A Guide to Representing Parties in SEC Investigations in the Time of Coronavirus

American Bar Association | May.07.2020

As defense counsel sit home multitasking among obligations to their clients, their firms, their family, friends and community, the financial regulators and enforcers have given every indication that the quarantines required by the coronavirus pandemic will not slow their enforcement efforts. Enforcement staff continues to open new investigations and pursue existing ones. As practitioners know, investigative steps include requests for documents through voluntary requests, use of inspection powers as to regulated entities, or subpoenas, requests for voluntary interviews, and both formal and informal requests for on-the-record testimony. And defending or participating in an SEC enforcement investigation often demands an ongoing dialogue with staff, including meetings to advocate for a position, or to try to talk the staff out of a case through the Wells or pre-Wells process.

For counsel preparing to defend an investigation under the constraints of a quarantine, this Practice Point discusses what enforcement staff is doing and how counsel can best respond in order to protect his or her client’s legal position while also being mindful of personal and public health.