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SEC to Continue to Punish Wrongdoers and Deter Misconduct
In Fiscal Year 2022, the SEC pursued what it described as a "robust" enforcement agenda and, according to enforcement director, Gurbir Grewal, was "working with a sense of urgency to protect investors, hold wrongdoers accountable and deter future misconduct in our financial markets." We see nothing to suggest this approach to enforcement will change in 2023. The Division of Enforcement will likely continue to use "every tool in its toolkit" and expect that public companies and other market participants will think rigorously about their business and appropriately tailor compliance practices and internal controls and policies to match. When there are, however, violations of the federal securities laws, we can expect the commission to seek and impose remedies that it believes meaningfully punish the wrongdoer and also deter future misconduct.
This focus on robust enforcement was borne out in the SEC's fiscal year 2022 results. What jumps out immediately from the results are the significant financial remedies that the commission sought or imposed. In fact, the commission set a new record for monetary relief in a single year, with the total, including disgorgement, pre-judgment interest, and civil penalties, reaching nearly $6.5 billion. Civil penalties accounted for $4.2 billion of the total, which is the largest single-year amount in that category in the SEC's history — and more than was ordered the past three years combined. This jump in civil penalties, however, does not paint the complete picture. Importantly, the commission pursued — and we expect will continue to pursue — more aggressive remedies beyond disgorgement of ill-gotten gains and civil money penalties. Those regulated by the SEC should take particular note of what is likely to be a continued aggressive stance with regard to other impactful remedies including admissions, corporate governance and other compliance undertakings, officer and director bars, and executive compensation claw backs pursuant to Sarbanes-Oxley Section 304 and think proactively about steps that will help mitigate the risk of becoming subject to such sanctions.
Admissions
In the past year, in addition to large civil penalties and orders of disgorgement, the SEC also required admissions as part of numerous settled resolutions. This seemingly heightened focus on admissions was announced by Director Grewal at the beginning of fiscal year 2022 when he explained: "when it comes to accountability, few things rival the magnitude of wrongdoers admitting that they broke the law, and so, in an era of diminished trust, we will, in appropriate circumstances, be requiring admissions in cases where heightened accountability and acceptance of responsibility are in the public interest." He continued: "admissions also serve as a clarion call to other market participants to stamp out and self-report the misconduct" that may be occurring within their firms.
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