In a continued effort to reinvigorate and strengthen its enforcement program, the SEC has borrowed from the Department of Justice’s criminal process playbook and announced a series of new initiatives to encourage individuals to cooperate with the agency’s investigations and enforcement actions.1 The new cooperation tools2 include:
The SEC also formalized some additional related cooperation incentives, including:
As SEC Enforcement Director Robert Khuzami has explained, these tools represent “a potential game-changer” for the agency:
There is no substitute for the insiders’ view into fraud and misconduct that only cooperating witnesses can provide. That type of evidence can expand our ability to conduct our investigations more swiftly, and to act quickly to file charges, freeze assets, and protect investors.6
While these new cooperation tools might encourage cooperation and thus strengthen the Division’s ability to investigate and build cases, this is uncharted territory for the SEC and the SEC defense bar. These cooperation tools have yet to be tested in the SEC enforcement context and their effectiveness in achieving the Division’s goals remains unclear.7 This article explores the many questions raised by these new measures and the obstacles that remain.
In an effort to provide guidance, the SEC outlined for the first time its general approach to the way in which it will evaluate whether, how much, and in what manner to credit cooperation by individuals.8 The factors it will consider are:
Although the guidelines summarized above represent a creative and bold effort to enhance the SEC’s enforcement program, they fail to explicitly answer a number of key questions. Whether the new tools actually will enhance the enforcement program will depend largely on how they are interpreted and implemented. Set forth below are some of the key questions that remain.
Who Will Be Eligible to Enter Into a Cooperation Agreement?
It is not entirely clear to whom these new cooperation agreements will be made available. Are the cooperation agreements available only to those individuals who provide whistleblower-type information? In a whistleblower situation, where the staff has only limited information regarding the alleged violation, how will the staff assess whether a cooperation agreement is even appropriate in the first instance? What if an individual has information regarding significant misconduct at a corporation that is not of so-called societal interest? The new initiatives also strongly suggest that deferred prosecution and non-prosecution agreements will be available only in limited circumstances and that individuals associated with broker-dealers and investment advisors, officers and directors of public companies, and licensed professionals such as accountants and lawyers will be afforded less leniency.10
What Type of Cooperation Agreement, If Any, Will Be Available to an Individual or Corporation Who Is Not the First to Come Forward With Information?
Will a latecomer be able to take advantage of these cooperation tools? Enforcement Director Khuzami has made numerous public statements emphasizing the importance of timeliness and early cooperation. He has made it clear that latecomers rarely will qualify for cooperation credit:
And for those thinking about cooperating, you should seriously consider contacting the SEC quickly, because the benefits of cooperation will be reserved for those whose assistance is both timely and necessary. Latecomers rarely will qualify for cooperation credit, so there is every reason to step forward — before someone else does — while you are in a position to benefit from your knowledge of wrongdoing.
See Robert Khuzami “Remarks at Press Conference,” (January 13, 2010) available at http://sec.gov/news/speech/2010/spch011310rsk.htm. See also “Speech by Robert Khuzami: Remarks at AICPA National Conference on Current SEC and PCAOB Developments,” (December 8, 2009) available at http://www.sec.gov/news/speech/2009/spch120809rsk.htm.
How Much Weight Will the SEC Give to Cooperation and Cooperation Agreements?
The SEC is free not to respect a cooperation agreement negotiated by the staff11 therefore, there is uncertainty as to whether the agreed-upon deal will, in fact, be approved. How much weight will the SEC give to the staff’s recommendations regarding the credit to be given for cooperation? How much weight will the staff actually give to cooperation agreements in making recommendations? In the absence of a cooperation agreement, how much weight will the staff give to an individual’s cooperation in formulating an enforcement recommendation (or decision not to recommend an enforcement action)?
What Are the Disclosure Obligations of Entering Into a Cooperation Agreement?
There also are questions regarding what the disclosure obligations are for a company that employs an individual who has entered into a cooperation agreement, a deferred prosecution agreement, or a non-prosecution agreement. Will cooperation agreements, deferred prosecution agreements, and non-prosecution agreements be matters of public record? How will the SEC decide whether to make these agreements public?12
What Impact, If Any, Will Cooperation Agreements Have on Parallel Proceedings?
Even if the SEC rewards an individual for extraordinary cooperation, to what extent will the Department of Justice and other law enforcement agencies (e.g., the NASD, the PCAOB, state regulators, and prosecutors) respect the SEC’s decision to reward such cooperation? Simultaneously with the SEC’s announcement regarding the new tools to encourage cooperation, the SEC amended its rules to delegate authority to the enforcement director to submit witness immunity order requests to the Department of Justice for witnesses who have provided or have the potential to provide substantial assistance in the SEC’s investigations and related enforcement actions.13 What will be the ability of the SEC staff to assist a would-be cooperator in obtaining use immunity from the Department of Justice? The SEC Enforcement Manual provides that, in order to qualify for a deferred prosecution agreement, an individual may have to “agree either to admit or not contest underlying facts that the SEC could assert to establish a violation of the federal securities laws.”14 Under what circumstances, if any, does this mean that the would-be cooperator would have to admit to incriminating facts or agree not to contest those facts in other matters (e.g., enforcement actions by other regulators, private damage actions)?
How Much Weight, If Any, Will the Staff Give to Oral Assurances?
The Enforcement Manual authorizes oral assurances only when the investigative record is adequately developed. Accordingly, the Enforcement Manual provides that prior to providing an oral assurance, the staff should preferably receive proffers from the potential cooperating individuals and companies or have sufficient information regarding the potential cooperators’ conduct and their ability to provide substantial assistance to the SEC’s investigations or related enforcement actions. The Enforcement Manual requires that whenever the staff provides oral assurances, the staff should clearly inform the potential cooperating individual or company that the oral assurances are based upon the evidence currently known to the staff, that the Division’s enforcement recommendations may change if new evidence is subsequently discovered, and that the SEC has final authority to accept or reject enforcement recommendations. How readily will the Division change its position after providing oral assurances and how readily will the SEC reject the Division’s enforcement recommendation?
While the questions are numerous and the effectiveness of these new cooperation tools is not yet known, the initiative is significant. It has changed the playing field for both would-be cooperators and defense counsel and is clearly an innovative step toward helping the SEC achieve its enforcement goals.
Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and our colleagues. If you have any questions about this update or would like to discuss this topic further, please contact your Foley attorney or the following:
Kimberly J. Shur
Kenneth B. Winer
1 See SEC Press Release No. 2010-6, “SEC Announces Initiative to Encourage Individuals and Companies to Cooperate and Assist in Investigations,” (January 13, 2010) available at http://sec.gov/news/press/2010/2010-6.htm.
2 While the SEC historically could, in theory, reward a cooperating witness with forbearance of all charges for providing useful information, testimony, or documents or, with the permission of the attorney general, provide immunity from criminal prosecution, these options rarely have been used. See Securities and Exchange Commission Division of Enforcement, Enforcement Manual, Section 22.214.171.124.1, available at http://www.sec.gov/divisions/enforce/enforcementmanual.pdf. Typically, only corporations and other entities have received cooperation credit from the SEC and only in the context of the Seaboard Order. See SEC Release No. 44969, “Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934 and Commission Statement on the Relationship of Cooperation to Agency Enforcement Decisions,” (October 23, 2001) available at http://www.sec.gov/litigation/investreport/34-44969.htm. See also Alex Lipman, “Dusting Off SEC Cooperation Rules for Individuals,” SecuritiesLaw360 (July 13, 2009) available at http://www.law360.com/articles/109341.
3 See Securities and Exchange Commission Division of Enforcement, Enforcement Manual §§ 6.2, 6.2.2, 6.2.3, 6.2.4, available at http://www.sec.gov/divisions/enforce/enforcementmanual.pdf.
4 The new initiative also codifies and sets forth guidelines on the use of proffer agreements, a related cooperation tool the Division has used for many years. A proffer agreement is a written agreement providing that any statements made by a person, on a specific date, may not be used against that individual in subsequent proceedings, except that the SEC may use statements made during the proffer session as a source of investigative leads or for impeachment or rebuttal purposes if the person testifies inconsistently in a subsequent proceeding. The SEC also may share the information provided by the proffering individual with the appropriate authorities in a prosecution for perjury, making a false statement, and obstruction of justice. See id., § 6.2.1.
6 See SEC Press Release No. 2010-6, “SEC Announces Initiative to Encourage Individuals and Companies to Cooperate and Assist in Investigations,” (January 13, 2010) available at http://sec.gov/news/press/2010/2010-6.htm.
7 In contrast, the Department of Justice long ago routinized its cooperation practice and procedures. As a result of the proliferation of cooperation arrangements in criminal investigations and prosecutions led by the Department of Justice, the Sentencing Commission has reported that from October 2008 through September 2009 nearly 26 percent of all sentences were imposed below the Guidelines range as a result of government-sponsored departures.
8 For corporations and business organizations, Seaboard is still the standard and is incorporated into the Enforcement Manual in Section 6.1.2. See Securities and Exchange Commission Division of Enforcement, Enforcement Manual § 6.1.2, available at http://www.sec.gov/divisions/enforce/enforcementmanual.pdf.