SEC Enforcement: A Comprehensive Guide to Investigations Wells Notices and Remedies

75 questions on SEC enforcement, answered and cited by the UpLaw editorial team.

• Are SEC investigations confidential?
• Can a company indemnify executives for securities-law liabilities?
• Can a corporation invoke the Fifth Amendment in an SEC investigation?
• Can a litigated SEC judgment be used against a defendant in a private suit?
• Can a subject of an SEC investigation see the formal order?
• Can the SEC and DOJ investigate the same conduct in parallel?
• Does a settled SEC order have preclusive effect in later private litigation?
• Does Dodd-Frank protect employees who report only internally?
• Does Exchange Act Section 4E's 180-day deadline help a defendant?
• Does giving privileged material to the SEC waive the privilege against private plaintiffs?
• Do trial-type protections apply during an SEC investigation?
• How broad is the SEC's investigative subpoena power?
• How can counsel tell that a whistleblower is behind an SEC inquiry?
• How did the NDAA change SEC disgorgement authority?
• How does a whistleblower change the defense of an SEC investigation?
• How does Sarbanes-Oxley Section 806 differ from Dodd-Frank whistleblower protection?
• How does the SEC's three-tier civil penalty structure work?
• How do matters arrive at the SEC's Division of Enforcement?
• How has Jarkesy changed the economics of an SEC defense?
• How is SEC investigative testimony different from a deposition?
• How long does a typical SEC investigation take?
• How long does the SEC have to seek disgorgement and bars?
• How should a company cooperate with the SEC without waiving privilege?
• How should a witness be prepared for SEC testimony?
• Must the SEC notify a target when it subpoenas records from third parties?
• Should a company sign a tolling agreement with the SEC?
• What are collateral bars, and can they apply retroactively?
• What are the elements of an SEC whistleblower award?
• What are the four things that matter most in responding to an SEC subpoena?
• What are the risks of making a Wells submission?
• What are the Seaboard factors?
• What are the ten key lessons of SEC enforcement defense?
• What collateral consequences follow an SEC order?
• What D&O insurance issues arise in an SEC investigation?
• What decisions actually determine the outcome of an SEC investigation?
• What did Axon and Cochran decide about challenging SEC proceedings?
• What did Jarkesy change concretely about SEC forum selection?
• What did Lucia v. SEC decide about administrative law judges?
• What did SEC v. Jarkesy hold?
• What did United States v. Stringer decide about SEC-DOJ coordination?
• What does a good Wells submission accomplish?
• What factors govern penalties against corporations?
• What is an oral Wells presentation?
• What is an Upjohn warning and when must it be given?
• What is a Rule 102(e) proceeding?
• What is a Wells notice?
• What is Rule 21F-17, and why is it called the sleeper?
• What is SEC cooperation credit actually worth?
• What is SEC Form 1662, and why does it matter so much?
• What is the act-of-production doctrine?
• What is the cost of taking the Fifth in an SEC civil case?
• What is the difference between an informal SEC inquiry and a formal order of investigation?
• What is the SEC's neither-admit-nor-deny policy?
• What is the zero-sum problem in corporate cooperation with the SEC?
• What is wrong with an obey-the-law injunction?
• What limits did Liu v. SEC place on disgorgement?
• What makes a tip likely to produce an SEC investigation?
• What must the SEC show to obtain an injunction?
• What operational steps follow from assuming a parallel criminal investigation?
• What other regulators follow an SEC enforcement action?
• What special penalties apply to insider trading?
• What statutory authority does the SEC have to investigate securities violations?
• When can the SEC obtain an officer-and-director bar?
• When does the limitations clock start on an SEC penalty claim?
• When does the SEC require admissions in a settlement?
• When should a defendant make a Wells submission?
• Why did the SEC historically prefer its in-house administrative forum?
• Why does an SEC order trigger a securities class action?
• Why does neither-admit-nor-deny exist?
• Why does the definition of a violation matter to penalty calculations?
• Why do off-channel communications matter in SEC enforcement?
• Why is being charged under Section 17(a)(3) instead of Rule 10b-5 so valuable?
• Why is joint representation of company and individual witnesses dangerous?
• Why is the investigation, rather than the Wells process, the real case?
• Why is the officer-and-director bar often the most important remedy to negotiate?