National Futures Association (NFA)

A popular two-tier merger and acquisition structure may trigger certain prohibitions under the Securities Exchange Act of 1934.  In particular, this problem relates to the so-called “Burger King” structure, arising from the private equity fund acquisition of the fast-food chain by a private equity fund, and its simultaneous pursuit of a tender offer and a traditional one-step merger. 

The Burger

The SEC’s Division of Corporation Finance will consider a bar on so-called “bad actors” from private offerings before announcing rules on crowdfunding under the JOBS Act.  However, we anticipate there will be an additional delay given the turnover at the SEC and the recent departure of its Corp Fin Director. 

As you have undoubtedly heard, the SEC has

The SEC’s Division of Enforcement is performing well according to its departing director.

The soon to be ex-Enforcement Director credits this strength to his re-organization of the Division based on expertise and the tips received from whistleblowers, among other things.  The Dodd-Frank Act was the impetus for the SEC’s whistleblower program, and the SEC received over 3,000

The SEC’s Whistleblower Office received 3,001 tips last year, involving a number of different areas and from all over the United States and the world. 

The SEC views the program as a valuable tool, and believes the “bounty program”– the payment for these tips– has enhanced the disclosure and its usefulness.  This year even saw the

FINRA examiners are finding that more brokers are improperly selling securities or engaging in questionable activities outside their firms.

In fact, FINRA has been investigating and has brought a number of actions involving private securities transactions not approved by the firm.  FINRA has stated that, given the significant investor harm and firm financial liability, broker-dealers must have compliance programs designed

The receiver for a convicted fraudster and his entities will not be able to recover a $2 million donation the fraudster made to a small Minnesota college.  See Kelley v. College of St. Benedict, D. Minn., Civ.;’ No. 12-822 (RHK/LIB), 10/26/12, and http://docs.justia.com/cases/federal/district-courts/minnesota/mndce/0:2012cv00822/125281/34/.

The federal district court found that the receiver lacked the ability to bring this

The DOJ has been making increasing and aggressive use of the Financial Institutions Reform Recovery and Enforcement Act (“FIRREA”)

FIRREA was an outgrowth of the savings and loan crisis in the late 80’s and early 90’s.  The DOJ is looking to prosecute and obtain civil penalties by using this statute.  This statute allows the DOJ to bring

Incredibly over the last several years, both the DOJ and SEC have been relentless in their aggressive enforcement of the Foreign Corrupt Practices Act.  As part of this pursuit, the FCPA’s facilitation payment exception might not be as viable as it once was, thereby, defending these actions has gotten that much more complicated.

Many are suggesting

Despite recent changes to the SEC’s no admit/no deny settlement policy, FCPA defense attorneys still have options. 

As many know, the SEC will no longer allow settling defendants either to admit nor deny the SEC’s allegations when convicted on parallel criminal charges or where facts were admitted in a criminal proceeding.  In particular, defense attorneys could differentiate the SEC

Companies that acquire or invest in offshore entities or in entities that conduct business overseas may inherit FCPA risks.

Clearly, the DOJ and the SEC are viewing these transactions and the resulting combinations with a jaundiced eye.  These regulators, most likely, will begin investigations, and, possibly, commence actions.  In fact, there have been recent FCPA actions