WilmerHale attorneys Randall R. Lee and Timothy C. Perry argue that because the SEC conducts quasi-criminal investigations and seeks quasi-criminal penalties, it should adopt the Brady standard and turn over to the accused all favorable evidence as a matter of policy.
In recent years, the SEC has steadily increased the number and variety of its enforcement actions and the severity of the sanctions it seeks.1 Meanwhile, the SEC has subtly ramped up its rhetoric, portraying its Enforcement Division as ''a cop on the beat, and . . . a tough cop to boot."2 The SEC proclaims itself ''[f]irst and foremost'' a ''law enforcement agency,'' ''prosecuting'' securities cases and working ''closely with law enforcement . . . to bring criminal cases.''3
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Originally published in Bloomberg BNA, The United States Law Week Case Alert & Legal News Report, 1/27/15
Footnotes
1 Mary Jo White, Chair, U.S. Sec. & Exch. Comm'n, Speech at the IOSCO 39th Annual Conference: The Challenge of Coverage, Accountability and Deterrence of Global Enforcement (Oct. 2, 2014), http://www.sec.gov/News/Speech/Detail/Speech/ 1370543090864.
2 Daniel M. Gallagher, Commissioner, U.S. Sec. & Exch. Comm'n, Remarks at FINRA Enforcement Conference (Nov. 7, 2013), http://www.sec.gov/News/Speech/Detail/Speech/ 1370540310199. Moving beyond metaphor and into policy, the Chairwoman has espoused a ''broken windows'' approach to securities enforcement, aligning herself with former New York Mayor Rudy Giuliani in a no-offense-is-too-small style of policing. Mary Jo White, Chair, U.S. Sec. & Exch. Comm'n, Remarks at the Securities Enforcement Forum (Oct. 9, 2013), http://www.sec.gov/News/Speech/Detail/Speech/ 1370539872100.
3 See, About the SEC, U.S. SEC. & EXCH. COMM'N, http:// www.sec.gov/about/whatwedo.shtml (last visited Dec. 19, 2014) (''First and foremost, the SEC is a law enforcement agency. The Division of Enforcement assists the Commission inin executing its law enforcement function by recommending . . . investigations of securities law violations . . . and by prosecuting these cases on behalf of the Commission. As an adjunct to the SEC's civil enforcement authority, the Division works closely with law enforcement agencies in the U.S. and around the world to bring criminal cases . . . .'') (emphasis added).
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