In March 2022, as it does every year, the Securities and Exchange Commission’s Division of Examinations (EXAMS) published its Examination Priorities, designed to highlight areas that the Agency views to be worthy of heightened scrutiny. Among these, EXAMS included “Emerging Technologies and Crypto-Assets,” noting that the SEC had observed “a proliferation of the offer, sale, and trading of crypto-assets.”
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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.
Greg Baker Quoted in Crowdfund Insider Concerning the SEC’s Recent Enforcement Action Against Kim Kardashian
Partner Greg Baker was quoted in an article from Crowdfund Insider relating to the recent SEC enforcement action against celebrity/influencer Kim Kardashian.
Scheme Liability Under Rule 10b-5 and Section 17(a) Still Requires Something “More” than Mere Misstatements: Analysis of the Second Circuit’s Opinion in SEC v. Rio Tinto
On July 15, 2022, the United States Court of Appeals for the Second Circuit affirmed the dismissal by the United States District Court for the Southern District of New York of a Securities and Exchange Commission (“SEC”) enforcement action alleging that Rio Tinto plc, Rio Tinto Limited, and its executive officers had engaged in securities fraud. In so doing, the Second Circuit held that a 2019 Supreme Court decision, Lorenzo v. SEC, did not change the scope of scheme liability under Rule 10b-5 and Section 17(a). That is, merely making a materially misleading statement, without something more, cannot constitute scheme liability.
First NFT-based Insider Trading Case Tees Up Important Questions for Digital Asset Fraud Prosecutions
This summer, the U.S. Attorney’s Office for the Southern District of New York broke new ground in its oversight of fraud involving digital assets when it brought charges against Nathaniel Chastain related to an insider trading scheme involving non-fungible tokens (“NFTs”). NFTs are digital assets that are stored on a blockchain, which is a digital, decentralized transaction ledger. Each NFT is generally associated with some digital object, such as a piece of digital artwork or meme. An NFT provides proof of ownership of the digital object
Grayscale Investments Contends that the Securities and Exchange Commission Erred in Rejecting Listing of Bitcoin Trust
On June 29, 2022, the Securities and Exchange Commission (the “Commission”) rejected a proposed rule change submitted by NYSE Arca, Inc. (the “Exchange”) that would have allowed it to list and trade shares of Grayscale Bitcoin Trust (“GBTC”), the largest fund in the world devoted to holding Bitcoin. Grayscale Investments, LLC (“Grayscale”), the sponsor of GBTC, wasted no time in petitioning the D.C. Circuit Court of Appeals to review the Commission’s order—it sued the same day.
 See generally Securities and Exchange Commission, Release No. 34-95180; File No. SR-NYSEArca-2021-90, Order Disapproving a Proposed Rule Change, as Modified by Amendment No. 1, to List and Trade Shares of Grayscale Bitcoin Trust under NYSE Arca Rule 8.201-E (Commodity-Based Trust Shares), June 29, 2022 (“Disapproval Order”); see also Joe Light, Grayscale Offers a Giant Bitcoin Discount. It’s No Slam Dunk,” Barron’s July 2, 2022 (“Light”) (describing Grayscale Bitcoin trust as “a closed-end trust exclusively focused on holding [Bitcoin]” and “the largest such fund in the world”).
Each year, the U.S. Securities and Exchange Commission (SEC) publishes its enforcement priorities – a reminder that, although the Division of Examinations (EXAMS) remains committed to monitoring compliance with (and penalizing violations of) all regulations, the Agency recognizes that risks to the investing public are not uniform over time. As the SEC noted in its 2022 Examination Priorities Report, the Agency has a “desire to be transparent about the heightened risks that [it] see[s].”
 Div. of Examinations, 2022 Examination Priorities, U.S. Secs. & Exch’g Comm’n (Mar. 30, 2022) at 2.
A Brief Overview of the Proposed Responsible Financial Innovation Act by U.S. Senators Kirsten Gillibrand and Cynthia Lummis
On June 6, 2022, U.S. Senator Kirsten Gillibrand of New York and U.S. Senator Cynthia Lummis of Wyoming proposed federal regulation of digital assets in the Responsible Financial Innovation Act (“RFIA”). The RFIA provides a definition of digital assets and assigns regulatory authority over various types of digital assets to the Securities Exchange Commission (“SEC”) and the Commodity Futures Trading Commission (“CFTC”). This post will provide an overview of the RFIA’s proposed treatment of digital assets and the political implications of the RFIA.
 The Responsible Financial Innovation Act, S.4356, 117th Congress (2022), available at https://www.gillibrand.senate.gov/imo/media/doc/Lummis-Gillibrand%20Responsible%20Financial%20Innovation%20Act%20%5bFinal%5d.pdf [hereinafter “RFIA”].
On April 21, 2022, the United States Court of Appeals for the Fourth Circuit affirmed the dismissal by the United States District Court for the District of Maryland of allegations that Marriott International had violated federal securities laws by omitting from its public filings material information pertaining to cybersecurity vulnerabilities. This blog post examines the facts underlying the decision and the holding’s implications for comparable securities fraud claims.
 In re Marriott Int’l, Inc., 31 F.4th 898, 901 (4th Cir. 2022).
SEC, CFTC, and SDNY Charge Archegos Capital Management and Its Owner and Executives with Fraud: Implications for Family Offices
On April 27, 2022, the SEC filed suit against family office Archegos Capital Management, LP, as well as its Founder/Owner Sung Kook (Bill) Hwang, CFO Patrick Halligan, Head Trader William Tomita, and Chief Risk Officer Scott Becker with orchestrating a fraudulent scheme to inflate the value of its assets under management, which involved both false and misleading statements to security-based swap (“SBS”) counterparties and prime brokers, as well as manipulative trading practices.
A pair of recent legal developments cast doubt on the long term ability of the Securities and Exchange Commission (“SEC”) to try contested actions before the agency’s in-house administrative law judges (“ALJ”). First, the Supreme Court accepted a petition to hear the matter of SEC v. Cochran, Petition No. 21-1239, which concerns whether the SEC’s ALJs are unconstitutionally protected from removal. Second, the U.S. Court of Appeals for the Fifth Circuit issued an opinion holding that (1) a respondent in an SEC administrative proceeding was deprived of his right to a jury trial; (2) that Congress unconstitutionally delegated legislative powers to the SEC by failing to provide it with an intelligible principle by which to exercise its delegated power, and (3) that the administrative law judges were unconstitutionally protected from removal. These developments could have long term implications not only for the SEC, but for all federal administrative agencies.
On September 14, 2021, the SEC announced it had reached a settlement with “a leading alternative data provider,” App Annie, and its co-founder and CEO, Bertrand Schmitt, to settle securities fraud charges related to their alleged deceptive practices and material misrepresentations regarding App Annie’s alternative data. This was the SEC’s first—but likely not last—enforcement action against an alternative data provider. In this post, we summarize the SEC’s findings regarding App Annie and Schmitt and consider the implications of the SEC’s investigation for executives, investors, and litigants.
 Press Release, SEC¸ SEC Charges App Annie and its Founder with Securities Fraud, (Sept. 14, 2021). App Annie and Schmitt neither admitted nor denied the SEC’s findings and App Annie has since rebranded as data.ai.
 See id.
The SEC Proposes a Revised Definition of “Dealer” Intended to Capture, Among Others, High Frequency Traders a/k/a “Flash Boys”
On March 28, 2022, the Securities and Exchange Commission announced proposed changes to Exchange Act Rules that would expand the scope of which market participants the SEC considers to be a “dealer” or “government securities dealer.” Most investors would notice no change in their portfolio management practices. But for certain high-frequency trading operations, the new rules might lead to substantial changes.
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.
NFTs, or “non-fungible tokens,” are in the headlines. Artists, politicians, and celebrities, along with everyday internet users, have been selling and trading various forms of the digital asset, sometimes earning millions of dollars from the sales. But how do NFTs fit into the current securities regulation framework? And what are the legal implications of participating in this new and volatile market? This blog post explores these issues and analyzes ongoing NFT-related litigation.
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.
In 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, which required the SEC “to prescribe rules to make certain short sale data publicly available no less than monthly.” On February 25, 2022, the SEC acted to implement that directive by unanimously proposing Proposed Rule 13f-2, its plan to “broaden the scope of short-sale released data available to the investing public and to regulators” by requiring certain institutional investment managers to disclose substantial short positions to the SEC for its subsequent disclosure to the public in aggregated form.
In this post, we explain the basics of a short sale, summarize the SEC’s Proposed Rule 13f-2, and discuss the potential benefits and costs of this rule.
 Short Position and Short Activity Reporting by Institutional Investment Managers, (Release No. 34-94313; File No. S7-08-22), Feb. 25, 2022 (“Proposed Rule”) at 7–8.
 See Chair Gary Gensler, Statement on Rules to Increase Transparency of Short Sale Activity, Feb. 25, 2022 (“Statement of Chair Gensler”).
 On the same day it announced its proposed Rule 13f-2, the SEC also proposed amendments to the Consolidated Audit Trail and to Regulation SHO. Id. These proposals are beyond the scope of this post.
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.
The U.S. Supreme Court Clarifies the Standards and Proof Required to Meet the Reliance Element of a Securities Fraud Claim
On June 21, 2021, the Supreme Court issued an opinion by Justice Barrett on the reliance element of a securities fraud claim. In a unanimous portion of her opinion (the “Decision”), Justice Barrett held that courts may consider the generic nature of an alleged misrepresentation in determining whether the misrepresentation impacted share price at the class certification stage. Of potentially greater significance, Justice Barrett also held, over a dissent by Justice Gorsuch (joined by Justices Thomas and Alito), that defendants bear the burden of persuasion by a preponderance of the evidence that an alleged misrepresentation has not had an impact on the price of a security. This second holding will facilitate the formation of classes under Rule 23 of the Federal Rules of Civil Procedure by making it at least marginally easier for putative classes to demonstrate reliance through evidence common to the class, which in turn will help the class satisfy Rule 23’s predominance requirement.
In this post, we will summarize the Decision, discuss the caselaw interpreting it to date, and offer concluding thoughts on its potential impact on the practice of securities litigation.
 Goldman Sachs Group v. Arkansas Teacher Retirement System, 141 S. Ct. 1951 (2021).
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.” 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.
A Brief Overview of the SEC’s Guidance on Cryptocurrencies in the Context of the Commission’s Enforcement Action Against Ripple Labs
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).
Delaware Court Holds that SPAC Sponsor’s “Founder Shares” Created a Conflict of Interest with Public Stockholders
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. 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. 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.
 “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 summer, Representative Alexandria Ocasio-Cortez (D-NY) introduced bill H.R. 4620 to limit the exemption from registration requirements applicable to certain family offices under the Investment Advisers Act of 1940 (the “Advisers Act”). If the bill becomes law, among other things, a family office with $750,000,000 or more in assets under management will no longer be exempt from registration under the Advisers Act.
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.