Author Archives: Allison Caffarone

Sustainable Finance and ESG reporting – EU pushing ahead, SEC cautious

by Dr. Katja Langenbucher

The market for “sustainable finance” has grown exponentially over the last few years.  The term usually denotes investment approaches that consider environmental, social and governance factors (“ESG”) in portfolio selection and management.  Following up on the Paris Agreement of 2016, the European Union has ambitious plans to mobilize private capital for contribution to sustainability concerns such as climate change and pollution.

In January 2018, the EU High-Level Expert Group on Sustainable Finance published its final report. [1]  It suggests focusing on common taxonomy and standards, investor duties, transparency of asset managers, governance of companies, and enhanced powers of the European Supervisory Authorities.  In March 2018, the European Commission went ahead with an action plan, announcing a number of short and long-term legislative steps that should be taken. Continue reading

Virtual Currencies, Manipulation, Cooperation, and More: CFTC Enforcement Division’s 2018 Annual Report

by Nowell Bamberger, Robin Bergen, and Emily Michael

On November 15, 2018, the Division of Enforcement (the “Division”) of the U.S. Commodity Futures Trading Commission (“CFTC”) released its Annual Report on the Division of Enforcement (PDF: 1.95 MB) (the “Report”), highlighting the enforcement division’s recent initiatives and reinforcing its focus on cooperation and self-reporting.  The Report provides a succinct overview of the Division’s enforcement priorities over the last year, discusses its overall enforcement philosophy, sets out key metrics about the cases brought in the last year, and highlights its key initiatives for the coming year.  While the Division’s priorities—preserving market integrity, protecting customers, promoting individual accountability, and increasing coordination with other regulators and criminal authorities—do not mark a departure from prior guidance, the Report does highlight the Division’s particular focus on individual accountability and a few target areas of enforcement.  Continue reading

SEC Debuts Roadmap for Resolving Illegal ICOs

by Joseph A. Hall, Michael Kaplan, Edmund Polubinski III, Byron B. Rooney, and Ryan Johansen 

In a pair of settled enforcement actions announced on November 16 in which it concluded that initial coin offerings conducted by Paragon Coin, Inc. (PDF: 232 KB) and AirFox (PDF: 223 KB) were illegal unregistered securities offerings, the SEC imposed an agreed-upon remedy that it will likely seek to use as the template for resolving its backlog of investigations into recent ICOs. Significantly, both ICOs took place after the SEC issued its July 2017 Section 21(a) report (PDF: 168 KB) addressing a crypto-token offering by The DAO, where the SEC warned the market (PDF: 169 KB) that some ICOs may violate the federal securities laws.

Neither Paragon nor AirFox agreed to conduct a “rescission offer” whereby the company would offer to repurchase the illegally offered tokens and any investor who declined the offer would retain freely tradable tokens (a remedy that Google undertook shortly after its IPO in order to resolve claims that certain pre-IPO compensatory equity grants were made in violation of the registration provisions of the Securities Act of 1933). Instead, each company agreed to distribute a “claim form” to all token purchasers offering return of the consideration paid, plus interest, in exchange for tender of the tokens, or offering damages to token purchasers who no longer hold their tokens. Purchasers of tokens located outside the United States are apparently not excluded from participation. Each company was also fined $250,000 and required to register its token as a security and become an SEC-reporting company for at least one year. Continue reading

Enforcement Trends at the CFTC

by James McDonald

November 14, 2018 – 7:00 p.m.
NYU School of Law:  Program on Corporate Compliance & Enforcement
As Prepared for Delivery


Thank you for that introduction.  I’m happy to be back here at NYU as part of the Program on Corporate Compliance & Enforcement (PCCE).  Over the years, the PCCE has brought together some of the best thinking in the enforcement, business, and academic community to develop a richer and deeper understanding of the causes of corporate misconduct, and how enforcement and compliance programs can most effectively deter it.  The result is that the work here at the PCCE has been a driver of some of the most significant developments in Enforcement and Compliance.   

We’ve followed these developments closely at the Commodity Futures Trading Commission (CFTC).  At every stage of our agency’s history, we’ve sought to bring impactful enforcement actions in the markets we regulate, and to ensure we stand ready to meet the challenges presented as these markets continue to evolve.  Our most recent challenges have included responding to the dramatic expansion of our jurisdiction under Dodd-Frank in the wake of the financial crisis.  Under David Meister, the first post-Dodd-Frank Director of Enforcement, the Division literally wrote the rules that set out some of our new enforcement jurisdiction.  With the next Director, Aitan Goelman, the Division brought first-of-their-kind cases under these new rules.  And under both Directors’ leadership, we began to define our major priorities and to develop some of the initiatives we rely on today, like the Division’s cooperation program.  Thanks to their hard work and that of the dedicated career civil servants who staff the Division, we’re well positioned today to continue to build on those priorities and initiatives.  As part of that effort, we’re constantly surveying the enforcement world to identify best practices and to incorporate them into our program.  Continue reading

National Bank Supervision Manual

by Sullivan & Cromwell LLP

OCC’s New and Revised Sections of Policies and Procedures Manual Relating to Enforcement Actions Suggest Continued Heightened Interest in Actions Against Individuals


Historically, the Office of the Comptroller of the Currency (the “OCC”) has applied a single set of internal policies and procedures to enforcement actions brought against individuals (institution-affiliated parties (“IAPs”)) and institutions (national banks, federal savings associations, and federal branches and agencies of foreign banks (collectively, “banks”)).  On November 13, the OCC issued a new section to its Policies and Procedures Manual (“PPM”) specific to enforcement actions against IAPs (the “IAP PPM”)[1] and simultaneously updated the existing sections for Bank Enforcement Actions and Related Matters (the “Bank PPM”)[2] and for Civil Money Penalties (“CMPs”) (the “CMP PPM”).[3]  The new IAP PPM generally breaks no new ground, and most changes to the Bank PPM and CMP PPM align those two sections with, and reflect the issuance of, the IAP PPM.  There are, however, several notable additions and modifications to the new and revised sections that serve to improve the clarity and transparency of the OCC’s enforcement action process. 

Beyond those distinctions, the issuance of a standalone IAP PPM suggests a continued, if not increased, focus by the OCC on actions against IAPs going forward, and is consistent with the broader theme, evidenced over the last several years, of regulatory and law enforcement focus on holding individuals accountable in cases of financial institution wrongdoing.[4]  The new OCC IAP PPM suggests a continual focus on holding individuals accountable for corporate misconduct in the financial industry. Continue reading

Do DOJ Policy and ISO Compliance Standard Overlap; and What Are the Pros and Cons For Applying the ISO Standard?

by Daniel Lucien BÜHR

In February 2017, the Fraud Section of the United States Department of Justice’s Criminal Division published a document entitled “Evaluation of Corporate Compliance Programs.” This document lists the assessment criteria for effective corporate compliance programs. The DOJ recognises that each company’s risk profile and the solutions it adopts to reduce risks should be evaluated on their own merits. The DOJ therefore tailors its determination to each case. However, even tailored determinations raise many of the same questions. The DOJ document explains the questions the DOJ may ask about a corporate compliance program. However, it gives no guidance on how companies can actually provide the right answers.

In December 2014, the International Organization for Standardization published ISO International Standard 19600 – Compliance management systems – Guidelines, which helps organisations establish, develop, implement, evaluate, maintain and improve an effective and responsive compliance management system. It is the first international standard on state-of-the-art compliance management and provides the conceptual basis for other international standards, such as ISO 37001 – Anti-bribery management systems.

The DOJ document and ISO Standard 19600 differ, yet they have a shared preventive goal. A comparison between the DOJ document and the ISO Standard 19600 shows that US policy and the Standard are largely compatible, and that ISO 19600 is an appropriate tool for companies to get to a level of compliance management that allows them to provide the right answers to the DOJ’s questions, should that be necessary: Risk and Compliance Management (PDF: 296 KB). The table in the comparison illustrates the overlap between the DOJ and ISO guidance; the flowchart opposite the table illustrates the iterative “plan-do-check-act” management system that the Standard advocates. The colour scheme of both graphics indicates the topical overlap. Continue reading

SEC Charges “ICO Superstore” as Unregistered Broker-Dealer

by John J. Sikora, Jr., Stephen Wink, Douglas K. Yatter, and Naim Culhaci

The settled order is the first SEC action charging a seller of digital tokens as an unregistered broker-dealer.

On September 11, 2018, the U.S. Securities and Exchange Commission (SEC) announced a settled order instituting cease-and-desist proceedings and imposing remedial sanctions against TokenLot LLC (TokenLot), a self-described “ICO Superstore,” and its owners in connection with their sales of digital tokens to the general public through a website.[1] The SEC found that TokenLot and its owners acted as unregistered broker-dealers in violation of Section 15(a) of the Securities Exchange Act of 1934 (Exchange Act) and engaged in unregistered securities offerings in violation of Section 5 of the Securities Act of 1933 (Securities Act). Continue reading