Settlements are an efficient tool for the SEC and market participants to resolve enforcement investigations without the expense and distraction of litigation for the parties involved. More broadly, settlements also serve as a tool for the SEC to send cautionary signals to the market about evolving regulatory expectations and enforcement priorities. However, the SEC's approach to settlements periodically draws certain criticism of what is described as "regulation by enforcement." Embedded in the "regulation by enforcement" criticism is the notion that the SEC at times seeks to expand regulatory requirements and thus affect market participant behavior through settlements instead of through the proper rulemaking channels (or through judicial adjudication). The SEC itself has long acknowledged its ability to affect market participant behavior through settlements; for instance, as a former SEC Commissioner aptly noted in a 2009 speech, while the "shadow common law" of SEC settlements is not "of the same effect as judicial precedent, settlements … affect not just the parties, but influence the conduct of other companies" and other market participants.

The SEC has recently shown a willingness to affect market participant behavior through settlements in novel areas. While these settlements have drawn the "regulation by enforcement" criticism, Chair Gary Gensler has a ready response: "I just call it enforcement." To the extent settlements in novel areas will continue to be actively pursued as enforcement tools, it is worth discussing certain SEC settlements in novel areas that appear to fail to provide sufficient detail and clarity to the market as to how or why the conduct was improper, and how that affects the market.