in 2021 compared to the number of similar cases filed in 2020. According to Cornerstone Research’s 2021 Year in Review report, there were 218 securities class action cases filed in federal and state courts in 2021, which represents a 35% decline from the 333 securities class action cases filed in 2020. However, the 218 filings in 2021 is approximately 5% less than the average securities class action filings for the years from 1997 to 2020.
A California Court recently allowed the Securities and Exchange Commission (the “SEC” or “Commission”) to proceed with its first insider trading prosecution based on a theory of “shadow trading.”[1] On January 14, 2022, Judge William H. Orrick, sitting in the District Court for the Northern District of California, issued a ruling denying defendant’s motion to dismiss the SEC’s civil action, which alleges a single violation of Section 10(b) of the Securities and Exchange Act of 1934.[2]
A key question for any company considering the issuance of cryptocurrency is whether that digital asset will be treated by regulators as a security, like BP stock, or a commodity, like Bitcoin.[i] In 2019, the Securities and Exchange Commission (the “SEC” or the “Commission”) provided guidance on this issue in a “Framework for ‘Investment Contract’ Analysis of Digital Assets” (“Framework”).[ii] The Framework lists characteristics that make it more or less likely that the SEC will deem a given cryptocurrency to be a security. The SEC’s enforcement action against Ripple Labs (“Ripple”) for the sale of a digital asset named “XRP,” filed in December 2020 and currently pending before the U.S. District Court, Southern District of New York, illustrates the manner in which the SEC has applied the Framework, and serves as an early test of whether courts agree with the SEC’s broad view of the investment contract analysis with respect to crypto assets.
[i] U.S. Commodity Futures Trading Comm’n, Bitcoin Basics, https://www.cftc.gov/sites/default/files/idc/groups/public/%40customerprotection/documents/file/oceo_bitcoinbasics0218.pdf (last visited Jan. 25, 2022).
In 2021, there were 613 initial public offerings (“IPOs”) of Special Purpose Acquisition Companies (“SPACs”), after 248 SPACs went public in 2020 and 59 in 2019.[1] Prior to 2021, there had not been more than 500 IPOs of any kind in one year in the U.S. markets since the 1990s.[2] The SPAC explosion has led, inevitably, to litigation; often similar to the squabbles over disclosures, contracts, and failed negotiations that are standard in litigation surrounding IPOs and mergers. However, in a ruling in January, a Delaware Court of Chancery judge cast doubt on whether decisions by SPAC boards of directors to merge with private companies are entitled to the deference of the business judgment rule, which shields directors from liability for their decisions gone wrong.[3]
[3] “Under the business judgment rule, the judgment of a properly functioning board will not be second-guessed and absent an abuse of discretion, that judgment will be respected by the courts.” In re KKR Fin. Holdings LLC S'holder Litig., 101 A.3d 980, 989 (Del. Ch. 2014) aff’d Corwin v. KKR Fin. Holdings LLC, 125 A.3d 304, 305 (Del. 2015) (quotations and alterations adopted).
On November 18, 2021, the Securities and Exchange Commission (the “Commission”) released its Enforcement Results for fiscal year (“FY”) 2021, which spans from October 1, 2020 to September 30, 2021. The Commission published its results in an abbreviated press-release format with an accompanying addendum, foregoing the more formal annual report format it used in prior years. Gurbir S. Grewal, who was appointed Director of the Commission’s Division of Enforcement (the “Division”) in July 2021, emphasized a commitment to innovation. Grewal stated the Division brought “a number of critically important and first-of-their-kind enforcement actions,” and accomplished “record-breaking achievements” for its whistleblower program. This blog post will review some of the key takeaways, as well as offer predictions for enforcement trends in FY 2022.
When it comes to settlements with the SEC’s Division of Enforcement (“Enforcement Division”), a question respondents often ask is how the SEC arrives at a given penalty amount? This blog post will discuss the SEC’s current approach to determining penalty amounts, as recently articulated by Gurbir Grewal, the Director of the SEC’s Enforcement Division, and also considers how the SEC’s recent settlement with Global Infrastructure Management, LLC (“Global”) may be indicative of the SEC’s new approach to penalties.
Last month, we wrote about three actions taken by the SEC signaling a renewed interest in cybersecurity disclosure enforcement. In keeping with this theme, the SEC announced a number of significant new cybersecurity actions just last week. On August 30, the SEC disclosed enforcement actions against eight brokerage firms for failing to implement adequate cybersecurity policies and procedures, as required by the SEC’s “Safeguards Rule.” All eight firms agreed to settle with the SEC and will collectively pay hundreds of thousands of dollars in fines. These most recent actions underscore that companies should be mindful of whether their cybersecurity policies and procedures comply with SEC requirements and expectations.
The SEC is ramping up its cybersecurity disclosure enforcement. While the agency had made significant efforts relating to cybersecurity disclosure previously, there has been surprisingly little SEC activity in this area since 2018—even though the last three years has seen an explosion of high-profile data security incidents. That changed in June of this year, however, with the SEC taking three major actions that demonstrate a renewed interest in such enforcement. First, the SEC announced its intention to issue a new rule regulating cybersecurity risk governance disclosure. Second, it announced its first charges and settlement for cybersecurity disclosure violations since 2018. And third, it revealed a significant cybersecurity disclosure investigation relating to the recent SolarWinds supply-chain attack. In light of these developments, now would be a good time for issuers and registered entities to review the SEC’s expectations for cybersecurity disclosure, and implement any necessary changes to their respective policies and procedures, and disclosure practices.
