Category: Securities Law

SEC’s Office of Compliance Inspections and Examinations Releases 2019 Examination Priorities

On Dec. 20, 2018, the Office of Compliance Inspections and Examinations (OCIE) of the U.S. Securities and Exchange Commission (SEC) issued its annual Examination Priorities for 2019 (Exam Priorities), which is available for download here. The Exam Priorities focus around six thematic areas: (1) Retail Investors, including seniors and those saving for retirement; (2) Registrants responsible for critical market infrastructure; (3) FINRA and MSRB; (4) Digital Assets; (5) Cybersecurity; and (6) Anti-Money Laundering (AML) Programs.

As in the past, OCIE notes that their priorities are not exhaustive. The scope of any examination is determined through a risk-based approach that includes analysis of the registrant’s operations and products offered. For example, OCIE typically examines the disclo­sure of services, fees, expenses, conflicts of interest for investment advisers, and trading and execution quality issues for broker-dealers. OCIE is continually evaluating changes in market conditions, industry practices, and investor preferences to assess risks to both investors and the markets.

In connection with OCIE’s priority to protect retail investors, OCIE reviews retail fees and expenses paid by investors, conflicts of interest of industry personnel, treatment of senior investors and the advertising and suitability of retirement products, portfolio management and trading, operations of and the selection of mutual funds and ETFs, procedures of municipal advisors, procedures for broker-dealers entrusted with customer assets, and microcap securities.

OCIE also continues to prioritize critical market registrants impacting the safety and operation of our financial markets, including clearing agencies, entities subject to Regulation SCI, transfer agents, and national securities exchanges.

Finally, OCIE will prioritize examinations of the effectiveness of FINRA and MSRB, which are assigned the responsibility for certain aspects of investor protection. OCIE also will conduct inspections to gather information and evaluate practices affecting digital assets, cybersecurity, and AML programs (especially broker-dealers subject to express obligations and SAR filing obligations).

Overall, OCIE noted that although changes to its priorities may be continual, OCIE’s analytic efforts and examinations remain firmly grounded in its four pillars: promoting compliance, preventing fraud, identifying and monitoring risk, and informing policy.

 

©2019 Greenberg Traurig, LLP. All rights reserved.
This article was written by Arthur Don and Vincent Lewis of Greenberg Traurig, LLP.

Bitcoin Boom: Are Cryptocurrencies Securities Subject to Regulation by the SEC?

Bitcoin was launched in January 2009 as the world’s first cryptocurrency — a digital asset designed to function as a currency that is created and managed by decentralized computers, using encryption techniques instead of a central bank or other government authority.

Until early 2017, Bitcoin barely registered on the average investor’s radar screen. But beginning in 2017, the price of Bitcoin jumped dramatically from $1,290 in early March to $19,500 in mid-December. With the sharp rise in the price of bitcoin, alternative cryptocurrencies (a/k/a “altcoins”) such as Litecoin and Ethereum saw investor interest spike as well. By May 2018, over 1,800 cryptocurrencies had been created.

Cryptocurrency Boom

The cryptocurrency boom (or bubble, as many economists warn) has spawned interest in the blockchain technology that underlies cryptocurrencies. Broadly, blockchain technologies enable the creation of digital ledgers, or lists of records (or “blocks”) that can be used to share information, transfer value, and record transactions in a secure, decentralized environment. For example, several governments are experimenting with blockchain technologies in land registries to reduce the risk of fraud in real property transactions. The ledger of a particular property would contain a verifiable and validated history of transactions concerning the property. Bloomberg reports that law firms are exploring the use of blockchain to generate, execute and authenticate agreements. IMS anticipates that such applications and many others will increase reliance on experts who understand the underlying technologies and can competently testify concerning infringement of any related patents and/or theft or misappropriation of trade secrets.

Of course, as exciting new technologies become commercialized and investors find themselves smitten by the promise of high returns, there is a foreboding a dark side with con artists seeking to capitalize on gullibility. With cryptocurrencies, frauds have frequently taken the form of initial coin offerings (ICO’s) in which entrepreneurs purport to raise capital for a new venture by exchanging digital “tokens” for investor funds.

The Dispute

In one such scam, the U.S. Attorney for the Eastern District of New York secured an indictment for securities fraud against a defendant who had offered tokens in an ICO for REcoin Group, and promised to invest the proceeds in real estate, and then diamonds. U.S. v. Zaslavskiy, 17 CR 00647 (E.D.N.Y). The defendant moved to dismiss the indictment for lack of jurisdiction based on an interesting defense — he argued that the tokens he had peddled were not securities, but currencies, which are exempted by statute from the definition of “securities.” The broad question thus raised was whether a cryptocurrency issued in an allegedly fraudulent ICO qualifies as a security subject to regulation by the SEC.

In a memorandum of law opposing the motion to dismiss, the government argued that while nominally labeled a currency, the tokens were securities in economic substance since the defendant promised purchasers of the tokens that they would receive a return on their investment. In support, the government cited the Supreme Court’s decision SEC v. W.J. Howey Co., 328 U.S. 293 (1946), which defined an “investment contract” as an investment of money in a common enterprise with a reasonable expectation of profits to be derived solely from the entrepreneurial or managerial efforts of others. In analyzing a particular transaction, the Supreme Court stressed that “form [should be] disregarded for substance and the emphasis placed upon economic reality.”

Here, investors in the REcoin ICO pooled their money in a common enterprise through the purchase of tokens with the expectation that REcoin would pay profits based on the defendant’s skill and effort managing real estate or trading diamonds; they were not directly purchasing real estate or diamonds. Thus, the tokens were securities, the government maintained.

The government further argued that the term “currency” is traditionally defined as a “medium of exchange” approved for the payment of debts and purchase of goods. Typically, courts have found that only cash, or a cash substitute qualifies as currency. Here, the tokens sold by defendant could not function as a medium of exchange anywhere in the physical world or any digital realm. Nor did defendant market the tokens as a substitute for cash.

After oral argument, the judge in the case has taken the matter under advisement. In the meantime, in Congressional testimony and public appearances, SEC officials have repeatedly taken the position that where the economic substance of an ICO is the same as a standard securities offering, the tokens qualify as securities. In contrast, where investors purchase tokens because they require the functionality that the token itself provides — for example, to record a deed or execute a contract in a digital ledger that uses blockchain technology — then the token is not a security.

For example, in April 2018 testimony before the Financial Services and General Government Subcommittee of the House Committee on Appropriations, Chairman of the SEC, Jay Clayton distinguished between cryptocurrencies such as Bitcoin, which are a “pure medium of exchange,” and thus not securities, and tokens used to finance new ventures, which are securities. Subsequently, in a June 14, 2018 presentation at a tech conference, the Director of the SEC’s Division of Corporation Finance, William Hinman, reiterated that a cryptocurrency is not a security when it operates principally as a medium of exchange in a network without any central third party upon whose efforts the success of the network depends.

Conclusion

Hinman added, however, that whether a digital token qualifies as a security or not in a specific context can be a close call, and the outcome will depend on a fact-intensive inquiry. He cited a laundry list of factors that the SEC will examine (including the degree of the promoters’ ongoing involvement and control, the expectations and motivations of investors when making their purchases, the independent utility of the token offered for sale, and the breadth and method of the tokens’ distribution), and invited promoters of digital assets and their counsel to help the SEC work through the issues in particular cases before proceeding. IMS’s roster of blockchain experts can assist counsel with navigating these factors and related intellectual property, technical, and regulatory matters with your own clients.

© Copyright 2002-2018 IMS ExpertServices, All Rights Reserved.
This article was written by Joshua Fruchter, IMS ExpertServices

Lack of Presidential Appointment May Invalidate ALJ Decisions

In one of its last opinions of the term, the U.S. Supreme Court held in Lucia v. U.S. Securities and Exchange Commission (SEC) on June 21, 2018, that administrative law judges (ALJs) are officers of the United States, not mere employees, and therefore must be appointed under the Constitution’s Appointments Clause. The decision leaves important questions open for individuals that have faced or are currently facing administrative proceedings before the SEC and other government agencies.

The Constitution’s Appointments Clause requires that “inferior officers” be appointed to their positions by the President, the courts or the Heads of Departments, or agency commissioners. The case at hand, Lucia v. SEC, concerned an administrative proceeding by the SEC against investment broker Raymond Lucia, whom the SEC accused of using misleading marketing practices to deceive prospective clients.

Mr. Lucia appealed the decision of the administrative law judge, who had fined him $300,000 and barred him for life from the investment industry, on the grounds that the presiding judge had been unconstitutionally appointed. The judge that heard Mr. Lucia’s case, along with the four other ALJs at the SEC, was not appointed by Commissioners, but by staff. Shortly after the case was filed, the SEC sought to remedy any potential constitutional violation by having the Commissioners simply appoint the five ALJs. The Court overturned the ruling against Mr. Lucia after the majority concluded that administrative law judges are “officers” of the United States. The Court went on to hold that Mr. Lucia was entitled to have his case heard before a new ALJ, despite the fact that the ALJ that heard his case had subsequently constitutionally appointed.

What remains to be seen is how federal courts will treat appeals by defendants from adverse administrative decisions in cases where an objection was made to the constitutionality of the presiding judge. Did the SEC remedy the issue in these cases completely when the Commissioners appointed the five administrative judges or will new proceedings be required? If so, can the same judge who heard a case before his/her appointment by the Commissioners, then hear the same case a second time? Perhaps most importantly, will litigants succeed in bringing challenges to the constitutionality of presiding ALJs in other governments agencies such as the Social Security Administration, which employs more than 1,400 ALJs who oversee more than 700,000 cases a year? While Lucia involved highly specific facts, the logic of the majority opinion would appear to apply to agencies outside the SEC.

 

© Polsinelli PC, Polsinelli LLP in California
This article was written by Michael M. Besser, Edward F. Novak of Polsinelli PC.

SEC Approves NYSE Proposed Rule Change Requiring a Delay in Release of End-Of-Day Material News

On December 4, 2017, the U.S. Securities and Exchange Commission (“SEC”) approved the New York Stock Exchange’s (the “NYSE”) proposed rule change to amend Section 202.06 of the NYSE Listed Company Manual to prohibit listed companies from releasing material news after the NYSE’s official closing time until the earlier of the publication of such company’s official closing price on the NYSE or five minutes after the official closing time. The new rule means that NYSE listed companies may not release end-of-day material news until 4:05 P.M. EST on most trading days or until the publication of such company’s official closing price, whichever comes first. The one exception to the new rule is that the delay does not apply when a company is publicly disclosing material information following a non-intentional disclosure in order to comply with Regulation FD. Regulation FD mandates that publicly traded companies disclose material nonpublic information to all investors at the same time.

© 2017 Jones Walker LLP
This post was written by Alexandra Clark Layfield of Jones Walker LLP.
Learn more at the National Law Review‘s Finance Page.

MAS Releases “A Guide to Digital Token Offerings”

On 14 November 2017, the Monetary Authority of Singapore (the “MAS”) released  “A Guide to Digital Token Offerings” providing general guidance on the application of the securities laws administered by the MAS in relation to offers or issues of digital tokens in Singapore.

The main consideration is whether the digital token is designed in a way that would make it a product regulated under Singapore’s securities laws i.e. if it behaves like a share, debenture or some other form of security. If a token does not function like a security, then technically, neither will the security laws apply.

In the first case study in the guide, Company A plans to set up a platform to enable sharing and rental of computing power amongst the users of the platform. In order to raise funds to develop this platform, Company A intends to offer and sell digital tokens wherein the token will have utility upon completion. The MAS states that the digital token in this case study would not constitute a security under the Securities and Futures Act (Cap. 289). It appears that this is because other than the right to access the issuer’s platform to rent computing power, the digital token in question did not appear to have any other “rights” or “features” that made it look like a security.

Therefore, if a digital token is structured in a similar way as set out in this case study, then it would presumably not trigger the relevant Singapore securities laws, notwithstanding the fact that the sale of the token may have been used to fund the building of the platform.

The practical issue to consider then is this:- How will a company convince its investors to purchase such digital tokens in the first place, given that they do not appear to offer any type of rights or features that would give potential purchasers of those digital tokens a return on their investment?

Singapore is devoting huge resources to building the FinTech industry and offering many incentives to new entrants in the jurisdiction. Initial Coin Offerings (“ICOs”) structured like the example herein would seem to be acceptable.

This post was written by Nicholas M. Hanna & Samantha See of  K& L Gates., Copyright 2017

Chairman Clayton Outlines His “Guiding Principles” for SEC

In remarks to the Economic Club of New York on July 12, 2017, SEC Chairman Jay Clayton outlined eight guiding principles for his chairmanship and identified certain areas in which such principles could be put into practice.  Chairman Clayton’s remarks – his first public speech as SEC Chairman – indicated his interest in, among other things, creating a Fixed Income Market Structure Advisory Committee to give advice to the SEC on regulatory issues impacting fixed income markets and coordinating with the U.S. Department of Labor (DoL) to bring “clarity and consistency” to the issue of standards of conduct for investment professionals, noting the DoL’s Fiduciary Rule is now partially in effect.

Guiding Principles

Clayton stated that the following principles will guide his SEC chairmanship:

• Principle 1: “The SEC’s mission is our touchstone.” Chairman Clayton stated that each tenet of the SEC’s three-part mission – (1) to protect investors, (2) to maintain fair, orderly, and efficient markets, and (3) to facilitate capital formation – is critical.

• Principle 2: “Our analysis starts and ends with the long-term interests of the Main Street investor.”  According to the Chairman, an assessment of whether the SEC is abiding by its threepart mission must focus on the impact of its actions on “Mr. and Ms. 401(k)” and whether the SEC’s actions further the long-term interests of such investors.

• Principle 3: “The SEC’s historic approach to regulation is sound.” The SEC’s regulatory approach, focusing on disclosure and materiality, and using the SEC’s “extensive enforcement capabilities” as a “back-stop” to disclosure rules and oversight systems, is sound. In expressing his support for disclosure-based rules, Clayton asserted that informed decision-making by investors supports more accurate valuations of securities and more efficient allocation of capital.  As to the “back-stop,” the anti-fraud regime established by Congress and the SEC, Clayton noted the government’s “extensive enforcement capabilities on those who try to circumvent established investor protections or otherwise engage in deceptive or manipulative acts in the markets.”  Taking the foregoing into account, Chairman Clayton maintained that “wholesale changes” to the SEC’s fundamental regulatory approach would “not make sense.”

• Principle 4: “Regulatory actions drive change, and change can have lasting effects.”  Although Chairman Clayton endorsed the disclosure-based regime of the SEC, he cautioned that the incremental impact of regulatory changes to this regime has included a significantly expanded scope of required disclosures “beyond the core concept of materiality.”  He cited increased disclosure as among the factors that may make alternatives for raising capital increasingly attractive for small and medium-sized companies.  Chairman Clayton added that fewer small and mediumsized public companies may mean less liquid trading markets for those that remain public and, to the extent companies are not raising capital in public markets,  “the vast majority of Main Street investors will be unable to participate in their growth.”

• Principle 5: “As markets evolve, so must the SEC.”  Noting that technology and innovation are changing the way markets work and investors transact, Chairman Clayton stated that the SEC must take this “dynamic atmosphere” into account and “strive to ensure that our rules and operations reflect the realities of our capital markets.”   Further to this point, Clayton remarked that the evolution of capital markets presents opportunities for regulatory improvements and efficiencies and noted that the SEC is “adapting machine learning and artificial intelligence to new functions, such as analyzing regulatory filings.” Chairman Clayton cautioned, however, that implementing regulatory change has costs, including the “significant resources” spent by companies to build compliance systems.

• Principle 6: “Effective rulemaking does not end with rule adoption.”  Chairman Clayton stated that the SEC should review its rules “retrospectively,” and listen to investors and others as to areas in which rules are, or are not, functioning as intended.

• Principle 7: “The costs of a rule now often include the cost of demonstrating compliance.”  Chairman Clayton noted that the SEC must ensure that, at the time of adoption, the SEC has a “realistic version for how rules will be implemented,” as well as how the SEC will examine for compliance.  In this regard, according to Clayton, “[v]aguely worded rules can too easily lead to subpar compliance solutions or an overinvestment in control systems.”

• Principle 8: “Coordination is key.”  According to Chairman Clayton, coordination with, between, and among all of the various U.S. federal regulatory bodies, state securities regulators, selfregulatory organizations  and various other regulatory players “is essential to a well-functioning regulatory environment.”  To illustrate his point, Clayton cited the dual regulatory structure for over the-counter derivatives called for by the Dodd-Frank Act and working with the CFTC in this respect.  Chairman Clayton noted that cybersecurity is also an area where coordination is critical, adding that the SEC is working with “fellow financial regulators to improve our ability to receive critical information and alerts and react to cyber threats.”

Fixed Income Markets

In a portion of his remarks titled, “Putting Principles into Practice,” Chairman Clayton observed that the “time is right for the SEC to broaden its review of market structure to include specifically the efficiency, transparency, and effectiveness of our fixed income markets.”  The SEC, according to Clayton, must explore whether fixed income markets “are as efficient and resilient as we expect them to be, scrutinize our regulatory approach, and identify opportunities for improvement.”  In this connection, Chairman Clayton stated that he has asked the SEC staff to develop a plan for creating a Fixed Income Market Structure Advisory Committee.

Fiduciary Rule

Chairman Clayton also touched upon the DoL’s Fiduciary Rule, noting that he recently issued a statement seeking public input on standards of conduct for investment advisers and broker-dealers.  Chairman Clayton expressed hope that the SEC can “act in concert with our colleagues at the [DoL] in a way that best serves the long-term interests of Mr. and Ms. 401(k).”  He also noted that “any action will need to be carefully constructed, so that it provides appropriate and meaningful protections but does not result in Main Street investors being deprived of affordable investment advice or products.”

The transcript of Chairman Clayton’s remarks is available at: https://www.sec.gov/news/speech/remarks-economicclub-new-york.

Read more SEC news at the National Law Review.

This post was by the Investment Services Group of Vedder Price

U.S. Supreme Court Rules That An SEC Enforcement Claim For Disgorgement Is Subject To A Five-Year Statute Of Limitations

Today, the U.S. Supreme Court unanimously held that any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim accrued. The decision in Kokesh v. SEC, No. 16-529, resolved a split among Courts of Appeals whether the statute of limitations that applies to SEC enforcement actions seeking a penalty or forfeiture (28 U.S.C. § 2462) applies when disgorgement is sought. The Court had earlier applied that statute of limitations to claims by the SEC seeking a civil monetary penalty, and held that the limitations period begins to run when the violation occurs, not when it is discovered by the government. Gabelli v. SEC, 568 U.S. 442 (2013).

Supreme Court SCOTUS Class-Action WaiverThe five-year statute of limitations applies to “an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture.” The Court held that the imposition of disgorgement in an SEC enforcement action is a “penalty,” thus subject to the five-year limitations period. In reaching that conclusion, the Court noted that disgorgement is imposed as a consequence of violation of a public law, not because some individual was aggrieved. Another element of the Court’s reasoning was that when disgorgement is ordered in an enforcement action the remedy is not compensatory. Instead, disgorged profits are paid to the court, and it is within the discretion of the court to determine how and to whom the money will be distributed.

Perhaps most important among the Court’s rationales, the primary purpose of disgorgement ordered in an enforcement action is deterrence, and sanctions imposed to deter infractions of public laws are “inherently punitive.” The Court noted that the amount paid is often greater than the defendant’s gain so that the defendant is not, in all cases, merely restored to the status it would have occupied had it not broken the law.

The oral argument in the case included considerable colloquy on the source of a court’s power to order disgorgement in an SEC enforcement action. In its decision the Court stated, “Nothing in this opinion should be interpreted as an opinion on whether courts possess authority to order disgorgement in SEC enforcement proceedings . . . .” (Slip Op., p. 5, n. 3)

The obvious effect of the decision will be to require the SEC to be expeditious in filing cases seeking not only civil monetary penalties but also, now, disgorgement. The Court did not address whether the remedy of an injunction, which often has collateral consequences for the defendant, or of declaratory relief is subject to this statute of limitations. The Court also did not discuss the effect a tolling agreement would have on the running of the statute.

This post was written by Allan Horwich of Schiff Hardin LLP.

New Developments and Uncertainties for Conflict Minerals Disclosure

SEC conflict mineralsThe Securities and Exchange Commission (SEC) Division of Corporate Finance issued a new statement adding some uncertainty to company obligations and enforcement exposure under the SEC conflict minerals rule ahead of the May 31, 2017 filing deadline.  The statement is one of several moving pieces in an unprecedented wave of activity on conflict minerals in recent weeks.  Companies should review these developments and their approach to meeting legal obligations imposed by the SEC’s implementation of Section 1502 of Dodd Frank, alongside the broader expectations of customers, activists and investors.

Summary of Recent Developments

Highlights of the recent developments are listed below, followed by more detailed discussions on several of these key points.

  • On April 3, 2017 the U.S. District Court for the District of Columbia entered a final judgment in the conflict minerals litigation. The judgment put an end to the litigation and remanded the SEC rule to the agency for further action consistent with a 2014 decision from the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) striking down a narrow portion of the SEC rule.

  • SEC Acting Chairman Michael Piwowar released a statement on April 7, 2017 questioning whether the SEC could reconcile the D.C. Circuit’s decision with Congress’s intent in Section 1502. The Acting Chairman concluded that in light of the “regulatory uncertainties” outlined in his statement, it is “difficult to conceive of a circumstance that would counsel in favor of enforcing” paragraph (c) of Item 1.01 of Form SD (i.e., the rule’s requirements to conduct due diligence and file a Conflict Minerals Report).

  • On the same day, the SEC’s Division of Corporate Finance released a separate statement reporting that the Acting Chairman had requested the Division’s consideration of the regulatory uncertainties facing the Commission. In response, the Division declared that it “will not recommend enforcement action” to the Commission for companies that only file disclosures related to their scoping and reasonable country of origin inquiry under the provisions of paragraphs (a) and (b) of Item 1.01 of Form SD, even if they are required to conduct due diligence and file a Conflict Minerals Report pursuant to paragraph (c).  The Division also declared that the statement is “subject to any further action that may be taken by the Commission, expresses the Division’s position on enforcement action only, and does not express any legal conclusion on the rule.”

  • Earlier this year, the SEC had announced plans to reconsider the SEC rule and requested public comments on all aspects of the rule. In the April 7, 2017 statement, the Acting Chairman reported that he had instructed SEC staff to begin work on a recommendation for future Commission action to consider, among other things, the public comments received in response to the January 31, 2017 request for comment.

  • Democratic lawmakers on the Senate Banking Committee have called on the SEC’s Inspector General to investigate whether the Acting Chairman exceeded his authority in asking staff to assess whether “additional relief” from the SEC rules is appropriate.

Other developments suggest changes to the conflict minerals requirements in the SEC rule or in Section 1502 are likely in the future.

  • On March 27, 2017 the State Department issued a broad request for stakeholder input to inform “recommendations” signaling a broader inter-agency effort to consider new approaches to addressing the responsible sourcing of minerals in the region. Comments are due to the Department of State by April 28, 2017.

  • President Donald Trump may still be considering the Presidential Memorandum that was circulated in February, which would seek to waive the SEC conflict minerals rule for up to two years based on national security interests.

  • In Congress, the Senate Subcommittee on Africa and Global Health Policy held a hearing on April 5, 2017 on the effects of Section 1502 on the Democratic Republic of the Congo (DRC) and the region, increasing speculation that legislation may soon be introduced to fully or partially repeal the conflict mineral provisions of Dodd-Frank.

Beyond Dodd Frank and the SEC rule, requirements for conflict minerals due diligence and disclosure are expanding in other contexts.

  • EPEAT, a leading environmental rating system for the procurement of electronic products used by the U.S. government and other institutional purchasers, announced a new standard for mobile phones (and in the future servers) that includes mandatory criteria for due diligence and public disclosure related to conflict minerals.

  • The European Council adopted a new conflict minerals regulation on April 3, 2017 focused on EU importers of covered minerals, metals, and their ores from “high risk” and “conflict affected” areas.

More Details

SEC Rule Litigation Wraps Up

On April 3, 2017 the U.S. District Court for the District of Columbia entered a final judgment remanding the SEC rule to the agency for further action consistent with the 2014 D.C. Circuit decision, as the parties to the legal challenge of the SEC’s conflict minerals rule requested. In the 2014 decision, the D.C. Circuit had held that the portion of the rule requiring issuers to describe their products as “not found to be DRC conflict free” was compelled speech in violation of the First Amendment to the U.S. Constitution. The SEC issued a partial stay of the rule in April 2014, providing that no company is required to describe its products using the SEC descriptors “DRC conflict free,” “not found to be ‘DRC conflict free,’” or “DRC conflict undeterminable” and staying the requirement to obtain an independent private sector audit as long as companies did not describe products as “DRC conflict free” in their disclosures. After requests for rehearing were denied and the D.C. Circuit reaffirmed its decision, the case was eventually remanded to the District Court and assigned to Judge Ketanji Brown Jackson, who entered the final judgment. The practical effect of the District Court’s final judgment is that any further changes to the conflict minerals requirements stemming from the case will be left to the discretion of the SEC (unless Congress or the Administration take action first) rather than handled in the courts.

SEC Statements Following Final Judgment

In his April 7 statement following the District Court’s final judgment, the Acting Chairman questioned whether the SEC could reconcile the D.C. Circuit’s decision with Congress’s intent in Section 1502. He noted that the Commission will now be called upon to determine how to address the D.C. Circuit’s decision – including whether Congress’s intent in Section 1502 can be achieved through a descriptor that avoids the constitutional defect identified by the court – and how that determination affects overall implementation of the SEC rule. According to the Acting Chairman, because “the primary function of the extensive and costly requirements for due diligence on the source and chain of custody of conflict minerals set forth in paragraph (c) of Item 1.01 of Form SD is to enable companies to make the disclosure found to be unconstitutional,” along with other “regulatory uncertainties,” it is “difficult to conceive of a circumstance that would counsel in favor of enforcing” paragraph (c). On the same day, the SEC Division of Corporate Finance released a statement echoing the Acting Chairman’s concerns and announcing that “it will not recommend enforcement action” to the Commission for companies that conduct and report on a reasonable country of origin inquiry pursuant to paragraphs (a) and (b) of Item 1.01 of Form SD but do not go on to conduct heightened due diligence and file a Conflict Minerals Report pursuant to paragraph (c).

The legal effect of these two SEC statements is unclear. The Division’s position on enforcement is not binding on the Commission, and even though it appears that the Division and the Acting Chairman coordinated with respect to their recent statements, it is not clear that the SEC is of “one mind” with respect to conflict minerals implementation. For example, it is reported that SEC Commissioner Kara Stein commented in response to the Acting Chairman’s statement that the action “engages in de facto rulemaking” and “represents a troubling attack not only on the Commission process, but also on the restraints of government power.”  Moreover, the SEC has not modified the rule or explicitly changed its 2014 partial stay of the rule. Therefore the rule remains in effect, including, if necessary based on the results of a company’s reasonable country of origin inquiry, the requirement to conduct due diligence and file a Conflict Minerals Report as an exhibit to Form SD by May 31, 2017 pursuant to paragraph (c) of Item 1.01 of From SD. A decision by a reporting company to disregard any applicable requirements to conduct due diligence or file a Conflict Minerals Report should be very carefully considered.

In the meantime, companies should continue to monitor for potential activity in response to the SEC’s statements, which could include potential legal action by interested social justice organizations or renewed Congressional requests that the SEC Inspector General conduct an internal inquiry.

SEC Request for Comment

In January the Acting Chairman issued several statements regarding reconsideration of the conflict minerals rule. The statements, available here and here, direct staff to consider whether the 2014 guidance (i.e., the statements issued in conjunction with the partial stay of the rule’s requirements following the 2014 D.C. Circuit decision) is still appropriate and whether any additional relief is appropriate. The statement titled “Reconsideration of Conflict Minerals Rule Implementation” suggests that the current rule and general withdrawal from the region “may undermine U.S. national security interests by creating a vacuum filled by those with less benign interests.” The statements requested comments on “all aspects of the rule and guidance.” Comments were requested  within 45 days of the statements (by March 17, 2017). According to the Acting Chairman, the SEC staff has been instructed to begin work on a recommendation for future Commission action to consider, among other items, the comments received as part of the SEC’s consideration of potential changes to the rule or guidance.

State Department Seeks Recommendations

The Department of State on March 27, 2017 published a request for comments from stakeholders to inform “recommendations of how best to support responsible sourcing of tin, tantalum, tungsten and gold.” In the brief notice, the Department provides a high level overview of U.S. efforts to break the link between armed groups and minerals in the Africa Great Lakes Region. The State Department may be seeking stakeholder input on further actions that could be taken to further responsible sourcing to inform ongoing discussions within the Administration (and in Congress) on alternative approaches to the current Dodd Frank due diligence and disclosure framework. Comments are due to the Department of State by April 28, 2017.

Potential Presidential Action

A draft Presidential Memorandum circulated in early February 2017 indicates that the White House may seek to temporarily waive the requirements of the conflict minerals rule. Under the Dodd-Frank Act the SEC “shall revise or temporarily waive” the requirements of the conflict minerals rule if the President transmits to the SEC a determination that such revision or waiver is “in the national security interest of the United States and the President includes the reasons therefor;” and establishes a date within two years that the exemption expires. The draft Presidential Memorandum states that the conflict minerals rule has caused harm to some parties in the region, thereby contributing to instability in the region and threatening the national security interest of the United States. The draft Memorandum directs the SEC to temporarily waive the requirements of the conflict minerals rule for two years and directs the Secretaries of State and Treasury to propose a plan for addressing human rights violations and funding of armed groups in the Democratic Republic of the Congo or an adjoining country within 180 days of the Memorandum.

The draft Presidential Memorandum raises a number of questions without clear answers. For example, it is unclear whether or when the SEC would be required to act as directed by the Memorandum, and whether an SEC action would be subject to notice and comment rulemaking or judicial review. Also unclear is how a temporary suspension of the SEC rule would affect efforts to incorporate conflict minerals reporting obligations into public and private procurement requirements or independent certifications such as EPEAT. The Administration has not indicated whether or when it might move forward with a final memorandum.

New EPEAT Procurement Criteria

Conflict minerals due diligence is also being integrated into institutional procurement criteria for certain electronic products. EPEAT is a leading environmental rating system for electronics that a wide variety of institutional purchasers (including federal, state and some foreign governments) have incorporated into procurement requirements. The Federal Acquisition Regulation (FAR) currently requires federal agencies to procure EPEAT-registered electronic products and prescribes language that must be used in procurement contracts for goods and services. EPEAT is in the process of expanding its registry to cover two new product categories and both are expected to include new mandatory criteria on conflict minerals.

On March 24, 2017, EPEAT and Underwriters Laboratory published an EPEAT standard for mobile phones. The mobile phone standard lays out three criteria (one required, two optional) related to conflict minerals. The new standard requires manufacturers to “provide a public disclosure relevant to due diligence performed in accordance with an internationally recognized standard to determine whether the supply chain for the product contains conflict minerals necessary to the functionality or production of their products.” If a manufacturer finds that the supply chain does contain conflict minerals necessary to the functionality or production of its product, the manufacturer must prepare the “relevant disclosures related to SEC requirements under Dodd-Frank and the SEC rule or related to the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas.”

Significantly, these requirements apply to all manufacturers registering mobile phone products under the standard, regardless of whether they are SEC registrants. There are two optional conflict minerals criteria, both relating to conflict minerals sourcing. An EPEAT server standard is also under development and, if adopted, is expected to include conflict minerals provisions.

New EU Conflict Minerals Regulation 

In early April, the European Union took the final steps to adopt a new conflict minerals regulation aimed at stopping the financing of armed groups in “high risk” and “conflict affected” areas. The Council adopted the regulation on April 3, 2017, following approval by the European Parliament in early March.

The regulation, the first version of which was introduced in March 2014, establishes an approach that is fundamentally different than that under the Dodd-Frank Act and the SEC rule. Unlike the U.S. scheme, supply chain due diligence requirements under the EU regulation do not extend to downstream users of the metals, including importers of products containing those metals, and instead focus entirely on mandatory due diligence requirements for importers of the minerals, metals, and their ores. The geographic scope of the regulation also extends to conflict-affected and high-risk areas globally, extending beyond the DRC and adjoining countries covered by Dodd-Frank and the SEC rule.

Importers will be covered by the new due diligence requirements as of January 1, 2021. The new EU requirements are likely to enhance due diligence on the sourcing of conflict minerals from the DRC and other regions. Although downstream users or importers of products containing tin, tantalum, tungsten or gold would not be subject to mandatory due diligence requirements, the Commission is expected to address conflict minerals in non-binding guidance under the EU Non-Financial Reporting Directive that will set forth the methodology and topics for disclosures by companies covered by the Directive.

ARTICLE BY Graham C. Zorn, K. Russell LaMotte, Lauren A. Hopkins & Paul E. Hagen of Beveridge & Diamond PC

© 2017 Beveridge & Diamond PC

How the Trump Administration May Impact the Oversight and Enforcement of Dodd-Frank’s Whistleblower Protections

Dodd-frank, WhistleblowerOn the campaign trail, President Trump vowed to “dismantle” Dodd-Frank. Dodd-Frank was enacted in the wake of the 2008 financial crisis to curtail risky investment activities and stop financial fraud through increased oversight and regulation of the banking and securities industries. Among other things, it amended the Sarbanes-Oxley Act, Securities Exchange Act, and Commodity Exchange Act to include monetary incentives for individuals to blow the whistle on suspected financial fraud and stronger protections for whistleblowers against retaliation by their employers. President Trump has criticized Dodd-Frank, arguing that it is overbroad and inhibits economic growth. Now that he is in office, President Trump has the statute squarely in his crosshairs, and he is poised to impact its whistleblower protections on the legislative, administrative, and judicial fronts.

From a legislative standpoint, President Trump has wasted no time in seeking to roll back Dodd-Frank’s statutory framework. Only two weeks after his inauguration, he issued an EO titled “Core Principles for Regulating the United States Financial System,” which directs the Treasury Secretary to consult with the heads of financial agencies, including the Commodity Futures Trading Commission and the Securities and Exchange Commission (“SEC”), to find ways to conform U.S. financial regulations, including Dodd-Frank, to the Trump administration’s “Core Principles.” These “Core Principles” (detailed in the second article of this Take 5) are broad-sweeping and include, among other things, requiring “more rigorous regulatory impact analysis” for new laws and “mak[ing] regulation efficient, effective, and appropriately tailored.” While the precise scope of these principles is undefined (perhaps intentionally so), they appear to demonstrate a clear first step toward deregulation in the financial sector and may be a shot across the bow signaling the President’s intent to scale back—or at least halt any expansion of—Dodd-Frank, including its whistleblower protections.

Additionally, President Trump is well positioned to substantially affect the SEC’s administrative enforcement of Dodd-Frank’s whistleblower laws. Dodd-Frank created the SEC Office of the Whistleblower (“OWB”) to enforce its comprehensive whistleblower program. As reported in the 2016 Annual Report to Congress on the Dodd-Frank Whistleblower Program, since the OWB was established, the SEC has (i) awarded more than $100 million in bounty awards to whistleblowers who provided information leading to successful enforcement actions, (ii) independently sued employers for retaliating against employees for reporting alleged securities violations, and (iii) made it a top priority to find and prosecute employers that use confidentiality, severance, and other agreements that impede their employees from communicating with the SEC.

The SEC’s enforcement agenda could change significantly, however, under the Trump administration. Specifically, in 2017, President Trump will have the opportunity to appoint four out of the five SEC Commissioners (three seats are now vacant, and another will become vacant in June). He has nominated Jay Clayton—a corporate attorney who has spent his career representing financial services firms in business transactions and regulatory disputes—to fill one of those vacancies and serve as SEC Chair. New SEC leadership may result in the potential replacement of the sitting OWB Chief and alter the OWB’s current enforcement strategies. Thus, through his administrative appointments, President Trump may attempt to temper the SEC’s aggressiveness and focus when it comes to enforcement of Dodd-Frank’s whistleblower protections to more closely reflect his vision for less onerous regulation of the financial sector.

The President is also uniquely situated to influence the application of Dodd-Frank in the courtroom. Indeed, President Trump has inherited more than 100 federal court vacancies that he must fill, including one on the U.S. Supreme Court, giving him the opportunity to shape how Dodd-Frank’s whistleblower laws will be interpreted and applied by federal judges across the country. One of the most critical issues that hangs in the balance is whether an employee who reports an alleged securities violation only to his or her employer, and not to the SEC, is protected by Dodd-Frank’s anti-whistleblower retaliation provision. At present, there is a circuit court split on this issue. In 2013, the U.S. Court of Appeals for the Fifth Circuit held in Asadi v. G.E. Energy United States, LLC, that an employee who only reports a suspected violation internally is not a protected whistleblower for the purposes of Dodd-Frank’s anti-relation provision. In 2015, however, the Second Circuit Court of Appeals reached the opposite conclusion in Berman v. Neo@Ogilvy LLC. The question has since come before the Sixth Circuit Court of Appeals (which declined to rule on it) and is currently pending before the Courts of Appeals for the Ninth and Third Circuits, and it will almost certainly end up before the U.S. Supreme Court for resolution. Accordingly, President Trump’s federal judicial appointments—particularly his nomination of Judge Neil Gorsuch to the U.S. Supreme Court—may play a pivotal role in establishing exactly who is protected under Dodd-Frank’s proscription against whistleblower retaliation.

Ultimately, it is unlikely that President Trump will actually be in a position to completely “dismantle” Dodd-Frank. Yet, there is no question that he has at his disposal the power to greatly impact the statute at the legislative, administrative, and judicial levels, and there is little doubt that change is on the horizon.

ARTICLE BY Jason Kaufman of Epstein Becker & Green, P.C.

©2017 Epstein Becker & Green, P.C. All rights reserved.

Dodd-Frank Rollback Begins – Congress Overturns SEC’s Resource Extraction Issuer Payment Disclosure Rule

SEC resource extractionLast week, Congress utilized the Congressional Review Act (CRA) to pass a joint resolution that disapproves Rule 13q-1 adopted by the SEC,1which would have implemented the resource extraction issuer payment disclosure provisions of Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The disapproval resolution has been sent to President Trump for his signature, which he is expected to sign.2

Under the SEC’s rule, a public company that qualified as a “resource extraction issuer” would have been required to publicly disclose in an annual report on Form SD information relating to any single “payment” or series of related “payments” made by the issuer, its subsidiaries or controlled entities of $100,000 or more during the fiscal year covered by the Form SD to a “foreign government” or the U.S. Federal government for the “commercial development of oil, natural gas, or minerals” on a “project”-by-“project” basis. Resource extraction issuers were not required to comply with the rule until their first fiscal year ending on or after September 30, 2018 and their first report on Form SD was not due until 150 days after such fiscal year end.

As a result of the disapproval resolution (assuming President Trump signs, and does not veto, the resolution), issuers that expected to be subject to the SEC’s rule can cease their compliance preparations. Under the CRA, a disapproved rule may not be reissued in substantially the same form or as a new rule that is substantially similar to the disapproved rule unless specifically authorized by a subsequently enacted law. Despite the disapproval resolution and the CRA, Dodd-Frank Section 1504’s mandate for the SEC to adopt a resource extraction disclosure rule remains intact unless and until Section 1504 is repealed. In light of the CRA’s prohibition on the reissuance of a substantially similar rule, the rule’s contested history3 and the expected reintroduction of the Financial CHOICE Act, which if enacted into law in the form introduced during the previous session of Congress would repeal Section 1504, the SEC is unlikely to commence the rulemaking process for resource extraction issuer payment disclosures for a third time.

Some public companies may still have to disclose similar payment information as required under the SEC’s rule pursuant to international resource extraction disclosure laws (for example, the EU Accounting Directive, the EU Transparency Directive and Canada’s Extractive Sector Transparency Measures Act).

ARTICLE BY G. Michael O’Leary & Scott L. Olson of Andrews Kurth Kenyon
© 2017 Andrews Kurth Kenyon LLP

1. H.J.Res.41, available at https://www.congress.gov/bill/115th-congress/house-joint-resolution/41/text.

2. The White House, Press Release, H.J. Res. 38, H.J. Res. 36, H.J. Res. 41, H.J. Res. 40, H.J. Res. 37 – Statement of Administration Policy (Feb. 1, 2017), available at https://www.whitehouse.gov/the-press-office/2017/02/01/statement-adminis….

3. For a brief discussion of the legal challenges to the rulemaking process, see our client alert dated December 17, 2015, SEC Re-Proposes Disclosure Rules for Payments by Resource Extraction Issuers.