SEC to Require More Admissions of Wrongdoing
Firms who admit wrongdoing send a signal to others to stamp out misconduct, the SEC says of reviving the Obama-era policy.
SEC Enforcement Director Gurbir Grewal said Wednesday that the agency will return to an Obama-era environment of requiring firms, in certain circumstances, to admit wrongdoing.
“When it comes to accountability, few things rival the magnitude of wrongdoers admitting that they broke the law, and so, in an era of diminished trust, we will, in appropriate circumstances, be requiring admissions in cases where heightened accountability and acceptance of responsibility are in the public interest,” Grewal said during the Practising Law Institute’s SEC Speaks event.
“Admissions, given their attention-getting nature, also serve as a clarion call to other market participants to stamp out and self-report the misconduct to the extent it is occurring in their firm,” Grewal said.
Former SEC Chairwoman Mary Jo White instituted the “admit wrongdoing” policy in 2016.
Jim Lundy, a partner at Faegre Drinker’s Chicago office, told ThinkAdvisor Thursday in an email that when the SEC implemented this policy previously under the Obama administration, “it was applied relatively selectively.”
That said, “this is an aggressive policy to implement, but it is consistent with the increasingly aggressive messaging that has been coming from SEC Leadership since Chair Gensler took over.”
Added Lundy: “Due to the various collateral consequences of making admissions in SEC settlements, parties confronted with this policy will need to give much stronger strategic consideration to litigating against the SEC to fight the charges.”
Ken Herzinger, a former SEC attorney and now partner at Paul Hastings, said that “ending the ‘no admit, no deny’ for certain matters might suggest a more stringent SEC,” but the move could backfire.
“If the SEC insists on an admission of wrongdoing it will force more defendants to go to trial, because such an admission would cause significant reputational damage to companies and individuals and have severe collateral consequences under the SEC’s bad-actor rules and in follow-on litigation.”
More trials, Herzinger said, could result in fewer successful SEC actions. “This will lead to an increased burden on the already taxed SEC staff and increase the time it takes to resolve investigations – the original impetus for the ‘no admit, no deny’ policy,” he said.
Officer and director bars, likewise, Grewal said during his remarks, “are a critical tool” in the SEC’s efforts.
“If there is egregious conduct and a chance the person could have the opportunity to serve at the highest levels of a public company, we may well seek an officer and director bar to keep that person from being in a position to harm investors again,” Grewal said.