SEC Compliance Lawyer
Former U.S. Attorneys Experienced in All Areas of SEC Compliance and Enforcement
Compliance with the laws and regulations enforced by the U.S. Securities and Exchange Commission (SEC) is imperative for both private and public companies. While most people are familiar with the SEC’s oversight of the public securities markets in the United States, private companies have compliance obligations as well, and those that fail to meet these obligations can face charges ranging from selling unregistered securities in unlawful private placements to investor fraud.
Areas of SEC Compliance
Our firm represents private and public companies in all areas of SEC compliance. All of our lawyers have senior-level experience, and several of our SEC compliance attorneys are former U.S. Attorneys or Assistant U.S. Attorneys who previously prosecuted securities fraud cases on behalf of the federal government. With deep knowledge of the laws and regulations falling within the SEC’s enforcement jurisdiction, our SEC compliance attorney offers practical, efficient, and custom-tailored advice for all matters that are subject to the SEC’s oversight. This includes matters in the areas of:
- Private Placements – We assist clients with preparing and negotiating private placement memoranda and private investments in public equity (PIPEs). We assist with meeting all other requirements for obtaining registration exemptions and conducting private equity transactions as well.
- Registration Exemptions – Along with private placements, private companies can obtain registration exemptions in various other circumstances. We help our clients evaluate their options, make informed decisions, and comply with all SEC requirements.
- SEC Registration and Filings – Much of our SEC compliance practice is devoted to guiding companies through the registration process and assisting with their public filings. Whether your company is considering an initial public offering (IPO) or needs outside counsel for ongoing compliance, we can help.
- Corporate Finance Controls – Companies that are subject to the SEC’s oversight must maintain strict corporate finance controls. We help our clients put the necessary controls in place and then maintain, monitor, and enforce compliance on an ongoing basis.
- Marketing and Sales Practices – Companies must be very careful when marketing their securities offerings. Our SEC compliance attorney works closely with our clients’ marketing executives and other key stakeholders to ensure compliance.
- Social Media Compliance – Social media compliance is a growing area of concern for both private and public companies. We advise our clients regarding when they can make public statements online, and we help them craft posts that satisfy their compliance obligations.
- Insider Trading and Conflicts of Interest – While insider trading is a criminal offense, corporate insiders can lawfully trade the company’s stock under various circumstances. We assist our clients with preparing pre-arranged trading plans and addressing perceived conflicts of interest and other issues that have the potential to lead to SEC scrutiny.
- Mergers and Acquisitions – Prior to conducting mergers and acquisitions, public companies must ensure that their proposed deals do not run afoul of federal securities and antitrust laws (such as the Securities Act of 1933 and the Securities Exchange Act of 1934) or SEC regulations. We guide our clients through all aspects of federal M&A compliance and shepherd our clients’ deals to closing.
- Cryptocurrency, Mobile Trading, and Other Innovations – Cryptocurrencies, initial coin offerings (ICOs), mobile trading apps, and various other innovations have federal securities law implications. Our firm works with companies in all industry sectors to help them establish, maintain, and prove compliance with the SEC.
Common SEC Compliance Concerns
Within these and other areas, our SEC compliance lawyers regularly consult with company founders, executives, board members, and in-house lawyers on a broad range of issues. While much of our SEC compliance services practice involves assisting companies with developing, implementing, and managing their compliance programs, we also provide ongoing advice as needed. This includes providing advice in common areas of concern such as:
- Analyzing the impact of statutory enactments and regulatory reforms
- Analyzing proposed securities and corporate transactions
- Analyzing the need for SEC filings and other disclosures
- Preparing SEC filings, press releases, and public statements in response to events impacting companies’ securities
- Addressing board and committee compliance matters, including matters involving personal trading and communications with regulators or exchanges
- Regulation Fair Disclosure (Regulation FD) compliance
- Selecting independent auditors and dealing with audit-related matters
- Communicating with SEC staff regarding compliance concerns, inquiries, and investigations
- Drafting requests for no-action letters and exemptive letters addressed to SEC staff
Elements of an Effective SEC Compliance Program
For companies that are subject to federal securities laws and regulations, maintaining an effective SEC compliance program is essential. Implementing a comprehensive and custom-tailored program not only sets the stage (and the expectation) for company-wide compliance, but it also allows companies to demonstrate their good-faith compliance efforts to the Securities and Exchange Commission when necessary. Based on guidance from the SEC and the DOJ, necessary elements of an SEC compliance program include (but are not necessarily limited to):
Compliance Risk Assessment
Implementing an effective SEC compliance program starts with understanding the company’s specific compliance risks. We conduct confidential and attorney-client privileged compliance risk assessments focused on comprehensively identifying the scope of our clients’ compliance obligations with the SEC.
Senior Management Commitment to Compliance
The SEC expects companies to take a top-down approach to compliance. This starts with a documented commitment to compliance from the company’s senior management team.
Code of Conduct and Compliance Policies and Procedures
All companies need to adopt a Code of Conduct and a set of policies and procedures focused specifically on compliance with the SEC. These documents must reflect the company’s specific risks and speak to the company’s specific industry, culture, and financial goals.
Companies need to ensure that they have effective oversight of their SEC compliance efforts. Among other things, this involves appointing a compliance officer and team, and ensuring that these individuals have appropriate access to (and authority over) all pertinent areas of the business’s operations.
Personnel Training (Initial and Ongoing)
Beyond the compliance team, all personnel should receive appropriate training on relevant areas of compliance with the SEC. This includes both initial and ongoing training, and companies should maintain documentation of all completed training programs.
Discipline and Incentives
Discipline and incentives are effective—and necessary—tools for internal SEC compliance enforcement. Companies should adopt and consistently enforce appropriate disciplinary mechanisms, and they should consider offering incentives to personnel who meet or exceed their personal responsibilities in the compliance arena.
Third-Party Due Diligence
When outsourcing business operations to third-party vendors, companies that are subject to the SEC’s oversight must ensure that their vendors do not present compliance risks. This begins with conducting thorough due diligence, and it continues with strategic contract negotiations and ongoing auditing and enforcement.
Internal Reporting and Investigations
Companies should have documented internal mechanisms for employees to report compliance-related concerns. This includes establishing a hotline or other mechanism that employees can use to share information confidentially. When companies learn of potential compliance violations to the SEC, they should investigate promptly, and the scope of the investigation should be proportional to the severity of the issue and the potential risks involved.
Internal Auditing and Remediation
Internal auditing is fundamental to effective SEC compliance management. Companies need to identify issues proactively, and they must take steps to remediate issues before facing SEC scrutiny. In addition to assisting our clients with developing and implementing their SEC compliance programs, we also provide ongoing compliance auditing and consulting services.
FAQs: SEC Compliance for Public and Private Companies
How Important is SEC Compliance?
SEC compliance is extremely important. The SEC vigorously enforces companies’ and individuals’ compliance obligations, and non-compliance can lead to administrative enforcement action or civil or criminal prosecution. Companies can face loss of registration, fines, and injunctions, while individuals can face fines and the possibility of prison time in criminal cases.
How Does the SEC Monitor Compliance?
The SEC monitors compliance through various means. In addition to reviewing companies’ public filings, the SEC also examines media sources (including social media) and relies on tips from whistleblowers and other federal agencies.
Do Companies Need to Engage Outside Counsel for SEC Compliance?
Most companies will need to engage outside counsel for SEC compliance. This is an extremely complex and dense area of the law, and most companies do not have internal personnel with the knowledge (or time) needed to effectively develop, implement, and maintain an SEC compliance program.
How Often Do Companies’ SEC Compliance Obligations Change?
Companies’ SEC compliance obligations change more often than you might expect. Protecting Main Street investors is a continuing priority for Congress and the SEC, and they regularly enact rules and regulations that have direct implications for private and public companies.
How Can I Make Sure My Company’s SEC Compliance Program is Adequate?
If your company has an existing SEC compliance program, ensuring that your company’s program is adequate will involve conducting a comprehensive internal compliance risk assessment. At Oberheiden P.C., we routinely assist companies with this process, and we can assist with determining what updates or modifications (if any) are needed.
Speak with an SEC Compliance Attorney at Oberheiden P.C.
If you would like to know more about our SEC compliance practice, we encourage you to get in touch. To speak with an SEC compliance lawyer at Oberheiden P.C. in confidence, please call 888-680-1745 or tell us how we can contact you online today.