SEC, CFTC Are “Not Walking Away” From Traditional Enforcement Areas, but Otherwise Will “Wait and See”

This afternoon’s Special Conversation with Enforcers & Regulators session at the ABA White Collar Crime Conference featured — rarely, for this conference — government participation in the form of Antonia Apps (Acting Deputy Director of the U.S. Securities and Exchange Commission (SEC) Enforcement Division) and Brian Young (Director of the Commodity Futures Trading Commission (CFTC) Enforcement Division). The message from both was the same and a bit surprising to hear in the current climate: that both the SEC and CFTC were not going anywhere, but were “getting back to basics” and continuing to prosecute cases “core” to their central purpose.

Both speakers carefully threaded the needle between recent Trump administration announcements and the core message of their continued enforcement priorities. For the SEC, Apps listed areas such as offering-related Ponzi schemes, disclosure cases, accounting fraud, insider trading, deceptive market practices such as price manipulations, and breaches of fiduciary duty. For the CFTC, Young said that the agency would focus on fraud and market manipulation cases, and particularly cases where it saw a good chance of returning money to victims.

Cryptocurrency cases are a particularly hot-button issue for the SEC, since it recently dropped several major cryptocurrency cases. Apps emphasized that despite all rumors to the contrary, the SEC is not withdrawing from the cryptocurrency space. Apps discussed ongoing cryptocurrency-related “policy shifts” within the SEC, and cited (1) the creation of a cryptocurrency “task force” within the SEC which aimed to develop a comprehensive regulatory framework for cryptocurrency assets; (2) the SEC’s recent bulletin rescinding its previous guidance on cryptocurrency assets, which had required businesses to recognize cryptocurrencies as liabilities on their balance sheets. However, when asked point-blank whether the SEC would continue to bring stand-alone registration cases, Apps said she would not “get into that level of detail on this panel.” She said that a lot of this was a “wait-and-see” situation, but re-emphasized that the SEC is “not walking away” from cryptocurrency.

Apps also was asked whether the SEC intended to continue enforcing the Foreign Corrupt Practices Act in light of President Trump’s recent executive order pausing its enforcement. (For more on this, see our recent Advisory discussing the Trump administration’s announced intention to stop FCPA prosecutions.) Apps answered that it was “too early to tell,” and that the SEC intended to “follow the lead” of the U.S. Department of Justice.

Perhaps predictably, Young also recommended that companies self-report and cooperate. He cited a recent CFTC announcement, CFTC Releases Enforcement Advisory on Self-Reporting, Cooperation, and Remediation, 9054-25, which laid out a new “mitigation matrix” to calculate the presumptive mitigation credit that a company could receive in return for its self-reporting and cooperation. Young also announced a change to CFTC policy, in that it would now allow credit for disclosures made to CFTC’s operating divisions (before, credit was given only for disclosures made to the enforcement division). Young asked that companies participate in good faith and avoid “forum shopping” (e.g., by choosing more lenient operating divisions for their self-reporting disclosures).

More to come from Miami! Continue to follow Enforcement Edge for updates.

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