SEC Takes Harder Line on Enforcement

Terry Flanagan

The U.S. Securities and Exchange Commission is taking a more aggressive posture with regard to prosecuting financial crime cases, from using technology for flagging potential insider trading to beefing up its enforcement staff.

The agency has ratcheted up its enforcement of insider trading, which is more difficult to prosecute but also carries much higher consequences for the integrity of the financial system.

“The SEC has grown sophisticated because the threats that the SEC and obviously the investing public has faced have become more sophisticated,” George Kostolampros, a partner in the law firm McKenna Long & Aldridge, told Markets Media. “Insider trading cases now have morphed into something much more sophisticated, where you see the SEC now focusing on dark pools.”

As a former senior counsel in the Division of Enforcement of the SEC, Kostolampros investigated accounting fraud, improper mutual fund trading, market manipulation, FCPA violations and other conduct.

Under former chairman Mary Schapiro, pursuing violations related to the financial crisis was one of the SEC’s key priorities. But after successfully addressing such misconduct over the last five years, it now have shifted our attention under current chairman Mary Jo While to other areas and redeployed its resources accordingly.

“The rules and the laws that are in place are there to enforce against anyone who is committing any sort of violation of the securities law,” said Kostolampros. “The SEC has grown in its size, and also grown more sophisticated. There will always be those bread and butter cases, the pump and dump cases, even the Ponzi scheme cases, but there are much more sophisticated cases that are being brought to bear.”

Over the last five years, the SEC filed insider trading actions against more than 570 individuals and firms, often as a result of have learned of this misconduct through surveillance referrals from Finra and ORSA.

“We also have been focused on using technology to improve our ability to detect and investigate fraud,” SEC enforcement chief Andrew Ceresney said in a speech in May. “With the increased complexity of the markets, and of schemes more generally, as well as the proliferation of big data, we need to better harness technology in order to keep up with wrongdoers.”

Ceresney’s predecessor, Robert Khuzami, brought in many former prosecutors, beefing up the trial division.

“If you looked at the past five years, six years, you would have seen a focus on cases that stem from the financial crisis,” said Kostolampros. “Obviously cases that stem from what happened with Madoff and Stanford, because the SEC didn’t want to get stuck with another black eye for missing a Ponzi scheme.”

Khuzami created five specialized units relating to areas of significant concern: Asset Management, Municipal Securities and Public Pensions, FCPA, Complex Financial Instruments, and Market Abuse. The idea was to build expertise and knowledge in each of these areas, and to have unit personnel solely focused on making cases.

For example, a program was launched that identifies aberrant returns in investment funds, which often can signify misconduct. The SEC has brought a number of cases identified through this initiative and continues to expand its application as it receives and processes new fund data.

“These units were designed not just to eat a piece of the “enforcement pie” – by working on cases that we otherwise would have brought – but to make the pie bigger by creating initiatives to examine practices that may not have in the past received sufficient attention and bringing cases for violations related to those practices,” Ceresney said.

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