inSecurities

Quinn Emanuel partners Michael Liftik, Sarah Heaton Concannon, and Dabney O’Riordan join this special episode of the inSecurities Podcast to unpack the SEC Division of Enforcement’s Annual Report, which was released on November 14, 2023. Kurt and the expert panel discuss the Division’s motivation to post impressive enforcement statistics and grab headlines with high impact cases. The panel also discusses programmatic priorities, including perennial focus areas like investment adviser cases, and results in litigated matters.

Vinson & Elkins partner Rebecca Fike joins the inSecurities podcast to talk about insider trading, the SEC’s use of artificial intelligence and data analytics to root out misconduct, and the Enforcement Division’s focus on reporting and disclosure cases, including Environmental, Social, and Governance (ESG) reporting. She also explains how the Commission’s focus on charging even technical violations feels a bit like the return of the “broken windows” approach to enforcement. Rebecca draws on her 10 years of experience in the Division of Enforcement to explain what captures the staff’s attention and how they investigate. 

Miller & Chevalier Partner Sandra Hanna returns to the inSecurities podcast to discuss key takeaways from the Securities Enforcement Forum 2023. Sandra and Kurt talk about SEC Chair Gary Gensler’s remarks at the conference, which covered the SEC’s annual enforcement results, crypto enforcement, and the SEC whistleblower program. They also dive into the important topic of self-reporting: When, why, and how to do it.

After their discussion on CFTC enforcement, Kurt and CFTC Commissioner Caroline D. Pham discussed the current state of crypto regulation in the United States and the CFTC’s role in policing the digital assets marketplace. Tune in for the second installment of Commissioner Pham’s interview on the inSecurities podcast.

For more insights from Commissioner Pham on crypto regulation:

• On speaking orders in enforcement actions

Commissioner Caroline D. Pham of the Commodity Futures Trading Commission joins Kurt on the inSecurities podcast to talk about the CFTC’s regulatory mandate, the role of CFTC enforcement, and the perils of what she calls “examination by enforcement.” Among other things, Commissioner Pham stresses the deterrent effect of holding wrongdoers accountable, the need for regulatory clarity (particularly when regulators test novel enforcement theories), and the importance of upholding the CFTC’s jurisdiction. Tune in for the second installment of this two-part episode to hear Commissioner Pham’s views on crypto regulation.

For more insights from Commissioner Pham on CFTC enforcement:

• On speaking orders in enforcement actions

They’ve been waiting all year long just to talk to George. On this episode of the inSecurities podcast, Chris and Kurt sit down again with SEC Institute Director George Wilson to discuss recent SEC reporting, compliance, and accounting developments, including recent signals from the SEC’s Chief Accountant Paul Munter, the state of play in crypto accounting, developments in the SEC’s Office of the Whistleblower, and — just in time for Halloween — new C&DIs in the CorpFin candy dish. Plus, Chris adds a new acronym to the inSecurities lexicon: SALY (Same As Last Year).

On this episode of the inSecurities podcast, Chris and Kurt chat with SEC Commissioner Mark T. Uyeda about the state of the U.S. capital markets, Commissioner Uyeda’s views on the SEC rulemaking process, and “the perils of regulation by theory and hypothesis.” 

In July 2023, the SEC proposed new rules that would require broker-dealers and investment advisers to address conflicts of interest that could arise from their use of predictive data analytics. On this episode of the inSecurities podcast, Chris and Kurt welcome back Professor James Tierney to talk about the proposed data analytics rule and Professor Tierney’s recent paper, “The SEC’s data analytics rule and the ‘Netflix’ problem in securities law.”

Read Professor Tierney’s paper here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4524766

J.W. Verret, an Associate Professor of Law at the George Mason University Antonin Scalia Law School and a long-time friend of the inSecurities podcast, sits down with Chris and Kurt to discuss his new paper “Disgorgement Accounting After Liu v. SEC in Securities Enforcement Cases.” Professor Verret’s article is the first to link Liu’s directives on disgorgement to fundamental accounting principles. The result is an article at the intersection of securities law and accounting. Chris, Kurt, and J.W. talk about how practitioners should think about disgorgement accounting after Liu, and where they may be able to get a leg up in negotiations with the SEC Enforcement staff.

You can read Professor Verret’s new article on SSRN here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4542940

Nick Morgan, a Partner at Paul Hastings and Founder of the Investor Choice Advocates Network (ICAN), joins the inSecurities podcast to discuss the dangers of “regulation by enforcement.” Nick, Chris, and Kurt consider two amicus briefs ICAN filed that underscore the important differences between the traditional notice-and-comment rulemaking process and the SEC’s effort to expand the rulebook through enforcement actions.