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Above Board: SEC Enforcement - Control Violations and Compliance Best Practices

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In this episode of the Above Board podcast, Morrison Foerster partner and host Scott Lesmes speaks with Morrison Foerster partners Haima Marlier and Michael Birnbaum, both former senior trial counsel at the SEC, and Craig Martin, a former enforcement attorney at the SEC, about recent SEC enforcement activities concerning controls violations. 

Above Board: SEC Enforcement - Control Violations and Compliance Best Practices

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Scott Lesmes chairs Morrison Foerster’s Public Company Advisory & Governance practice, and is a partner in the firm's Capital Markets practice. Scott focuses his practice on counseling clients with respect to corporate and securities matters. He advises publicly-listed companies and boards of directors on a broad range of securities regulation and corporate governance issues and has substantial experience in dealing with restatements and internal control concerns.Scott also counsels issuers and underwriters in the public offering process and in corporate compliance matters involving SEC reporting and disclosure requirements.Prior to his career in private law, Scott served as in-house counsel at two public companies. He worked extensively in establishing corporate compliance programs and policies, including those related to insider trading, Section 16, and corporate disclosure while serving as Chief Legal Officer for Allied Capital Corporation, a NYSE-listed business development company, as well as Deputy General Counsel/Chief Securities Counsel for Fannie Mae, a financial services company. Scott draws on his significant in-house experience to provide valuable perspective in his role as an outside advisor. Scott has received nationwide recognition for excellence in capital markets law. Legal 500 US recognizes Scott as "a key partner in the team [for debt offerings]" and acknowledges his "capital markets expertise. IFLR1000 distinguishes Scott as "highly regarded" in the areas of Capital markets: Debt and Capital markets: Equity, and U.S. News' Best Lawyers identifies him as a leading lawyer in Securities/Capital Markets Law.Scott currently serves as chair of Morrison & Foerster’s Practice and Opinion Review Committee, and as a co-chair of Practising Law Institute’s Annual Disclosure Documents program.

Scott Lesmes

Partner

Haima Marlier is co-chair of Morrison Foerster’s Securities Litigation, Enforcement, and White Collar Defense Group and of its Fintech practice. Drawing on her experience as a former Securities and Exchange Commission Senior Trial Counsel, Haima represents public and private companies, financial services providers, and executives, directors, and other individuals in SEC, CFTC, Financial Industry Regulatory Authority (FINRA), state securities regulator, and internal investigations, as well as in related litigation. She has more than 20 years of experience litigating in federal, state, and administrative courts, leading complex negotiations, and representing her clients in mediation. She also counsels clients regarding securities enforcement developments, trends, and risk mitigation.Before joining the firm, Haima spent nearly a decade in the SEC’s Division of Enforcement. While at the SEC, Haima served as lead counsel on a number of prominent enforcement litigations and investigations involving public companies, registered investment advisers, broker-dealers, banks, and individuals in matters arising under the federal securities laws. She has also worked closely with foreign securities regulators, numerous U.S. Attorney’s Offices, and FINRA.Haima serves on the board of trustees of the SEC Historical Society, a nonprofit dedicated to preserving the knowledge and history of financial regulation; mentors Penn State students of color who aspire to become lawyers; and is a member of the board of directors of, and a volunteer running coach for, Girls on the Run New Jersey, a nonprofit dedicated to inspiring girls to recognize their inner physical and emotional strength. She maintains an active pro bono practice.Haima has been recognized by Crain’s New York Business’ Notable Women in Law and Notable Diverse Leaders in Law; The Legal 500 USA as a recommended lawyer in Securities Litigation: Defense, Investigations and White Collar Criminal Defense, and Fintech; the Securities Docket’s Enforcement Elite; and the New York Law Journal for her efforts in the diversity and inclusion space.Haima received her J.D. from Boston College Law School and her B.A. from the Pennsylvania State University.<h4>Selected Significant Representations:</h4><h5>Cybersecurity</h5><ul><li>Successfully resolved an SEC investigation into a global technology solutions company’s cybersecurity risk disclosures and disclosure controls, policies, and procedures, with an acknowledgment by the SEC of the client’s significant remediation and cooperation.</li><li>Representing a global tech service management company in an SEC inquiry into its cybersecurity incidents and disclosures.</li><li>Represented numerous public companies and other clients in the SEC’s SolarWinds cybersecurity enforcement sweep.</li><li>Advising numerous public companies and SEC-registered firms on the efficacy of their cybersecurity disclosure controls and procedures and the materiality of cybersecurity incidents.</li><li>Represented a major technology company in an internal investigation into its cybersecurity statements and controls, policies, and procedures.</li></ul><h5>Fintech & Crypto</h5><ul><li>Represented a nonprofit foundation supporting a major blockchain, as well as two of its senior individuals, in an SEC investigation, with a complete termination letter issued by the SEC.</li><li>Successfully resolved an SEC crypto investigation into anti-money laundering and other compliance and monitoring programs on behalf a former senior bank executive.</li><li>Representing a leading cryptocurrency exchange platform in responding to SEC, CFTC, and state attorney general subpoenas and other requests for information.</li><li>Obtained a successful federal court settlement for a venture capital fund in a securities class action concerning an unregistered digital token offering.</li><li>Advising numerous Fintech companies, from startups to mature organizations, on securities enforcement compliance best practices and enforcement risk mitigation.</li><li>Represented a private investor in an SEC investigation related to a reverse merger involving a cryptocurrency company with no action taken by the SEC.</li></ul><h5>Artificial Intelligence</h5><ul><li>Representing a major tech company in an SEC investigation focused on AI-related disclosures and policies.</li></ul><h5>Accounting & Financial Reporting</h5><ul><li>Represented the former Chief Operations Officer of a major NASDAQ-listed food distributor in SEC and special committee investigations, with a complete termination letter issued by the SEC, as well as in related Delaware Court of Chancery litigation, which was favorably resolved.</li><li>Successfully resolved SEC and special committee investigations into related-party transaction disclosures and accounting issues, as well as related shareholder litigation, on behalf of a former CEO of a NASDAQ-listed company.</li><li>Represented an audit committee of a public company in an internal investigation resulting from a whistleblower complaint alleging accounting and disclosure issues.</li><li>Represented a leading public company in an internal investigation resulting from a whistleblower complaint alleging accounting and disclosure issues.</li></ul><h5>Other Securities Enforcement Matters</h5><ul><li>Represented the former CEO of a major company listed on the New York Stock Exchange in an SEC insider trading investigation with no action taken by the SEC.</li><li>Represented an individual in an SEC investigation concering the “pay-to-play” rule.</li><li>Represented a private investment fund in a COVID-19 related SEC insider trading investigation with no action taken by the SEC.</li><li>Represented a broker-dealer in a for-cause FINRA examination into anti-money laundering and other issues.</li><li>Represented a leading international company in government investigation into pharmaceutical drug pricing.</li><li>Represented a biotech company in a Massachusetts Securities Division investigation concerning securities registration exemptions and representations to investors regarding securities registration with no action taken by the state regulator.</li><li>Obtained a successful resolution for a pre-IPO biotech company in a wrongful termination lawsuit brought by a co-founder and former CEO terminated by the board of directors.</li><li>Represented the SEC in all stages of federal and administrative proceedings, including at trial and on appeal, in matters involving violations of the federal securities laws.</li></ul>

Haimavathi Marlier

Michael Birnbaum is co-head of Morrison Foerster’s New York Litigation Department and a partner in the Securities Litigation, Securities Enforcement, and White-Collar Defense Group.Michael defends and pursues claims on behalf of clients across a range of areas. Specifically, he leverages his experience as former senior trial counsel at the U.S. Securities and Exchange Commission (SEC) to provide unique insights to U.S. and global financial institutions, including commercial and investment banks, audit and accounting firms, investment advisers, broker-dealers, and securities issuers facing internal and government investigations, regulatory enforcement proceedings, and private civil litigation.Michael’s combination of public and private experience enables him to assist clients in navigating complex regulatory landscapes while often simultaneously engaging in private litigation, and to find ways to efficiently drive results on multiple fronts. Recent representations include disputes involving cryptocurrency investments and related platforms, deal-related litigation, investigations focusing on the conduct of broker-dealers and crowdfunding entities, and contested bankruptcy proceedings litigated in federal courts.A seasoned trial attorney, Michael has obtained significant results—including at trial—in matters in involving investment funds and other financial institutions concerning allegations of fraudulent securities offerings and registration violations, as well as supervisory failures related to the sale of securities. He has also achieved landmark settlements in advance of trial, including on behalf of Farmland Partners, Inc. in connection with their being the target of a short-and-distort attack arising from a defamatory article that drove down the company’s stock price by 39% in one day. As a result, Michael was recognized in The American Lawyer Litigation Daily’s “Litigators of the Week” feature, which highlights lawyers for breakthrough achievements in the nation’s most complex, highest-profile cases. He has also been recommended by leading legal rankings publications, including by The Legal 500 US in the “Securities Litigation: Defense” category.Michael is a thought leader in the securities litigation and securities enforcement space who speaks regularly on panels at major conferences, such as Practising Law Institute (PLI) and Securities Enforcement Forum-East, publishes articles relating to trending topics in these areas, and serves on the editorial board of Wall Street Lawyer.Before Morrison Foerster, Michael served in the SEC for 11 years, most recently as senior trial counsel, which informs his extensive experience overseeing securities litigation before federal and administrative courts. Throughout his tenure at the SEC, Michael worked closely with SEC investigative units, including the Asset Management Unit, the Market Abuse Unit, and the Complex Financial Instruments Unit, as well as with attorneys at various U.S. Attorney’s Offices, the Manhattan District Attorney’s Office, and foreign securities regulators on securities-related investigations and prosecutions.<h4>Selective Significant Representations</h4>Farmland Partners, Inc.<ul><li>Achieved a landmark settlement for Farmland Partners Inc. (FPI), a publicly traded farmland REIT, in a “short-and-distort” case that was prompted by a defamatory article that drove down FPI’s stock price by 39% in one day. The previously anonymous author, who wrote under the alias “Rota Fortunae,” and his clients utilized the scheme to profit from their short positions. As part of the settlement, the author acknowledged publicly that his article was full of false statements, and made a payment that was multiples of the profits he made off the scheme. Meanwhile, FPI prevailed on its defense of a class action accusing the company and principals of securities fraud.</li></ul>A Major Pharmaceutical Company<ul><li>Successfully convinced SEC not to pursue an action against pharmaceutical company following investigation into the company’s FDA-related disclosures.</li></ul>Unsecured Creditors’ Committees in Bankruptcy Proceedings<ul><li>Led investigations and drove favorable settlements in matters including Clovis Oncology, Inc. (D. Del.) and Wesco Aircraft Holdings, Inc. (S.D. Tex.) (pending approval).</li></ul>A Multinational Electronics Company<ul><li>Representation in an SEC FCPA investigation involving conduct in Latin America related to a business relationship with a company that was subsequently involved in a government corruption scandal.</li></ul>Investors in Cryptocurrency<ul><li>Advise clients regarding litigation and regulatory investigations in connection with initial coin offerings and related transactions.</li></ul>Special Purpose Acquisition Companies (SPACs)<ul><li>Represent SPACs, sponsors, and other investors in SEC investigations regarding various SPACs’ initial public offerings and de-SPAC transactions, and counsel clients engaging in such transactions regarding regulatory and litigation risks.</li></ul>Leading Crowdfunding Entity<ul><li>Representation in providing compliance advice and counsel in connection with FINRA inquiries arising from alleged unregistered securities offerings and disclosure issues.</li></ul>An International Broker-Dealer<ul><li>Representation in responding to FINRA and SEC inquiries related to the treatment of domestic and international client accounts.</li></ul>

Michael Birnbaum

Craig Martin serves as co-chair of Morrison Foerster’s Investigations + White Collar Defense and ESG + Sustainability practice groups.Craig has led dozens of internal investigations, often on behalf of audit and special committees. Though Craig most frequently assists with matters involving complex financial accounting and reporting issues, his investigations have covered a broad range of subjects, including corporate disclosures, commercial practices, scientific misconduct, commercial and foreign bribery, and misuse of company assets, among many others.In addition, Craig represents issuers involved in U.S. Securities and Exchange Commission (SEC) enforcement and U.S. Department of Justice (DOJ) investigations. Craig’s clients span various industries, including technology, healthcare and life sciences, financial services, manufacturing, real estate, and agriculture. Craig has obtained excellent results for clients, often in the wake of a serious financial accounting misstatements or disclosure failures.Craig also serves as personal counsel to executives and directors in government and internal investigations. Attuned to the scrutiny that corporate executives can face in the wake of a business setback, Craig has helped CEOs, CFOs, and general counsel successfully navigate parallel SEC, DOJ, and internal investigations.Clients have consistently praised Craig for his sound judgment, investigative experience, pragmatism, and credibility. Craig is regularly recognized by leading industry publications such as Legal 500 US in its Corporate Investigations and White Collar Defense category and Chambers USA’s (California) Litigation: White Collar Crime & Government Investigations category, where a client described Craig as “experienced, poised and patient.” He has also been named to Securities Docket’s “Enforcement Elite,” which recognizes the best securities enforcement defense lawyers in the business. In addition to representing clients, Craig served for a decade as a Firmwide Managing Partner at Morrison Foerster (2012-2022).Craig was an enforcement attorney in the SEC’s San Francisco office from 1999 to 2002. During his tenure at the SEC, he worked closely with attorneys and investigators from DOJ on both financial accounting fraud and insider trading matters. Of particular note, Craig led one of the largest insider trading cases in SEC history, in which 15 individuals were charged with illegal trading.Craig is a leading commentator on internal investigation procedures, securities litigation and enforcement, corporate governance, and compliance, and has been quoted in publications such as the Daily Journal, The Recorder, and GC Magazine. He has also been invited to speak on those topics by prominent industry organizations including the Securities Enforcement Forum, the Practising Law Institute, the Institute for Corporate Counsel, the Institute of Internal Auditors, the National Society of Compliance Professionals, and the Association of Corporate Counsel, among others.Craig earned his B.A. from the University of California, Berkeley. He received his J.D. from Stanford Law School, where he was an associate editor of The Stanford Law Review.<h4>Representative Experience</h4><ul><li>Engaged by corporate boards and management of major clients to lead investigations concerning allegations of accounting, disclosure, and commercial misconduct, including:</li><ul><li>Software company, investigating allegations of non-GAAP financial reporting misstatements.</li><li>Infrastructure construction company, investigating allegations of accounting fraud.</li><li>Software company, investigating alleged violations of the Federal Trade Commission Act.</li><li>Pharmaceutical company, investigating allegations of scientific misconduct.</li><li>Data infrastructure company, investigating allegations of financial accounting fraud.</li><li>Medical device company, investigating allegations of improper disclosures concerning defective products.</li><li>Electronics manufacturer, investigating allegations that it misled customers and violated the financial terms of contracts.</li><li>Transport network company, investigating allegations of financial accounting misconduct and whistleblower retaliation.</li><li>Cloud-based communications company, investigating allegations of financial accounting fraud.</li><li>Venture capital firm, investigating allegations that the performance of portfolio companies had been misrepresented.</li><li>Healthcare technology company, investigating allegations of financial accounting fraud, false disclosures, and commercial bribery.</li><li>Retailer, concerning allegations that finance executives had engaged in accounting misconduct.</li><li>Software company, investigating allegations of financial accounting improprieties and misstated results.</li><li>Network infrastructure company, investigating allegations of accounting fraud.</li><li>Automobile parts manufacturer, investigating allegations of accounting fraud and diversion of company assets.</li><li>Physical security company, investigating allegations of executive misuse of company funds.</li><li>Medical device company, investigating allegations of improper sales practices.</li><li>Computer networking company, investigating allegations of financial accounting fraud.</li><li>Computer hardware, networking, semiconductor, and financial companies, investigating stock option granting practices.</li></ul><li>Represented issuers in SEC and DOJ investigations, including:</li><ul><li>Semiconductor company in SEC and DOJ investigations regarding allegations of financial accounting and disclosure misconduct. The DOJ closed its investigation without taking action against our client, and the SEC resolved the matter on favorable terms.</li><li>Alternative energy company in an SEC investigation regarding the company’s accounting and reporting practices. The SEC took no action against our client.</li><li>Enterprise software company in an SEC investigation regarding alleged revenue accounting improprieties and violations of the company’s code of ethics. The SEC took no action against our client.</li><li>Enterprise software company in an SEC investigation following a multi-year restatement. The SEC resolved the case on favorable terms.</li><li>Real estate company in an SEC investigation concerning allegations of misuse of company funds and workplace misconduct. The SEC took no action against our client.</li><li>Alternative energy company in an SEC investigation following an accounting restatement. The SEC took no action against our client.</li><li>Web services provider in SEC and DOJ investigations concerning disclosures following a cybersecurity incident. The DOJ closed its investigation without taking action against our client, and the SEC resolved the matter on favorable terms.</li><li>Technology services provider in connection with an SEC investigation concerning a cybersecurity disclosure. The SEC took no action against our client.</li><li>Retailer in an SEC investigation following an accounting restatement. The SEC took no action against our client.</li><li>Cloud computing company in an SEC investigation concerning disclosures following a cybersecurity incident. The SEC took no action against our client.</li><li>Biopesticide company in an SEC investigation concerning financial accounting improprieties and a restatement. The SEC resolved the case on favorable terms.</li><li>Carrier in an investigation regarding alleged violations of the Foreign Corrupt Practices Act and other anti-bribery statutes in China, elsewhere in Asia, and Latin America. The SEC and DOJ took no action against our client.</li><li>Cybersecurity firm in an SEC investigation concerning disclosures regarding a cybersecurity incident. The SEC took no action against our client.</li><li>Network infrastructure company in an SEC investigation regarding alleged accounting improprieties following a significant restatement. The SEC resolved the matter on favorable terms.</li><li>Retailer in an SEC investigation into alleged accounting irregularities following the company’s restatement. The SEC resolved the case on favorable terms.</li><li>Pharmaceutical distributor and its executives in connection with an SEC accounting investigation. The SEC took no action against our client.</li></ul><li>Represented executives in SEC, DOJ, and Financial Industry Regulatory Authority (FINRA) investigations, including:</li><ul><li>Chief Financial Officer in connection with SEC investigation concerning IPO projections. The SEC did not charge our client.</li><li>Chief Financial Officer in connection with an SEC investigation following a technology company’s financial accounting restatement. The SEC did not charge our client.</li><li>Chief Accounting Officer in connection with an SEC investigation after a technology manufacturing company’s restatement. The SEC did not charge our client.</li><li>General Counsel and Acting CFO in connection with an SEC investigation following a software company’s restatement. The SEC did not charge our client.</li><li>General Counsel in connection with a SEC and DOJ investigations following employee benefit administration company’s restatement, disclosures, and representations to auditors. Neither the DOJ nor the SEC charged our client.</li><li>General Counsel in connection with an audit committee investigation concerning cybersecurity company’s accounting and disclosure practices. The SEC took no action against our client.</li><li>Chief Executive Officer in connection with an SEC investigation into alleged misuse of company funds. The SEC resolved the matter on favorable terms.</li><li>Multiple CEOs, CFOs, COOs, general counsel, and other executives in connection with various stock option investigations conducted by the SEC, DOJ, and boards of directors. No action was taken against our clients.</li><li>Executives in numerous insider trading investigations conducted by the SEC, DOJ, and/or FINRA.</li></ul><li>Represented bank, investment advisor, and broker-dealer clients in SEC, Federal Deposit Insurance Corporation, FINRA, Office of the Special Inspector General for the Troubled Asset Relief Program, DOJ, and private litigation matters relating to the credit crisis and mortgage‑backed securities.</li></ul>

Craig Martin

Public Company Advisory & Governance

Securities Enforcement

Securities Litigation