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COVID-19 Relief Programs: Mitigating and Responding To Enforcement Risk

June 22, 2020 | Blog | By Brian Dunphy, Jane Haviland, Nicole Henry, Karen Lovitch

Since the early days of the pandemic, Mintz’s COVID-19 Compliance & Enforcement Defense Task Force has closely monitored and advised clients on the evolving COVID-19 relief programs, including those created by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The CARES Act provided for over $2 trillion in relief funds, which is the largest emergency assistance package in American history. The numerous CARES Act programs have continued to develop through, among other things, the passage of the Paycheck Protection Program and Health Care Enhancement Act, the Paycheck Protection Program Flexibility Act of 2020, and rapidly changing regulatory guidance and FAQs. As one example, the government recently wrestled with whether to make public the list of about 4.6 million entities that received more than $500 billion from the Paycheck Protection Program (PPP) under the CARES Act. After initially refusing to disclose PPP loan recipients, the Small Business Administration and Treasury Department decided to make public the names of entities that received loans larger than $150,000, as well as the dollar range of each loan.
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The American Securities Association (“ASA”), a financial industry trade association representing regional and small financial services companies, has sued the Securities and Exchange Commission (“SEC”) to prevent the SEC from using the Consolidated Audit Trail (the “CAT”) initiative to gather personal data of retail investors.
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SBA Issues Additional Guidance Regarding “Necessity” Certification Required under the CARES Act

May 13, 2020 | Blog | By Hope Foster, Karen Lovitch, Joseph Price, Sahir Surmeli

Today the Small Business Administration (SBA) issued additional guidance with respect to the “necessity” certification required under the CARES Act in connection with the Paycheck Protection Program (PPP). The relevant guidance appears in FAQ 46, and it is very good news for borrowers who received PPP loans under $2 million (together with PPP loans to affiliates, if any). The SBA, in consultation with the U.S. Department of Treasury, has determined that a safe harbor will apply with respect to SBA’s review of the certification of necessity in connection with respect to such loans. Specifically, “[a]ny borrower that, together with its affiliates, received PPP loans with an original principal amount of less than $2 million will be deemed to have made the required certification concerning the necessity of the loan request in good faith.”
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In what will likely be the first of many, the SEC brought an action against a company for false and misleading press releases related to the COVID-19 pandemic.
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Due to the economic impact of COVID-19, especially on smaller broker-dealers, FINRA will allow small firms more time to pay their Annual Assessment (comprised of the Gross Income Assessment and the Personal Assessment).
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Several State Securities Regulators continue to warn investors of investment scams involving COVID-19.
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SEC (OCIE) Issues Risk Alerts Concerning Reg. BI

April 9, 2020 | Blog | By David L. Ward

The SEC’s Office of Compliance Inspection and Examinations (OCIE) issued two risk alerts relating to Regulation Best Interest (Reg. BI).
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SEC Says No Reg. BI Extension Despite COVID-19 Concerns

April 6, 2020 | Blog | By David L. Ward

In a Statement on April 2, the Chairman of the Securities and Exchange Commission (SEC), Jay Clayton, announced that the June 30, 2020 timeline for implementation of Regulation Best Interest (“Reg. BI”) will remain.
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State Securities Regulators Adapt in Response to COVID-19

April 3, 2020 | Blog | By Pete Michaels, Michael Pastore

As financial professionals struggle to adapt during these trying times, securities regulators are also revising their processes and procedures to address the current realities of investor protection in the time of COVID-19 while being fair to the regulated entities.
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Read about Massachusetts Governor Baker’s executive order that temporarily permits Mass. Public Companies to Hold Virtual-Only Shareholder Meetings.
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Material Non-Public Information in the Time of COVID-19: SEC Warning on Insider Trading

March 30, 2020 | Blog | By Pete Michaels, Michael Pastore

On March 23, 2020 the SEC issued a statement warning about the risks of insider trading posed by the COVID-19 pandemic.
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This alert covers Governor Cuomo’s executive order allowing corporations in New York to hold virtual-only shareholders meetings in light of COVID-19.
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On March 18, 2020, the Delaware Supreme Court (the “Court”) issued a groundbreaking decision reversing the Delaware Court of Chancery’s December 2019 ruling in Sciabacucchi v. Salzberg, 2018 Del. Ch. LEXIS 578 (Del. Ch. Dec. 19, 2018), and holding that charter provisions adopted by public companies that designate a federal forum for securities claims brought pursuant to the Securities Act of 1933 (“Federal Forum Provisions”) are valid and enforceable.
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The New York City Bar Association Goes to Bat for Compliance Officers

February 13, 2020 | Blog | By Michael Pastore, Jason Burrell

The New York City Bar Association Compliance Committee (“Committee”) recently issued a report encouraging financial regulators to provide a clear framework for when compliance officers may be held personally liable for the misconduct of their employing institutions.
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Massachusetts Securities Division Expands Jurisdiction to Non-Securities

February 10, 2020 | Blog | By Pete Michaels, David L. Ward

The Enforcement Section of the Massachusetts Securities Division (“MSD”) recently filed an Administrative Complaint against Ryan Patrick Skinner (“Skinner”) and related entities Summit Financial Partners and Summit Financial Ptrs Inc of Woburn, MA (together, “Summit”). 
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You’ve Got Mail! Emails May Be Subject to Stockholder Books and Records Requests

June 10, 2019 | Blog | By Zachary Liebnick, Zane Polston

Delaware corporations have always been required to provide certain information to their stockholders under Section 220 of the Delaware General Corporation Law (DGCL), but the scope and form of that information  has naturally changed as technology advances.  A recent expansion of the type of documents that corporations may be required to provide occurred in a recent case in which the Delaware Supreme Court held in KT4 Partners LLC v. Palantir Technologies, Inc., that a corporation may be required to produce emails and other electronically stored records at the request of stockholders who bring books and records requests under Section 220.
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The U.S. Supreme Court’s recent decision in Kokesh v. SEC imposes a five-year statute of limitations on agency-sought disgorgement in SEC enforcement actions, resolving a Circuit split and definitively categorizing disgorgement as a statutory “penalty” under 28 U.S.C. § 2462.
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U.S. IPO Market: Can We Bounce Back From Two Slow Years?

May 17, 2017 | Blog | By Megan Gates, Sahir Surmeli

The U.S. IPO market began 2017 with a solid start, with 25 IPOs raising nearly $10 billion in the first quarter and another 31 IPOs in the second quarter through May 15.
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