The SEC's New Enforcement Manual: What You Need to Know

Wednesday, November 5, 2008

The Securities and Exchange Commission has just published on its web site its new "Enforcement Manual" that for the first time publicly discloses the internal policies and procedures that guide its investigations. This comprehensive publication identifies the decision-makers and the factors they consider at each stage of the investigative process, and reveals particular requests and presentations counsel can make to proactively represent a client's interests. The Manual also provides numerous policy benchmarks that will promote consistency and predictability across the SEC's enforcement program and that counsel can credibly point to in dealing with the staff.

Please join Mayer Brown partners Stephen J. Crimmins, former Deputy Chief Litigation Counsel of the SEC's Enforcement Division, and Jeffrey F. Robertson as they discuss and provide insight into the new manual.

Topics to be addressed include:

  • New opportunities for discovery of the SEC staff's investigative file before making a "Wells" submission urging the Commission not to accept a staff recommendation for enforcement action.
  • The significance of enhanced review in Washington of staff decisions to begin an investigation and to issue a Wells notice advising of possible enforcement action, and procedures for communicating with senior SEC staff.
  • The new focus on monitoring the status of investigations to appropriately allocate enforcement resources.
  • Decisions to close investigations early when it becomes apparent no enforcement action will be taken, and to issue "termination letters" to all individuals and entities who ask for them.
  • Prohibition on requests for attorney-client privilege waivers, and evolving concepts of "credit for cooperation" in SEC investigations.
  • New protections, including "witness assurance letters," privilege reservations for production of unreviewed documents, and "confidentiality agreements" with the staff.
  • Coordination between the SEC and criminal prosecutors, state and foreign regulators, and SROs.

Read the recent article written by Stephen J. Crimmins and Jeffrey F. Robertson on the analysis of the new SEC Enforcement Manual. The article appeared in BNA's Securities Regulation & Law Report on October 20, 2008.

Stephen J. Crimmins - Washington DC
Jeffrey F. Robertson - Washington DC

Related Materials
Presentation Slides (PDF)
Full Presentation(WebEx)
What's Important in the New SEC Manual (Article)