U.S. Securities and Exchange Commission building. Photo: Diego Radzinschi/ALM

The U.S. Securities and Exchange Commission filed 33 percent fewer enforcement actions against public companies in fiscal year 2017 as compared to the previous year, according to a new report on SEC data.

And SEC monetary penalties dropped dramatically in 2017—from $1 billion in the first half of the year, to $196 million in the second half, according to the report, “SEC Enforcement Activity: Public Companies and Subsidiaries, Fiscal Year 2017 Update.”

The declines “coincide with the change in SEC leadership” under the Trump administration, said David Marcus, co-author of the report. “But it is too early to tell if this [enforcement lull] is a trend under the new leadership, or just due to the transition period.”

Marcus is senior vice president and head of the finance practice at Cornerstone Research, a business and legal consultancy. The study analyzes data from a securities database created by the Pollack Center for Law & Business at New York University in cooperation with Cornerstone. The report is the work of three experts from Cornerstone and two from the Pollack Center, including center director and NYU law professor Stephen Choi.

Marcus said the sudden decline in enforcement actions caught him by surprise. He said he had watched the number of actions increase each year over the past three years, and in the first half of 2017, it looked like that trend was continuing. However, in the second half of this period, “it all stopped,” he said.

The report shows 42 actions were filed in the first half of FY 2017, which included at least three months while the Obama administration was still in office. But then there were only 17 actions filed in the second half of the year.

Part of the trend involved actions under the Foreign Corrupt Practices Act. The report showed 10 FCPA actions filed against public company-related defendants in FY 2017, but only two of those were filed since February. Marcus said he “would like to get a better handle” on whether the number of actions in the second half represent a historical low.

“It will be interesting to see where [the numbers] go over the next several months and years,” he added.

The low number of actions doesn't mean that general counsel can be less vigilant, Marcus said, especially in areas that seem to be a high priority for the SEC. The most frequent problem areas cited in the study are reporting and disclosure matters.

One would think this new, more business-friendly SEC would generate warmer relations with corporate defendants. But a sense of goodwill did not seem to extend to cooperation on cases.

The report showed that between the first half and second half of FY 2017, the percentage of public company-related defendants that cooperated with the SEC dropped, from 63 percent to 32 percent. Marcus cautioned that the sample size was small in the second half and that it remains to be seen where these numbers will go.

The study also found:

• Actions against companies in the finance, insurance and real estate industry division accounted for 42 percent of all public company-related actions in the year, the highest percentage for any industry.
• Some 98 percent of public company-related actions (61 of 62 actions) were resolved on the same day they were initiated. The FY 2010-FY 2016 median was 90 percent.
• The largest monetary settlement between the SEC and a public company during the period was a $236 million deal with Teva Pharmaceutical Industries last December. It was part of a $519 million criminal and civil FCPA settlement involving both the SEC and the U.S. Department of justice.

U.S. Securities and Exchange Commission building. Photo: Diego Radzinschi/ALM

The U.S. Securities and Exchange Commission filed 33 percent fewer enforcement actions against public companies in fiscal year 2017 as compared to the previous year, according to a new report on SEC data.

And SEC monetary penalties dropped dramatically in 2017—from $1 billion in the first half of the year, to $196 million in the second half, according to the report, “SEC Enforcement Activity: Public Companies and Subsidiaries, Fiscal Year 2017 Update.”

The declines “coincide with the change in SEC leadership” under the Trump administration, said David Marcus, co-author of the report. “But it is too early to tell if this [enforcement lull] is a trend under the new leadership, or just due to the transition period.”

Marcus is senior vice president and head of the finance practice at Cornerstone Research, a business and legal consultancy. The study analyzes data from a securities database created by the Pollack Center for Law & Business at New York University in cooperation with Cornerstone. The report is the work of three experts from Cornerstone and two from the Pollack Center, including center director and NYU law professor Stephen Choi.

Marcus said the sudden decline in enforcement actions caught him by surprise. He said he had watched the number of actions increase each year over the past three years, and in the first half of 2017, it looked like that trend was continuing. However, in the second half of this period, “it all stopped,” he said.

The report shows 42 actions were filed in the first half of FY 2017, which included at least three months while the Obama administration was still in office. But then there were only 17 actions filed in the second half of the year.

Part of the trend involved actions under the Foreign Corrupt Practices Act. The report showed 10 FCPA actions filed against public company-related defendants in FY 2017, but only two of those were filed since February. Marcus said he “would like to get a better handle” on whether the number of actions in the second half represent a historical low.

“It will be interesting to see where [the numbers] go over the next several months and years,” he added.

The low number of actions doesn't mean that general counsel can be less vigilant, Marcus said, especially in areas that seem to be a high priority for the SEC. The most frequent problem areas cited in the study are reporting and disclosure matters.

One would think this new, more business-friendly SEC would generate warmer relations with corporate defendants. But a sense of goodwill did not seem to extend to cooperation on cases.

The report showed that between the first half and second half of FY 2017, the percentage of public company-related defendants that cooperated with the SEC dropped, from 63 percent to 32 percent. Marcus cautioned that the sample size was small in the second half and that it remains to be seen where these numbers will go.

The study also found:

• Actions against companies in the finance, insurance and real estate industry division accounted for 42 percent of all public company-related actions in the year, the highest percentage for any industry.
• Some 98 percent of public company-related actions (61 of 62 actions) were resolved on the same day they were initiated. The FY 2010-FY 2016 median was 90 percent.
• The largest monetary settlement between the SEC and a public company during the period was a $236 million deal with Teva Pharmaceutical Industries last December. It was part of a $519 million criminal and civil FCPA settlement involving both the SEC and the U.S. Department of justice.