Compliance and Regulatory Alerts | 11-23-21
SEC FY2021 Enforcement Division Recap: Regulators Tout Expanded Scope and Impacts, Including “First-of-Their-Kind” Prosecutions
In a tally of enforcement actions taken in Fiscal Year 2021 (which ended September 30th), the SEC reported that its efforts “spanned the entire securities waterfront” to address emerging threats. The agency touted many “first-of-their kind enforcement actions” and “record-breaking achievements” and gave particular credit to the agency’s whistleblower program, which awarded $564 million to 108 whistleblowers. (The SEC’s attention to whistleblowers dovetailed with a newly issued report to Congress highlighting a 76 percent increase in the number of tips it received [12,200] during the past fiscal year.)
Among the emerging areas of prosecutorial interest, the SEC highlighted enforcement actions involving crypto, decentralized finance, SPACs, the “dark web,” Form CRS compliance, and unregistered electronic trading. The agency also highlighted (and linked to) “impactful” prosecutions against a host of entities for (i) reporting, disclosure, and accounting control violations, (ii) misrepresentations concerning financial condition, compensation, and retirement rollover recommendations, (iii) misappropriations, (iv) conflicts of interest and other breaches of duty to investors, (v) insider trading, and (vi) deficient cybersecurity controls, among others.
In an addendum to its announcement, the SEC offered a summary chart of enforcement actions by classification. The summary showed that of its 434 new civil and “stand-alone” actions (not including those taken to address delinquent filings or “follow on” administrative actions), 33% related to securities offerings, 28% were taken against investment advisers or investment companies, 12% were for issuer reporting and/or auditing or accounting violations, and 8% concerned broker-dealer violations. The remainder included actions for insider trading (6%), market manipulation (6%), public finance abuse (3%), foreign corrupt practices (1%) and miscellaneous (2%). The data also showed an increase in the aggregate dollar amount of penalties imposed ($1,456 million in FY2021 vs. $1,091 million in FY2020) but a drop in disgorgement ($2,396 million in FY 2021 vs. $3,589 million in FY 2020). Further, the figures show a decrease in the aggregate amount of money distributed to harmed investors ($521 million in FY 2021 vs $1,197 million in FY 2019).
This annual recap of the Enforcement Division’s efforts serves many SEC internal and external communications purposes, not the least of which is to convey to Congress and the markets the expanding scope of the SEC’s reach and the aggressive commitment by SEC Chair Gensler and Director Grewal to use their authority to broadly enforce the securities laws. The detailed list of linked cases contained in the announcement should remind everyone of this message as we move into 2022.