On June 13, 2022, the Securities and Exchange Commission charged three Charles Schwab investment adviser subsidiaries—Charles Schwab & Co., Inc.; Charles Schwab Investment Advisory, Inc. (“CSIA”); and Schwab Wealth Investment Advisory, Inc. (“SWIA,” and together with Charles Schwab & Co., Inc. and CSIA, “Charles Schwab”)—with violations of the Investment Advisers Act of 1940 for alleged misconduct associated with its robo-advisor, Schwab Intelligent Portfolios (“SIP”). Unlike most other robo-advisers, Charles Schwab did not charge an advisory fee for the SIP service. However, Charles Schwab required its SIP clients to hold pre-set amounts of cash—rather than investing in equities under market conditions where equities were outperforming cash—that was then loaned out by Charles Schwab Bank at higher interest rates than it paid to the SIP clients, resulting in a profitable spread for Charles Schwab and the equivalent of a hidden fee for its clients, since holding cash lowered their returns. Charles Schwab was ordered to pay almost $46 million in disgorgement, more than $5 million in prejudgment interest, and $135 million as a civil penalty. The $187 million in total sanctions will be returned to investors. Charles Schwab also agreed to an independent consultant to conduct a “comprehensive review” of its compliance policies, and agreed to provide ongoing cooperation to the SEC in an unusual provision—a sign that there may be additional charges yet to come.
SEC Imposes Penalties and Sweeping Independent Consultant on CohnReznick for Alleged Audit Failures in Case Underscoring SEC’s Focus on “Gatekeepers”
By Matthew C. Solomon, Lisa Vicens & Tom Bednar on
On June 8, 2022, the SEC announced a notable settlement with national audit firm CohnReznick LLP, charging it with failure to uphold several professional standards during its 2017 audits of two public companies that had previously been sued by the SEC for accounting fraud. In its order, the SEC specifically alleged that CohnReznick violated professional standards and contributed to materially misleading financial statements by, among other things, failing to exercise sufficient professional skepticism and accepting assertions from company management without sufficient supporting evidence. The SEC fined CohnReznick $1.9 million, levied fines and suspensions against several of its audit partners, and imposed an independent consultant with a sweeping mandate to demand various audit-related and internal process reforms and veto new audit clients. This action is consistent with the SEC’s repeated warnings that “gatekeepers” such as auditors are in the agency’s crosshairs.
SEC Accounting Enforcement Action Signals Heightened Focus on Individual Accountability and Puts Public Company Executives on Notice for Potential SOX 304 Reimbursement
On June 7, 2022, the Securities and Exchange Commission announced that it had charged software company Synchronoss Technologies, Inc. and seven of its current and former employees in connection with an alleged long-running accounting fraud involving improper revenue recognition of more than $46 million across six quarters. All of those implicated settled with the SEC and agreed to pay a range of penalties, except for the former CFO and controller, who will litigate against the SEC in New York federal court. Synchronoss was ordered to pay a $12.5 million penalty.
New ESG Rule Proposal Raises the Stakes under SEC’s New Marketing Rule
On May 25, 2022, the U.S. Securities and Exchange Commission (“SEC”) proposed amendments to rules and related reporting forms under the Investment Advisers Act of 1940 (the “Advisers Act”) and the Investment Company Act of 1940 (the “Investment Company Act”) that are ostensibly intended to provide additional transparency regarding the use of environmental, social, and governance (“ESG”) factors by investment advisers and investment companies (the “Proposal,” available here), but which will also give SEC Examination and Enforcement staff additional tools to track and target advisers and funds pursuing an ESG strategy. Continue Reading New ESG Rule Proposal Raises the Stakes under SEC’s New Marketing Rule
SEC’s ESG Task Force Comes Out Swinging with Inaugural Enforcement Action Ahead of New ESG Disclosure Rules
On May 23, 2022, the Securities and Exchange Commission (“SEC”) announced the inaugural enforcement action against an investment adviser by its much hyped ESG Task Force.[1] As expected, this case does not find fault with the concept of ESG or conduct suggesting actual wrongdoing. Instead, consistent with bread and butter policy for the SEC’s Enforcement Division, the SEC charged BNY Mellon Investment Advisers (“BNYMIA”) for failing to act consistently with its ESG disclosures to investors and having inadequate policies and procedures to prevent the misleading disclosures. While the penalty of $1.5 million could be seen as small for this SEC, BNYMIA was charged with negligent fraud under Section 206(2), Section 206(4) and Rule 206(4)-8 under the Advisers Act, in addition to compliance violations. Continue Reading SEC’s ESG Task Force Comes Out Swinging with Inaugural Enforcement Action Ahead of New ESG Disclosure Rules
SEC Division of Examinations Reinforces Gensler Initiatives in its 2022 Exam Priorities
On March 30, 2022, the U.S. Securities and Exchange Commission (“SEC”) Division of Examinations (the “Division”)—formerly the Office of Compliance Inspections and Examinations—released its 2022 Examination Priorities (“2022 Priorities”). The Division is undergoing extensive leadership changes, with the recent departures of several top officials. Consistent with the aggressive agenda set by Chair Gensler for the SEC generally, the Division has returned to its pre-pandemic caseload, conducting over 3,000 exams in fiscal year 2021, issuing over 2,000 deficiency letters, and making 190 referrals to the Enforcement Division. Despite the management changes, the 2022 Priorities generally retain perennial risk areas as the core focus, but include several new and emerging risk areas reflecting the policy goals espoused by Gensler in recent proposed rule releases and public statements. Continue Reading SEC Division of Examinations Reinforces Gensler Initiatives in its 2022 Exam Priorities
Authorities in U.S. Take Steps to Strengthen Enforcement of U.S. Measures Against Russia
U.S. federal and state authorities recently announced actions that are designed to give effect to economic measures taken against Russia and hold accountable those who violate U.S. laws. These developments suggest that U.S. authorities’ focus on enforcing U.S. sanctions and export controls, anticorruption and anti-money laundering laws, and the growing scrutiny of cryptocurrency, will continue. They also point to further coordination and cooperation between authorities in the U.S. and other jurisdictions in investigating and prosecuting violations of their respective laws. Continue Reading Authorities in U.S. Take Steps to Strengthen Enforcement of U.S. Measures Against Russia
SEC Takes Aim at Crypto Lending in BlockFi Settlement; Calls on Market to “Come into Compliance”: Is Regulatory Clarity Coming Soon?
The SEC and a consortium of 32 states recently announced a $100 million settlement with BlockFi Lending LLC over its crypto lending product, BlockFi Interest Accounts. The SEC alleged BlockFi had violated the securities laws by failing to register its interest-bearing crypto lending product as a security, failing to register itself as an investment company, and making false statements about the risks of its product.
On the heels of this settlement, BlockFi announced that it will seek to register its crypto lending product as a security. While hailed by SEC Chair Gary Gensler as a signal of “the Commission’s willingness to work with crypto platforms to determine how they can come into compliance with” the securities laws, the settlement leaves unanswered important questions for those similarly situated in the industry. However, given the SEC’s short 60-day timeline for BlockFi to come into compliance with the securities laws, the wait for regulatory clarity may not be long.
Please click here to read the full alert memorandum.
Unsealed Indictment Illustrates Interplay Between Criminal and Civil Liability For Theft Of Trade Secrets
On February 7, 2022, the U.S. Attorney’s Office for the Northern District of Illinois unsealed an indictment against Hytera Communications Corporation, Ltd. (“Hytera”), a company headquartered in Shenzhen, China, and several individuals, charging each with conspiracy to commit theft of trade secrets.[1] The indictment’s allegations parallel those made in two civil complaints Motorola Solutions Inc. (“Motorola”) filed against Hytera for theft of trade secrets and patent infringement in the same Court in 2017.[2] Continue Reading Unsealed Indictment Illustrates Interplay Between Criminal and Civil Liability For Theft Of Trade Secrets
SEC Chair Previews Ramp Up in Regulation and Enforcement in the Cybersecurity Context
On January 24, 2022, Securities and Exchange Commission Chair Gary Gensler gave a speech at the Northwestern Pritzker School of Law’s Annual Securities Regulation Institute signaling the SEC’s intention to step up its cyber-related regulatory and enforcement efforts. Gensler described the continued rise in cybersecurity incidents targeting the financial sector as a serious threat to the nation’s economy and critical infrastructure, with costs potentially in the trillions of dollars. Continue Reading SEC Chair Previews Ramp Up in Regulation and Enforcement in the Cybersecurity Context