This article was originally published in The Colorado Lawyer, February 2014, Vol. 43, No. 2.
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The Colorado Lawyer February 2014 Vol. 43, No. 2 [Page 21] |
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Business Law
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Recent Developments in SEC Enforcement and Regulation
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by Jeffrey R. Thomas
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Business Law articles are sponsored by the CBA Business Law Section to apprise members of current substantive law. Articles focus on business law topics for the Colorado practitioner, including antitrust, bankruptcy, business entities, commercial law, corporate counsel, financial institutions, franchising, and securities law.
Coordinating Editors
David P. Steigerwald of Sparks Willson Borges Brandt & Johnson, P.C., Colorado Springs—(719) 475-0097, dpsteig@sparkswillson.com; Curt Todd, Denver—(303) 955-1184, ctodd@templelaw.comcastbiz.net (Bankruptcy Law)
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About the AuthorJeffrey R. Thomas is the founder of Thomas Law LLC in Denver. His practice focuses on securities disputes and regulation, internal investigations, civil litigation, employment law, and corporate law—(303) 898-3124, jthomas@thomaslawllc.com. | |
This article discusses recent developments in SEC enforcement and regulation, including adopted and proposed SEC rules, SEC Reports of Investigation, and SEC speeches and statements.
A number of important developments in the area of U.S. Securities and Exchange Commission (SEC) enforcement and regulation occurred in 2013.1 Among other things, the SEC continued to propose and adopt rules implementing provisions of the Dodd-Frank and JOBS Acts, issued three Reports of Investigation, and adopted a new settlement policy. This article discusses these and other highlights from 2013.
SEC Final Rules
The SEC issued or amended a number of rules during 2013. Among the most notable of these were amendments to Rules 506 and 144A, amendments to the broker-dealer rules, new rules relating to municipal advisor registration, and new identity theft red-flag rules.
Amendments to Rules 506 and 144A
On July 10, 2013, the SEC adopted amendments to Rule 506 of Regulation D and Rule 144A under the Securities Act of 1933 to implement provisions of the Jumpstart Our Business Startups Act of 2012 and the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.2 Most notably, the SEC adopted new Rule 506(c), which eliminates Rule 506’s prohibition against general solicitation, provided the following conditions are met:
1) all terms and conditions of Rule 501 and Rules 502(a) and (d) are satisfied;
2) all purchasers of securities are accredited investors; and
3) the issuer takes reasonable steps to verify that the purchasers of the securities are accredited investors.
Under the amendment, the requirement that issuers take “reasonable steps to verify” that purchasers are accredited investors is separate from and independent of the requirement that sales be limited to accredited investors, and it must be satisfied even if all purchasers happen to be accredited investors. Whether verification steps are “reasonable” is an objective determination by the issuer in the context of the particular facts and circumstances of each purchaser and transaction. Under this principles-based approach, the factors issuers should consider include the following:
1) the nature of the purchaser and the type of accredited investor the purchaser claims to be;
2) the amount and type of information the issuer has about the purchaser; and
3) the nature of the offering, such as the manner in which the purchaser was solicited to participate in the offering and the terms of the offering.
In addition to adopting a principles-based method of verification, the amendment includes the following non-exclusive list of methods that issuers may use to satisfy the verification requirement for purchasers who are natural persons:
1) if verifying on the basis of income, by reviewing copies of any Internal Revenue Service (IRS) form that reports income for the two most recent years and obtaining a written representation from the person that he or she has a reasonable expectation of reaching the necessary income level during the current year;
2) if verifying on the basis of net worth, by reviewing bank statements, brokerage statements, appraisal reports, or similar documents dated within the prior three months and obtaining a representation from the person that all liabilities necessary to make a determination of net worth have been disclosed; and
3) by obtaining written confirmation from a registered broker-dealer, an SEC-registered investment adviser, a licensed attorney, or a certified public accountant that the person has taken reasonable verification steps within the prior three months.
Notably, requiring only that a person check a box in a questionnaire or sign a form will not satisfy the verification requirement.
Importantly, issuers continue to have the ability to conduct Rule 506 offerings under Rule 506(b), which prohibits general solicitation but permits up to thirty-five unaccredited investors. Further, the new Rule does not affect Section 4(a)(2) offerings generally, which means that an issuer relying on Section 4(a)(2) outside the Rule 506(c) exemption will continue to be subject to the prohibition against general solicitation.
The SEC also adopted Rule 506(d) to disqualify issuers and other market participants from relying on Rule 506 if certain “bad actors” are participating in the Rule 506 offering. And the SEC amended Rule 144A to provide that securities may be offered pursuant to Rule 144A to persons other than qualified institutional buyers, provided that the securities are sold only to persons that the seller and any person acting on behalf of the seller reasonably believe are qualified institutional buyers.
Broker-Dealer Rules
On July 30, 2013, the SEC amended the broker-dealer reporting requirements in Rule 17a-5 under the Securities Exchange Act of 1934.3 The amendments include the following requirements:
1. A broker-dealer must file with its annual financial statements and supporting schedules either a compliance report (if the broker-dealer has custody of customer assets) or an exemption report (if the broker-dealer does not have custody of customer assets). The broker-dealer also must file a report prepared by a Public Company Accounting Oversight Board registered auditor that covers the financial information and the compliance report or exemption report, as applicable. If the broker-dealer is a member of the Securities Investor Protection Corporation (SIPC), the annual reports must be filed with SIPC, as well.
2. A broker-dealer must file a new quarterly report, called “Form Custody,” with its designated examining authority (DEA) that contains information about whether and how the broker-dealer maintains custody of its customers’ securities and cash.
3. A clearing broker-dealer must agree to allow SEC and DEA examination staff to review its audit documentation and to allow its auditor to discuss audit findings with SEC and DEA examination staff.
The effective date for the requirement to file Form Custody and the requirement to file annual reports with SIPC is December 31, 2013. The effective date for all other requirements is June 1, 2014.
Also on July 30, the SEC adopted amendments to the broker-dealer net capital rule (Rule 15c3-1), customer protection rule (Rule 15c3-3), and books and records rules (Rules 17a-3 and 17a-4).4Because a cursory discussion of those amendments would not be useful, the reader is referred to the final rule release for a detailed discussion.
Municipal Advisor Registration
On September 18, 2013, the SEC adopted rules establishing a permanent registration regime for municipal securities advisors.5 The new rules implement provisions of the Dodd-Frank Act that created a new class of regulated persons—”municipal advisors”—and made it unlawful for any municipal advisor to provide certain advice to or on behalf of or to solicit municipal entities or certain other persons without registering with the Commission. The new rules require municipal advisors to register on a staggered basis beginning July 1, 2014. A temporary registration regime, which was implemented in 2010, will remain in effect until December 31, 2014.
Although the Dodd-Frank Act defined the term “municipal advisor” broadly to include, among others, those who advise municipal entities about the issuance of municipal securities and those who solicit municipal entities for investments, the statute and the new rules contain a number of important exclusions from the definition and exemptions from the registration requirement. These include exclusions or exemptions for public officials and employees of municipal entities, registered investment advisers, and underwriters.
Identify Theft Red-Flag Rules
On April 10, 2013, the Commodity Futures Trading Commission (CFTC) and the SEC jointly issued final rules requiring certain regulated entities to establish programs to address risks of identity theft.6 The rules implement provisions of the Dodd-Frank Act, amending Section 615(e) of the Fair Credit Reporting Act of 1970 and directing the SEC and CFTC to adopt rules requiring entities that are subject to those agencies’ respective enforcement authorities to address identity theft.7
First, the rules require financial institutions and creditors to develop and implement written identity theft prevention programs designed to detect, prevent, and mitigate identity theft in connection with certain existing accounts or the opening of new accounts. The rules include guidelines to assist entities in the formulation and maintenance of programs that would satisfy the requirements of the rules.
Second, the rules establish special requirements for any credit and debit card issuers that are subject to the enforcement authority of the CFTC or the SEC to assess the validity of notifications of changes of address under certain circumstances. Compliance with the new rules is required as of November 20, 2013.
SEC Proposed Rules and Studies
In addition to adopting or amending rules, the SEC also proposed a number of rules during 2013. Among the most notable of these were rules implementing the crowdfunding provisions of the JOBS Act and amendments to the rules governing money markets. The SEC also continued to gather information relating to a possible fiduciary standard for broker-dealers.
Crowdfunding
On October 23, 2013, the SEC proposed rules to implement the crowdfunding provisions of the JOBS Act. The proposed rules include the following requirements, many of which were mandated by the JOBS Act:
1) a company would be able to raise a maximum aggregate amount of $1 million through crowdfunding offerings in a twelve-month period;
2) investors, over the course of a twelve-month period, would be permitted to invest up to:
a) the greater of $2,000 or 5% of their annual income or net worth if both their annual income and net worth are less than $100,000; or
b) 10% of their annual income or net worth, not to exceed $100,000, if either their annual income or net worth is equal to or more than $100,000;
3) certain companies, including SEC reporting companies and companies that have no specific business plan, would be ineligible to use the crowdfunding exemption;
4) securities purchased in a crowdfunding transaction could not be resold for a period of one year;
5) companies conducting a crowdfunding offering would be required to file certain information with the SEC, provide it to investors and the relevant intermediary facilitating the crowdfunding offering, and make it available to potential investors; and
6) crowdfunding transactions would be required to take place through an SEC-registered intermediary—either a broker-dealer or a funding portal.
Money Market Reform
On June 5, 2013, almost a year after former SEC Chair Mary Schapiro’s failed attempt at reform, the SEC once again proposed amendments to the rules that govern money market mutual funds under the Investment Company Act of 1940.8 The proposed rules are designed to address money market funds’ susceptibility to heavy redemptions; improve their ability to manage and mitigate potential contagion from such redemptions; and increase the transparency of their risks, while preserving, as much as possible, the benefits of money market funds.
Background. Money market funds seek to maintain a stable net asset value per share (NAV), typically $1. They do so in two ways. First, they limit their investments to short-term, high-quality debt securities that fluctuate very little in value under normal market conditions. Second, they rely on exemptions in Rule 2a-7 of the Investment Company Act that permit them to sell and redeem shares at a stable share price without regard to small variations in the values of the securities in their portfolios. Most mutual funds, by contrast, must calculate their daily NAVs based on the market values of the securities in their portfolios.
In exchange for the ability to rely on the exemptions provided by Rule 2a-7, a fund must take measures to limit deviations between the fund’s $1 share price and the market value of the fund’s portfolio. These conditions include the requirement that the fund maintain sufficient liquidity to meet reasonably foreseeable redemptions.
Rule 2a-7 also requires a fund relying on that rule to periodically calculate the market-based value of its portfolio; compare that value to the fund’s share price; and consider what action, if any, should be initiated by the fund’s board if those two values deviate by more than one-half of one percent. Possible action by a fund’s board includes re-pricing the fund’s shares, which is known as “breaking the buck.”
Proposed reform. The SEC proposed two alternatives. The first alternative would require money market funds to sell and redeem shares based on the current market-based value of the securities in their underlying portfolios—that is, transact at a “floating” NAV. The second alternative would require money market funds to impose liquidity fees if liquidity levels fall below a specified threshold, and would permit the funds to suspend redemptions—that is, “gate” the fund temporarily under the same circumstances. The SEC could adopt either alternative by itself or a combination of the two alternatives.
Broker-Dealer Fiduciary Duty
There has been much discussion for years about whether broker-dealers should be subject to a fiduciary duty standard when providing personalized investment advice about securities to retail customers. Although the Dodd-Frank Act did not create a new fiduciary duty for broker-dealers, it did require the SEC to conduct and submit a study on whether to impose a fiduciary duty and granted the SEC authority to enact rules based on the results of the study. Under that authority, the SEC conducted a study and, in January 2011, released its results.9 The study recommended a uniform fiduciary standard of conduct for investment advisers and broker-dealers when providing investment advice about securities to retail customers. It also recommended harmonization of the investment adviser and broker-dealer regulatory regimes.
On March 1, 2013, in response to criticism of the January 2011 study from two Commissioners, the SEC requested additional data and information concerning a possible fiduciary standard for broker-dealers.10 In that request, the SEC described a potential uniform fiduciary standard of conduct, as well as alternatives to such a standard. The SEC described the basic elements of these various approaches presented below.
Uniform fiduciary standard. For purposes of responding to the SEC’s request, the SEC instructed responding parties to assume that any new rules would contain the following features:
1. Any new rules would require regulated parties to:
a) disclose all material conflicts of interest;
b) deliver at the time of entry into a retail customer relationship disclosure in the form of a general relationship guide similar to Form ADV Part 2A; and
c) disclose any new conflicts at the time advice is given.
2. Conflicts arising from principal trades would be treated the same as other conflicts.
3. The transaction-by-transaction disclosure and consent requirements of Section 206(3) of the Investment Advisers Act of 194011 would not be incorporated.12
4. Sales contests would be prohibited.
5. Any new rules would impose the following minimum professional obligations:
a) suitability obligations: a duty to have a reasonable basis to believe that securities and investment strategy recommendations are suitable for at least some customer(s), as well as for the specific retail customer to whom the recommendation is made in light of the retail customer’s financial needs, objectives, and circumstances;
b) product-specific requirements: specific disclosure, due diligence, or suitability requirements for certain recommended securities products, such as penny stocks, options, debt securities and bond funds, municipal securities, mutual fund share classes, interests in hedge funds, and structured products;
c) duty of best execution; and
d) fair and reasonable compensation requirements.
6. Existing guidance and precedent under the Advisers Act regarding fiduciary duty would continue to apply to investment advisers and be extended to broker-dealers.
Alternative approaches. The SEC described the following alternative approaches:
1. Apply a uniform requirement for broker-dealers and investment advisers to provide disclosure about: (1) key facets of the services they offer and the types of products or services they offer or have available to recommend; and (2) material conflicts they may have with retail customers, without imposing a uniform fiduciary standard of conduct.
2. Apply the uniform fiduciary standard of conduct discussed above on broker-dealers and investment advisers, but without extending to broker-dealers the existing guidance and precedent under the Advisers Act regarding fiduciary duty. That guidance would continue to apply to investment advisers.
3. Without modifying the regulation of investment advisers, apply the fiduciary standard discussed above, or parts thereof, to broker-dealers. This “broker-dealer-only” standard could involve establishing a “best interest” standard of conduct for broker-dealers, which would be no less stringent than that currently applied to investment advisers under Advisers Act Sections 206(1) and 206(2), when they provide personalized investment advice about securities to retail customers.
4. Without modifying the regulation of broker-dealers, specify certain minimum professional obligations. Any rules or guidance would take into account Advisers Act fiduciary principles, such as the duty to provide suitable investment advice and to seek best execution.
5. Consider following models set by regulators in other countries, such as the United Kingdom’s Financial Services Authority, the Treasury of Australia, or the European Securities and Markets Authority.
The SEC made clear in its request that it was not committing to any particular approach. It also made clear that it could decide to take no action and allow existing regulatory requirements to continue to apply.
SEC Reports of Investigation
The SEC issued three Reports of Investigation under Section 21(a) of the Securities Exchange Act of 1934 in 2013. Section 21(a) authorizes the SEC to investigate “whether any person has violated, is violating, or is about to violate” the federal securities laws; to “publish information concerning such violations” and to “investigate any facts, conditions, practices, or matters which it may deem necessary or proper to aid in the enforcement of” the federal securities laws. This was the first time the SEC issued a so-called 21(a) Report since 2010.
Use of Social Media
On April 2, 2013, the SEC issued a 21(a) Report concerning the application of Regulation FD to corporate disclosures made through social media.13 The report arose out of an SEC investigation into whether Netflix chief executive officer Reed Hastings violated Reg FD by using his personal Facebook page to announce Netflix streaming metrics. The investigation did not result in any enforcement actions.
Reg FD prohibits public companies or persons acting on their behalf from selectively disclosing material, nonpublic information to certain securities professionals or shareholders where it is reasonably foreseeable that they will trade on that information before it is made available to the general public. Reg FD requires that companies and those acting on their behalf distribute the information in a manner reasonably designed to achieve effective, broad, and non-exclusionary distribution to the public.
In its report, the SEC made two main points. First, companies must examine communications through social media for compliance with Reg FD. Second, the principles outlined in the SEC’s 2008 Reg FD guidance14 concerning the use of websites to disseminate corporation information apply with equal force to corporate disclosures made through social media channels. Most notable, companies must ensure that the social media channel is a “recognized channel of distribution” by alerting the market to the fact that the company will use the social media channel to disseminate corporate information.
Potential Liability of Public Officials
On May 6, 2013, the SEC issued another 21(a) Report addressing the obligations of public officials relating to their secondary market disclosures for municipal securities.15 The investigation out of which the report arose resulted in settled cease-and-desist proceedings against the City of Harrisburg, Pennsylvania for violating the antifraud provisions of the Exchange Act. The SEC found that Harrisburg made public statements over a two-year period that misrepresented and omitted material information regarding Harrisburg’s deteriorating financial condition and credit ratings downgrades. During the same period, Harrisburg failed to make certain required disclosures concerning its financial condition.
In the 21(a) Report, the SEC cautioned public officials to be mindful that their public statements, whether written or oral, may affect the total mix of information available to investors and to understand that these public statements, if materially misleading, can lead to liability under the federal securities laws. Given this potential for liability, the SEC advised public officials to consider taking steps to reduce the risk of misleading investors, including adopting policies and procedures that are reasonably designed to result in accurate, timely, and complete public disclosures.
Sale of Futures Products Based on Securities Indices
Futures products based on “broad-based” securities indices—indices whose holdings are diffuse—are regulated by the CFTC. Futures products based on “narrow-based” securities indices—indices whose holdings are concentrated in a few securities—by contrast, are regulated jointly by the SEC and CFTC. The Exchange Act requires that: (1) any futures product based on a narrow-based securities index be listed on a national securities exchange or national securities association registered under the Exchange Act; and (2) any exchange that effects transactions in securities be registered as a national securities exchange or be exempt from registration.
On August 8, 2013, the SEC issued a 21(a) Report concerning violations of the foregoing requirements by Eurex, a German derivatives exchange, relating to Eurex’s sale of security futures products to U.S. investors.16 According to the report, when Eurex started selling futures on the Euro STOXX Banks Index more than ten years ago, that index was broad-based and did not trigger SEC oversight of the futures product or Eurex. When Eurex reviewed the index’s composition in 2011, however, it discovered that the index had become narrow-based approximately eighteen months earlier. Although the SEC did not bring an enforcement action against Eurex, due in part to Eurex’s substantial cooperation and remedial efforts, the SEC admonished exchanges and investment professionals to establish policies and procedures to appropriately monitor the composition of indices on which futures are based to determine whether they are offering security futures products.
SEC Statements
Statements by the SEC Chair and Commissioners often shed light on the SEC’s priorities and internal policies. Among the notable statements from 2013 were statements by Chair White concerning SEC priorities and settlement policy.
SEC Priorities
Mary Jo White was sworn in as the thirty-first Chair of the SEC on April 10, 2013. In her March 12, 2013 confirmation hearing before the U.S. Senate Committee on Banking, Housing, and Urban Affairs, White identified three early priorities for her tenure as SEC Chair.17 First, White stated that she will work to finish, in as timely and smart a way as possible, the rulemaking mandates contained in the Dodd-Frank and JOBS Acts. Regarding rulemaking generally, White made clear that she believes in the importance of rigorous economic analysis:
Although challenging—particularly in the quantification of benefits—in my view, the SEC should seek to assess, from the outset, the economic impacts of its contemplated rulemaking. Such transparent and robust analysis, including consideration of the costs and benefits, will help ensure that effective and optimal solutions are achieved without unnecessary burdens of competitive harm.
Second, White stated that she will further strengthen the SEC’s enforcement function, noting that “it must be fair, but it also must be bold and unrelenting.” Third, White stated that the SEC needs to address issues, such as high frequency trading, complex trading algorithms, dark pools, and intricate order types. To do so, she vowed to work to:
ensure that the SEC has cutting-edge technology and expertise necessary to enable it to keep pace with the markets and its responsibilities to monitor, regulate, and enforce the securities laws.
Changes to Settlement Policy
The SEC’s practice for decades has been to allow defendants to settle cases without admitting or denying liability. That practice, according to White, is going to change—at least in some cases. At a June 18, 2013 conference, White said that a new practice of forcing defendants to admit wrongdoing will be applied in “cases where . . . it’s very important to have that public acknowledgment and accountability.”
The SEC will retain its “no admit, no deny” practice for most cases. Last year, the SEC began forcing defendants who already had admitted wrongdoing in parallel criminal cases to admit liability as a condition of settlement with the SEC. Defendants are frequently reluctant to admit wrongdoing in SEC settlements, because that admission can be used in private litigation. For that reason, the SEC may be forced to take more cases to trial as a result of the new practice.
U.S. Supreme Court: Application of
the Discovery Rule to SEC Penalty Claims
The limitations period for penalty claims in SEC enforcement actions is governed by 28 USC § 2462, which states that “an action . . . for the enforcement of any civil fine, penalty, or forfeiture” must be brought “within five years from when the claim first accrued.” In Gabelli v. SEC,18 the U.S. Supreme Court held that the “discovery rule” does not apply to SEC penalty claims. That rule, which is an exception to the standard rule that a claim accrues when the plaintiff has “a complete and present cause of action,” delays accrual until a plaintiff has discovered his cause of action.
In reaching its decision, the Gabelli Court distinguished lawsuits by fraud victims, in which the discovery rule has been applied, from government enforcement actions. Unlike fraud victims who may have no reason to suspect fraud, the Court reasoned, the SEC’s very purpose is to root out fraud, and it has many legal tools at hand to aid in that pursuit. Also, the government in enforcement cases seeks a different type of relief than that sought by fraud victims. A fraud victim seeks compensation for his or her injuries, whereas the government seeks civil penalties, which go beyond compensation and are intended to punish and label defendants wrongdoers.
Conclusion
As discussed, 2013 was an active year in the area of SEC enforcement and regulation, and 2014 promises to be just as active. Developments in this ever-changing area have affected or will affect a variety of people and entities, including broker-dealers, investment companies and advisers, corporate communications departments, and entrepreneurs. Practitioners advising such clients will be well served to stay abreast of new developments.
Notes
1. The SEC is a federal agency whose mission is to protect investors; maintain fair, orderly, and efficient markets; and facilitate capital formation.
2. See SEC Release Nos. 33-9414 and 33-9415 (July 10, 2013); 17 CFR Parts 230, 239, and 242. The Securities Act of 1933 is codified at 15 USC §§ 77a et seq. The Jumpstart Our Business Startups Act, Pub. L. No. 112-106, is published at 126 Stat. 306 (2012). The Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, is published at 124 Stat. 1376-2223 (2010).
3. See SEC Release No. 34-70073 (July 30, 2013); 17 CFR Parts 240 and 249.
4. See SEC Release No. 34-70072 (July 30, 2013); 17 CFR Part 240.
5. See SEC Release No. 34-70462 (Sept. 20, 2013); 17 CFR Parts 240 and 240.
6. See SEC Release No. 34-69359 (April 10, 2013); 17 CFR Parts 162 and 248.
7. The Fair Credit Reporting Act is codified at 15 USC §§ 1681 et seq.
8. See SEC Release No. 33-9408 (June 5, 2013). The Investment Company Act of 1940 is codified at 15 USC §§ 80a-1 et seq.
9. See Staff of the SEC, “Study on Investment Advisers and Broker-Dealers” (Jan. 2011).
10. See SEC Release No. 34-69013 (March 1, 2013).
11. 15 USC §§ 80b-1 et seq.
12. Section 206(3) states:
It shall be unlawful for any investment adviser . . . acting as principal for his own account, knowingly to sell any security to or purchase any security from a client, or acting as broker for a person other than such client, knowingly to effect any sale or purchase of any security for the account of such client, without disclosing to such client in writing before the completion of such transaction the capacity in which he is acting and obtaining the consent of the client to such transaction. The prohibitions of this paragraph shall not apply to any transaction with a customer of a broker or dealer if such broker or dealer is not acting as an investment adviser in relation to such transaction.
13. See Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: Netflix, Inc., and Reed Hastings, Release No. 69279 (April 2, 2013).
14. See Commission Guidance on the Use of Company Web Sites, SEC Release No. 34-58288 (Aug. 7, 2008).
15. See Report of Investigation In the Matter of City of Harrisburg, Pennsylvania Concerning the Potential Liability of Public Officials with Regard to Disclosure Obligations in the Secondary Market, Release No. 69516 (May 6, 2013).
16. See Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: Eurex Deutschland, Release No. 70148 (Aug. 8, 2013).
17. See Testimony of Mary Jo White, Nominee for Chair of the SEC, Before the U.S. Senate Committee on Banking, Housing, and Urban Affairs (March 12, 2013).
18. Gabelli v. SEC, 2013 WL 691002 (U.S. Feb. 27, 2013).
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