Tag: SEC Commissioner Caroline Crenshaw
Are meme coins securities? Corp Fin says no
Last week, Corp Fin issued a new statement providing its views on whether “meme coins” were securities or, if offered and sold, involved securities transactions. Meme coins are more like collectibles, the staff explained, with “limited or no use or functionality.” What’s more, Corp Fin concluded, “transactions in the types of meme coins described in this statement[] do not involve the offer and sale of securities under the federal securities laws.” But application of the staff’s guidance here might be trickier than it may appear at first glance: a footnote indicates that Corp Fin’s “view is not dispositive of whether a specific meme coin itself is a security or whether it is offered and sold as part of an investment contract, which is a security. A definitive determination requires analyzing the specific facts relating to the meme coin and the manner in which it is offered and sold.” According to Commissioner Caroline Crenshaw in her response statement, the staff guidance provided “an incomplete, unsupported view of the law to suggest that an entire product category is outside the bounds of SEC jurisdiction.”
Note that the SEC has announced that its Crypto Task Force will host a series of roundtables to discuss key areas of interest in the regulation of crypto assets, with the first event beginning on March 21.
Acting SEC Chair seeks a pause in SEC climate disclosure rule litigation
Yesterday, Acting SEC Chair Mark Uyeda issued a statement advising that he is requesting that the Court presiding over the SEC’s climate disclosure rule litigation not “schedule the case for argument” in order to allow time for the SEC to rethink its position. As you may know, a number of challenges to the climate disclosure rule were consolidated as State of Iowa v. SEC in the Eighth Circuit, where briefs in the case have been filed. However, for reasons explained in the Statement, Uyeda believes that the “rule is deeply flawed and could inflict significant harm on the capital markets and our economy.” As such, he said, the positions taken in the SEC’s briefs defending the SEC’s adoption of the rule are not reflective of his views. He believes that these views, particularly his concern that the SEC had no authority to adopt the rule, together with “the recent change in the composition of the Commission, and the recent Presidential Memorandum regarding a Regulatory Freeze, bear on the conduct of this litigation.” As a result, he maintains that “the Court and the parties should be notified of these changes.” Accordingly, he has directed the SEC staff to “notify the Court of the changed circumstances and request that the Court not schedule the case for argument to provide time for the Commission to deliberate and determine the appropriate next steps in these cases. The Commission will promptly notify the Court of its determination about its positions in the litigation.” Commissioner Caroline Crenshaw voiced her dissent, contending that what has really changed here has been “politics and not substance.” Does Uyeda’s move sound the death knell for the SEC’s climate disclosure rule?
Is the SEC going to revamp Reg D?
At the Northwestern/Pritzker 50th Annual Securities Regulation Institute in San Diego this week, SEC Commissioner Caroline Crenshaw gave the Alan B. Levenson Keynote Address. Her topic: exempt offerings and the private capital markets. The rapid growth of the private markets in recent decades, Crenshaw observes, has been “hotly debated”; private offerings have increased at a faster rate than public offerings, as companies delay public offerings or eschew them altogether and instead turn to the private markets to raise enormous amounts of capital, essentially through Reg D. According to Crenshaw, “Reg D, among other legal and regulatory mechanisms, has allowed for the development of pools of private capital sufficient to satisfy the needs of even the largest private issuers.” Hence the unicorn! But are these exemptions serving the purpose they were originally intended to provide? Are they providing adequate safeguards for investors? For example, should large private issuers be required to provide more disclosure? Crenshaw has some ideas for, as she characterized it, “modest reforms.”
SEC charges Kraft Heinz with improper expense management scheme
On Friday, the SEC announced settled charges against Kraft Heinz Company, its Chief Operating Officer and Chief Procurement Officer for “engaging in a long-running expense management scheme that resulted in the restatement of several years of financial reporting.” According to the SEC’s Order regarding the company and the COO, as well as the SEC’s complaint against the CPO, the company employed a number of expense management strategies that “misrepresented the true nature of transactions,” including recognizing unearned discounts from suppliers, maintaining false and misleading supplier contracts and engaging in other accounting misconduct, all of which resulted in accounting errors and misstatements. The misconduct, the SEC contended, was designed to allow the company to report sham cost savings consistent with the operational efficiencies it had touted would result from the 2015 merger of Kraft and Heinz, as well as to inflate EBITDA—a critical earnings measure for the market—and to achieve certain performance targets. And, once again, charges of failure to design and implement effective internal controls played a prominent role. After the SEC began its investigation, KHC restated its financials, reversing “$208 million in improperly-recognized cost savings arising out of nearly 300 transactions.” According to Anita B. Bandy, Associate Director of Enforcement, “Kraft and its former executives are charged with engaging in improper expense management practices that spanned many years and involved numerous misleading transactions, millions in bogus cost savings, and a pervasive breakdown in accounting controls. The violations harmed investors who ultimately bore the costs and burdens of a restatement and delayed financial reporting….Kraft and its former executives are being held accountable for placing the pursuit of cost savings above compliance with the law.” KHC agreed to pay a civil penalty of $62 million. Interestingly, this case comes on the heels of an earnings management case brought by the SEC against Healthcare Services Group, Inc. for alleged failures to properly accrue and disclose litigation loss contingencies.
Should the SEC change its approach to financial penalties?
On Tuesday, SEC Commissioner Caroline Crenshaw spoke to the Council of Institutional Investors. Her presentation, Moving Forward Together—Enforcement for Everyone, concerned “the central role enforcement plays in fulfilling our mission, how investors and markets benefit, and how a decision made 15 years ago has taken us off course.” In her view, the SEC should revisit its approach to assessing financial penalties and should not be reluctant to impose appropriately tailored penalties that effectively deter misconduct, irrespective of the impact on the wrongdoer’s shareholders. Is this a sign of things to come?
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