SEC Defense

McDermott Will & Emery’s SEC Defense Group is composed of lawyers across the country, including former members of the SEC Division of Enforcement, all of whom have substantial experience covering the full spectrum of securities enforcement activity. Our lawyers are knowledgeable about the U.S. Securities and Exchange Commission (SEC), its organization, rules, practices, customs and staff. Our group’s experience is well respected by the SEC, as evidenced by the fact that the agency has, at our request, filed amicus curiae briefs supporting our clients’ positions in private litigation. The SEC has also called upon members of our group to act as receivers in SEC civil enforcement proceedings.

Our lawyers have represented public companies, accounting firms, broker-dealers, investment advisers, underwriters, audit committees and officers, directors and senior management in investigations and enforcement proceedings brought by the SEC; the Financial Industry Regulatory Authority (FINRA), formerly known as the National Association of Securities Dealers (NASD); the Public Company Accounting Oversight Board (PCAOB); stock exchanges; and other self-regulatory organizations, as well as various state securities enforcement agencies.

SEC Defense Group lawyers have represented clients in cases involving the full spectrum of substantive areas, such as the following:

Financial and accounting cases involving issues such as offering frauds, earnings management, pension benefit accounting, revenue recognition (including software revenue recognition), “channel stuffing,” purchase accounting, warranty reserves and disclosure issues
Broker-dealer cases involving issues such as suitability, conflicts of interest, sales practices, failures to supervise, undisclosed principal trades by an affiliate, soft dollars, use of client funds, account statement disclosures, net capital and the adequacy of various disclosures
Investment adviser and investment company cases involving issues such as the allocation of IPO shares, mutual fund share class sales, custody and possession and the adequacy of various disclosures
Trading cases, including issues such as market timing and late trading mutual fund shares, market manipulations and insider trading
Options dating cases, including all forms of potential options pricing issues on behalf of individuals, issuers and audit committees
Foreign Corrupt Practice Act (FCPA) cases, involving a wide variety of legal and factual issues raised by the FCPA.

Our SEC Defense Group represents clients in all aspects of SEC and other regulatory investigations, and has been successful in persuading regulators to close many of these investigations without instituting any enforcement proceedings against our clients. Group lawyers have been successful in deterring the SEC at various stages of enforcement investigations, including the initial inquiry stage and the formal investigation stage. Additionally, our lawyers have also deterred the SEC when investigations have proceeded to the “Wells Submission” stage, a process through which the Firm submits “Wells Submissions” on behalf of clients that have been notified that the SEC staff intends to recommend that the SEC authorize an enforcement action. Through this process, our Group frequently persuades the SEC either not to take any action against our clients or to reduce the nature and scope of the charges, including the elimination of fraud based charges.

Our group also represents clients in post-investigation enforcement proceedings, both federal and state, including criminal, civil and administrative actions. Group lawyers regularly represent clients in civil enforcement proceedings in federal district courts, in cases involving requests for permanent injunctions, motions for temporary restraining orders, preliminary injunctions and various forms of ancillary relief, such as the appointment of receivers, asset freezes, disgorgement, civil money penalties and officer and director bars. Our representation also includes clients in administrative enforcement proceedings at both the state and federal levels. Many of these cases involve serious licensure issues and a wide array of possible regulatory sanctions.

In addition to representing clients in civil enforcement proceedings, our SEC Defense Group lawyers have substantial experience representing clients in parallel investigations by civil and criminal law enforcement agencies, and in civil investigations that implicate possible criminal liability. In fact, more than 10 of our lawyers are former federal prosecutors, and others have significant criminal trial experience.

Our lawyers have unrivaled experience, both civil and criminal, as they have successfully tried several federal district court enforcement proceedings and both state and federal administrative proceedings to verdict. This experience redounds to our clients’ benefit in all cases, whether settled or tried.

In addition, our group has extensive experience in private class action and derivative litigation, which often accompany securities-related investigations and disputes. Our lawyers often coordinate highly complex litigation involving civil enforcement proceedings, criminal proceedings, class and derivative actions and bankruptcy filings. Our SEC Defense Group has substantial appellate experience, as past and current work has focused on the representation of clients in appeals of state and federal administrative decisions to the SEC, to state appellate tribunals and to the U.S. Circuit Courts of Appeal.

SEC Defense Group Representative Experience