WASHINGTON—Securities and Exchange Commission Chairman Gary Gensler has hired a veteran defense attorney and former prosecutor to run the agency’s enforcement division, the first major hire announced under the regulator’s new leadership.
Alex Oh, a partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP, will assume command of the 1,300 person division, which enforces civil securities laws, the SEC announced Thursday. Ms. Oh had recently co-chaired Paul Weiss’s anticorruption and foreign-bribery practice and worked on other types of securities and accounting cases, according to her law firm bio.
Ms. Oh, 53 years old, succeeds Stephanie Avakian and Steven Peikin, who co-managed the Wall Street regulator’s enforcement program from 2017 to 2020. Ms. Avakian is now a top partner at Wilmer Cutler Pickering Hale and Dorr LLP, and Mr. Peikin leads Sullivan & Cromwell LLP’s investigations-and-enforcement practice.
“The Enforcement Division plays a critical role in protecting investors and maintaining fair, orderly, and efficient markets, essential components of the SEC’s mission,” Ms. Oh said in a statement issued by the SEC. “I am committed to working tirelessly to uncover and prosecute violations of the law, whether by businesses or their leaders, so that we can keep American capital markets the strongest in the world.”
Ms. Oh was a federal prosecutor in Manhattan earlier in her career. Her hiring continues a trend of SEC chiefs picking former federal prosecutors to run the SEC’s civil enforcement program. Four of her recent predecessors—Mr. Peikin, Andrew Ceresney, George Canellos and Robert Khuzami—worked as white-collar prosecutors earlier in their careers.

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Gary Gensler (SEC) is seen as a prime example, along with Rohit Chopra, who … With Khan on board, the FTC would slant 3-2 in favor of Democrats.

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What happened 
In a recent client alert, we discussed the dramatic rise in offerings of special purpose acquisition companies (SPACs) and some of the attendant litigation and enforcement risks. A raft of recent public statements and actions by Securities and Exchange Commission (SEC) staff reflect the agency’s enhanced scrutiny of these transactions and suggest that enforcement investigations (and ultimately actions) cannot be far behind.
In late March 2021, it was reported that the SEC’s Division of Enforcement had requested information from Wall Street banks regarding SPAC transactions. According to the reports, Enforcement staff requested information on topics including SPAC deal fees, compliance, reporting and internal controls. Enforcement’s areas of focus may include potential deficiencies in the due diligence SPACs perform before acquiring assets, and whether payouts to sponsors are sufficiently disclosed to investors.
Then, on March 31, 2021, Paul Munter, the SEC’s acting chief accountant in the Office of the Chief Accountant (OCA), issued a public statement titled, “Financial Reporting and Auditing Considerations of Companies Merging with SPACs.” In the statement, Munter observed that the “merger of a SPAC and target company often raises complex financial reporting and governance issues” and identified several areas of potential risk. Among other things, the statement highlighted the risk that “private companies that were not contemplating an IPO or were otherwise earlier in their preparations” may be unprepared for the rigorous financial reporting and internal control requirements expected of public companies and asked stakeholders to give “careful consideration [to] whether the target company has a clear, comprehensive plan to be prepared to be a public company.”
Next, on April 8, 2021, John Coates, the acting director of the SEC’s Division of Corporation Finance (Corp Fin), issued a public statement titled, “SPACs, IPOs and Liability Risk under the Securities Laws.” According to the statement, the SEC staff “are continuing to look carefully at filings and disclosures by SPACs and their private targets.” The statement specifically identified a range of potential federal securities law violations that may arise in the context of SPAC transactions. Notably, Coates questioned whether de-SPAC transactions are covered by the protections of the Private Securities Litigation Reform Act (PSLRA) and observed that, in any event, the PSLRA does not apply to actions brought by the SEC. Correspondingly, he cautioned on the risks of using forward-looking information, which he noted can be “untested, speculative, misleading or even fraudulent.” This was the second time in five months that Corp Fin had addressed the issue.
Most recently, on April 12, 2021, Munter and Coates issued a joint statement on accounting and reporting considerations for SPAC warrants. Walking through two “fact patterns” related to SPAC warrants, the Corp Fin and OCA staff indicated that under the circumstances presented, the warrants should have been classified as liabilities. In the first fact pattern, the staff opined that warrant provisions providing for potential changes to the settlement amounts based on the characteristics of the holder would preclude the warrants from being indexed to the entity’s stock, and thus the warrants should be classified as a liability. In the second fact pattern, the staff stated that warrants should be classified as liabilities if, in the event of a tender offer, all warrant holders would be entitled to cash, while only certain of the holders of the underlying shares of common stock would be entitled to cash. The staff concluded by advising SPAC registrants to consider the impact of the guidance on previously issued financial statements and to assess potential restatements.
Why it matters
These statements (along with two recent investor alerts) make clear that the SEC is heavily focused on the burgeoning SPAC market, that it is seeing issues that concern it, and that it is warning SPAC participants to attend to these issues. While statements from the SEC staff may come from different divisions and offices, they are clearly and carefully coordinated to meet certain goals. As a primary matter, these statements are designed to put parties, as well as their attorneys, accountants, and other advisers, on notice that the SEC is watching. As a secondary matter, such statements by staff in other divisions and offices should be viewed as harbingers of future Enforcement activity. Particularly in recent years, the SEC staff has become adept at issuing statements by the likes of Corp Fin and the Office of Compliance Inspections and Examinations and then following up with Enforcement activity on the same issues. The staff statements make it more difficult for parties to say to Enforcement that they did not realize they were engaged in violations.
Enforcement’s focus on SPACs is likely to be bolstered by the arrival of its new chair. Gary Gensler, who took an aggressive enforcement approach as head of the Commodity Futures Trading Commission, was sworn in on April 17, 2021. Gensler is expected to bring a more aggressive approach to enforcement than his predecessor, Jay Clayton, and he has already stated that at the top of his enforcement agenda, he intends to bring a heightened scrutiny to SPACs.           The recent public statements provide some insight into potential subjects of SPAC-related enforcement activity. Based on the statements by Corp Fin and OCA, one can expect Enforcement will initiate more investigations into SPAC disclosures in SEC filings. Ominously, in his April 8 statement, Munter made a point of reminding SPAC participants that material misstatements or omissions in de-SPAC proxy solicitations are subject to negligence-based liability under Exchange Act Section 14(a) and Rule 14a-9 thereunder, suggesting that the SEC may be willing to pursue a wider scope of conduct beyond outright fraud.
The most significant SPAC enforcement risks arise from disclosures during the IPO and in proxy and registration statements. The sponsor is expected to provide full and fair disclosures around potential risks, conflicts of interest, and other material facts related to each proposed transaction, including:

Sponsors’ obligations and allegiance to parties other than the SPAC, i.e. relationships between the SPAC and target company and relationships between SPAC management and target management or any private investors;
The control that the SPAC’s sponsors, directors, officers and their affiliates have over approval of a merger and their economic interest therein;
The degree to which additional funding may dilute shareholders’ interest in the combined company; and
The economic terms of the securities held by a SPAC’s sponsors, directors, officers and affiliates.

Enforcement (with the help of Corp Fin and OCA) will closely scrutinize disclosures around these issues.
SPAC transactions and targets are primarily valued by the sponsor through the use of fairness opinions, due diligence, valuation assessments, financial projections and statements about the target’s future prospects (i.e. projections), rather than the market-based valuation that accompanies a traditional IPO process. (The valuation tends to be validated by the PIPE investors who often accompany transactions.) Enforcement will examine these forward-looking statements, particularly where high valuations have been assigned to early stage companies based on projected future performance.  Enforcement will also scrutinize whether risks of nonperformance have been adequately identified. Where a target’s expected future performance turns on assumptions such as business pipelines, for example, the SEC staff will likely pay particular attention to whether those assumptions have been vetted and whether the risks have been adequately described. And, as the SEC staff has recently reminded market participants, whatever the applicability of the PSLRA safe harbor to private litigation over SPACs, it provides no protection against government enforcement actions.
We expect that the SEC staff will also focus on the post-merger combined public company. Post-merger public companies must abide by a myriad of financial reporting rules and regulations. Accordingly, like other public companies, they must maintain sufficient personnel, processes and controls to meet disclosure obligations and comply with financial reporting standards. A failure to scale these functions adequately creates a high risk of unwanted SEC scrutiny. In light of its recent inquiries to Wall Street, the SEC appears to be examining the role of gatekeepers—particularly underwriters and auditors—in the SPAC market with a critical eye. Finally, SPACs present multiple insider trading and selective disclosure concerns, particularly given the number of participants who may not be familiar with these issues and how they apply to SPACs. While the SEC has yet to issue any statements on this topic, we fully expect that Enforcement will be looking at these issues as well.
Conclusion
For questions about the litigation and enforcement risks related to SPACs or more information on SEC enforcement matters, please contact a member of Cooley’s white collar defense and investigations and securities litigation groups.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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In an effort to address an issue that has frustrated the business community for years, including startups, tech companies, and “finders,” the U.S. Securities and Exchange Commission (SEC) published a proposed conditional exemption for finders on October 7, 2020. Under the proposal, people (i.e., finders) seeking to assist companies or issuers in raising capital – for a fee – will have a non-exclusive safe-harbor from the broker-dealer registration requirement under Section 15(a) of the Securities Exchange Act of 1934, as amended.  
Since then, however, a new U.S. president has brought in a new leadership team, and the SEC has received a mix of positive and negative comments with respect to the proposal. How Biden’s recently confirmed SEC Chair Gary Gensler approaches the proposal is a key issue to watch in the coming months.  
Background

The question of whether a finder must register as a broker-dealer has been a difficult issue to navigate. As indicated in the new proposal, companies, particularly small businesses, often encounter challenges raising capital. This challenge has provided an opening for finders to help these issuers by introducing them to potential investors. Section 3(a)(4) of the Exchange Act generally defines a broker as “any person engaged in the business of effecting transactions in securities for the account of others.” Section 15(a)(1) of the Exchange Act makes it unlawful, generally, for a broker to use any means of interstate commerce to “effect any transactions in, or to induce or attempt to induce the purchase or sale of, any security,” unless the broker is registered under the Exchange Act.  
As such, the Exchange Act, as a general matter, presents a potential roadblock for finders, that are not registered as broker-dealers, to be compensated for introducing issuers to investors that invest in their private offerings. The uncertainty relates to the fact that the Exchange Act does not provide guidance as to what it means to be “engaged in the business” or “effecting transactions.” As such, the SEC has attempted to tackle this issue over the years through a series of no-action letters, which are based on the facts and circumstances associated with each particular letter. The SEC has attempted to provide guidance through these letters by identifying activities and factors, particularly involving the finder’s ability to receive transaction-based compensation, that are deemed to be broker-dealer activities. Although the SEC has, in very limited circumstances, granted relief to finders in these letters, it has not provided a set of rules or guidance that provides a uniform answer to the conundrum of whether the finder must be registered as a broker-dealer under the Exchange Act.
“Gray Market” and Potential Penalties
This resultant “gray market,” where companies consider utilizing finders that are not registered broker-dealers, can lead to potential penalties for both the issuer and the finder. As to finders who are engaged in certain activities but not properly registered as a broker-dealer, they can be subject to both civil and criminal penalties. With respect to the issuer utilizing a finder who is not registered as a broker-dealer, it can potentially lose the exemption it relied upon to conduct the private offering, and it can potentially be required to conduct a rescission offering, which could be disastrous.  
The SEC’s Exemption Proposal
Under its new proposal, the SEC proposes to exempt two (2) classes of finders, “Tier I Finders” and “Tier 2 Finders.” The exemptions for Tier I Finders and Tier II Finders would be available only where:

The finder is a natural person;
The issuer is not required to file reports under Sections 13 and 15(d) of the Exchange Act;
The issuer is seeking to conduct a securities offering in reliance upon an applicable exemption from registration under the Securities Act of 1933, as amended;
The finder does not engage in general solicitation;
The potential investor is an “accredited investor” as defined in Rule 501 of Regulation D or the finder has a reasonable belief that the potential investor is an “accredited investor”;
The finder provides services pursuant to a written agreement with the issuer that includes a description of the services provided and associated compensation;
The finder is not an associated person of a broker-dealer; and
The finder is not subject to statutory disqualification as defined in Section 3(a)(9) of the Exchange Act, at the time of its participation.

Tier I Finders
Tier I Finders are defined as those finders who meet the general conditions referenced above and whose activity is limited to providing contact information for potential investors in connection with only one capital-raising transaction or offering by a single issuer within a 12-month period. However, the Tier I Finders cannot have any direct contact with the potential investors about the issuer. The proposal would allow Tier I Finders to provide issuers with investor contact information, which may include, among other things, their names, telephone numbers, email addresses, and social media information.
Tier II Finders
Tier II Finders are defined as finders who meet the general conditions referenced above and who engage in additional solicitation-related activities, on behalf of the issuer, that are limited to: (1) identifying, screening and contacting potential investors; (2) distributing issuer offering materials to investors; (3) discussing issuer information included in any offering documents as long as the Tier II Finder does not provide advice as to the valuation or advisability of the investment; and (4) arranging or participating in meetings with the issuer and the investor. Tier II Finders may participate in more than one capital-raising transaction or offering within a 12-month period.
Tier II Finders that seek to rely upon the proposed exemption would need to provide a potential investor, either prior to or at the time of solicitation, disclosure that includes: (1) the Tier II Finder’s name; (2) the issuer’s name; (3) certain information about the relationship between the issuer and the Tier II Finder; (4) a statement that the Tier II Finder will be compensated for the solicitation activities by the issuer and the terms of such compensation arrangement; (5) any material conflicts of interest resulting from the arrangement or relationship between the Tier II Finder and the issuer and (6) an affirmative written statement acknowledging that the Tier II Finder is acting as an agent of the issuer, is not acting as an associated person of a broker-dealer and is not undertaking a role to act in the investor’s best interest.
Under the proposal, the Tier II Finder may deliver such information orally, provided that the oral disclosure is supplemented by written disclosure satisfying the requirements set forth above. Additionally, the Tier II Finder must obtain from the investor, prior to or at the time of any investment in the issuer’s securities, a dated written acknowledgment that the investor has received such disclosures.
Tier I Finders and Tier II Finders that comply with the exemption’s conditions may receive transaction-based compensation for the limited services described above without registering as a broker under the Exchange Act.
Prohibited Activities
To further limit the scope of the exemption, the proposal prohibits finders (both Tier I Finders and Tier II Finders) from: (1) being involved in structuring the transaction or negotiating the terms of the offering; (2) handling customer funds or securities; (3) binding the issuer or investor, (4) participating in the preparation of any sales materials; (5) performing any independent analysis of the sale; (6) engaging in any “due diligence” activities; (7) assisting or providing financing for such purchases or (8) providing advice as to the valuation or financial advisability of the investment.
What Will the Biden Administration Do?

The SEC received more than 90 comments by the close of the commenting period and, as expected, they reflected a wide variety of opinions. Some commenters praised the proposal for providing regulatory clarity while others criticized it for allowing unregistered finders to conduct broker activities without sufficient investor protection mechanisms. 
Given that the proposal was not adopted by the SEC before the end of the Trump administration, it now sits on the Biden administration’s to-do (or not-to-do) list.  President Biden’s new SEC Chair Gary Gensler has not expressed a particular view with respect to the proposal. Nevertheless, from a policy perspective, it’s worth noting that during his testimony before the Senate Banking Committee, Mr. Gensler emphasized both the importance of protecting investors and having “clear rules of the road.” Despite this uncertainty, our contacts at the SEC indicate that the proposal is still in play and that they are still looking closely at the issue. 
Conclusion
While the outcome of the proposal is uncertain, the fact that the SEC is looking closely at the “finder” issue is definitely a step in the right direction. The practical implications of the proposal are far-reaching as this is not an exercise with respect to some esoteric concept but, instead, it is an issue that companies, finders, and the legal community address on a constant basis. 
As is generally the case, the SEC is attempting to determine whether this proposed construct not only enhances an issuer’s ability to raise capital but whether it also provides adequate shareholder protections. These are legitimate considerations the SEC must weigh, but the mere acknowledgment that this issue needs to be addressed is a positive. So, we will continue to keep a close eye on this very important proposal.

Alonzo Llorens and Olivia Daly are attorneys at Parker Poe. Alonzo is based in Atlanta, Georgia, and has substantial experience in corporate law and represents clients ranging from startups to Fortune 500 companies. His legal career started with the federal government, as he worked as an attorney in the U.S. Department of the Treasury’s Honors Program and later with the U.S. Securities and Exchange Commission in its Division of Corporation Finance. Olivia is based in Greenville, South Carolina, where she practices primarily in the areas of mergers and acquisitions, general corporate law, corporate finance, and commercial lending.
They can be reached at [email protected] and [email protected].

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U.S.

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OKLAHOMA CITY, April 22, 2021 /PRNewswire/ — PHX Minerals Inc. (NYSE: PHX) (“PHX” or the “Company”) announced today that the underwriters of its recent public offering of common stock exercised their option to purchase an additional 675,000 shares of common stock at a price to the public of $2.00 per share, increasing the total number of shares purchased to 6,175,000. The net proceeds to the Company from this exercise are expected to be $1,269,000, after deducting the underwriting discount and other estimated offering expenses, resulting in total net proceeds from the offering of $11,209,000.  The Company intends to use the net proceeds of the offering to fund a pending acquisition, subject to customary closing conditions, and for general corporate purposes.  The exercise of the over-allotment option is expected to close on or about April 23, 2021, subject to customary closing conditions.
Stifel is acting as the book-running manager and Northland Capital Markets and Seaport Global Securities are acting as co-managers for the offering. 
The public offering of the Company’s common stock is being made pursuant to an effective shelf registration statement, including the base prospectus and a related prospectus supplement.  A copy of the final prospectus supplement relating to the offering may be obtained from Stifel, Nicolaus & Company, Incorporated, Attention: Syndicate Department, One South Street, 15th Floor, Baltimore, MD 21202, by email: [email protected] or by telephone: (855) 300-7136.
This press release does not constitute an offer to sell or a solicitation of an offer to buy the securities described herein, nor shall there be any sale of these securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
PHX Minerals Inc. (NYSE: PHX) Oklahoma City-based, PHX Minerals Inc. is a natural gas and oil mineral company with a strategy to proactively grow its mineral position in its core areas of focus. PHX owns approximately 253,000 net mineral acres principally located in Oklahoma, Texas, North Dakota, New Mexico and Arkansas.  Additional information on the Company can be found at www.phxmin.com.
Cautionary Statement Regarding Forward-Looking Statements
This press release includes “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Words such as “anticipates,” “plans,” “estimates,” “believes,” “expects,” “intends,” “will,” “should,” “may” and similar expressions may be used to identify forward-looking statements. Forward-looking statements are not statements of historical fact and reflect PHX’s current views about future events. Forward-looking statements may include, but are not limited to, statements relating to: our ability to execute our business strategies; the volatility of realized natural gas and oil prices; the level of production on our properties; estimates of quantities of natural gas, oil and NGL reserves and their values; general economic or industry conditions; legislation or regulatory requirements; conditions of the securities markets; our ability to raise capital; changes in accounting principles, policies or guidelines; financial or political instability; acts of war or terrorism; title defects in the properties in which we invest; and other economic, competitive, governmental, regulatory or technical factors affecting our properties, operations or prices. Although the Company believes expectations reflected in these and other forward-looking statements are reasonable, we can give no assurance they will prove to be correct. Such forward-looking statements are subject to a number of assumptions, risks and uncertainties, many of which are beyond the control of the Company. These forward-looking statements involve certain risks and uncertainties that could cause the results to differ materially from those expected by the Company’s management. Information concerning these risks and other factors can be found in the Company’s filings with the Securities and Exchange Commission, including its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, available on the Company’s website or the SEC’s website at www.sec.gov.
Investors are cautioned that any such statements are not guarantees of future performance and that actual results or developments may differ materially from those projected in forward-looking statements. The forward-looking statements in this press release are made as of the date hereof, and the Company does not undertake any obligation to update the forward-looking statements as a result of new information, future events or otherwise.
SOURCE PHX MINERALS INC.

Related Links
http://www.phxmin.

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Since Mikiyon Alexander came on board to lead Fitch’s housing team in … Inc. is registered with the U.S.

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On March 29, 2021, the Securities and Exchange Commission’s Division of Examinations published a Risk Alert titled “Compliance Issues Related to Suspicious Activity Monitoring and Reporting at Broker-Dealers.” The Alert identifies recurring issues that the Division has identified with the anti-money laundering (“AML”) programs of broker-dealers, particularly as these relate to the filing of suspicious activity reports (“SARs”). It builds on similar issues that the SEC litigated and prevailed on in SEC v. Alpine Securities Corporation in the Second Circuit Court of Appeals, and is consistent with the fact that the SEC has identified AML program compliance as an examination priority in 2021, the fourth consecutive year it has done so.
With regard to SARs, the Risk Alert documents instances the SEC has seen of firms failing to appropriately detect and investigate “red flags” for potential money laundering or other financial crime, including those published in Financial Crimes Enforcement Network (“FinCEN”), SEC, and Financial Industry Regulatory Authority (“FINRA”) guidance, and to appropriately document such activity in SAR filings, especially with respect to sales of low-priced securities (often referred to as “penny stocks”).
The Risk Alert identifies the following key issues:
AML Policies and Internal Controls

Failure to Identify Red Flags in AML Programs. The Division said that a number of firms had failed to specify relevant red flags in their AML policies and procedures that should require further investigation for potential suspicious activity, and to tailor these towards addressing the risks associated with the type of activity in which the firm’s customers regularly engage. For broker-dealers that conduct transactions in low-priced securities, these should include the specific red flags identified in guidance that FinCEN, the SEC, and FINRA have published, such as FINRA’s NTM 19-18 and 2014 guidance from the Division relating to such securities. A complete list of relevant guidance documents appears at the end of the Risk Alert.

Failure to Conduct Automated Transaction Monitoring Where Appropriate and to Set Detection Scenarios Properly. The SEC said that a number of firms with large volumes of daily trading had failed to implement automated systems to monitor and report suspicious activity associated with such trades. Instead, such firms unreasonably relied on a manual process, and also failed to establish procedures or controls designed to identify trends or suspicious patterns across multiple accounts. Where such firms did address low-priced securities in automated monitoring, they sometimes set the threshold for detecting suspicious transactions at $1 or below, forgetting that “penny stocks” are defined to include securities priced between $1 and $5 per share under controlling regulations.

Failure to Set Appropriate Reporting Thresholds. Some firms set their SAR reporting thresholds above the $5,000 required by regulations.

Improper Reliance on Clearing Firms. Some introducing firms inappropriately deferred to their clearing firms to identify and report suspicious transactions in customer accounts and failed to adopt their own procedures that take into account the high-risk nature of their customers’ activity, including trades in low-priced, unregistered securities.

Failure to Implement Procedures
A number of firms that had reasonably designed written policies and procedures “did not implement their procedures adequately and did not conduct adequate due diligence on or report suspicious activity that, per their own procedures, appeared to trigger a SAR filing requirement.” These included:

Failing to file SARs “on transactions that appeared identical in nature to transactions for which the firm had routinely filed SARs, without distinguishing the transactions from those on which SARs were filed previously.”
Failing to reasonably use “available transaction reports and systems to monitor for suspicious activity.”
Failing to follow up on and investigate “red flags identified in their procedures, such as prearranged or non-competitive trading, including wash or cross trades or potential insider trading.”
Failing to enforce prohibitions in their own policies with respect to transactions in low-priced securities that had been imposed to avoid suspicious activity, or to investigate violations of such prohibitions to determine whether the allowed transactions had been suspicious.

Failure to Investigate Known Red Flags
Some firms failed to conduct or document diligence in response to red flags, “especially with respect to trading activity in low-priced securities,” which the SEC said were “particularly susceptible to market manipulation.” This included failing to file SARs despite evidence of “possible improper sales of unregistered securities, and pump-and-dump schemes and market manipulations of thinly traded, low-priced securities,” and failing to investigate transactions in low-priced securities that “included one or more of the following red flags reflected in the 2014 EXAMS Risk Alert and FINRA Notice to Members 19-18.” Such red flags include: (1) large deposits of low-priced securities followed close in time by liquidation and the wiring out of proceeds; (2) patterns of trading activity common to several customers (e.g., sales of large quantities of low-priced securities of multiple issuers); (3) trading “in thinly traded, low-priced securities that resulted in sudden spikes in price or that represented most, if not all, of the securities’ daily trading volumes”; (4) trading in stock of issuers that were shell companies, had previously been subject to trading suspensions, or whose affiliates or insiders had a history of securities law violations; (5) customers with questionable backgrounds, such as being the subject of civil or criminal penalties or regulatory enforcement; (6) trading in the stock of issuers that had been the subject of public warnings or other publicly-available information; (7) customer sales of shares of issuers subject to “simultaneous promotional activity”; (8) “[t]rading in low-priced stock by customers that were affiliates or control persons of the issuer”; and (9) “liquidations of large volumes of low-priced securities concentrated within introducing dealers or broker-dealer counterparties that firms identified as high risk” or whose activity exhibited other red flags.
Failure to File Complete and Accurate SARs
A number of firms failed to include information in structured data fields of the SAR form, and failed to include SAR narratives information relevant to the five essential elements of such narratives – who? what? when? where? and why? – for the suspicious activity being reported. This included neglecting to include in data fields information otherwise available to the firm, such as Social Security numbers, customer loss amounts, customer disciplinary histories and account numbers, and “concerns about suspected promoters and issuers of low-priced securities,” as well as failing to provide detail sufficient to allow a complete understanding of why the reporting firm found the transactions to be suspicious, such as “[r]eporting the deposit of low-priced securities but failing to report the liquidation of the same securities shortly thereafter and the disposition of the proceeds.” Finally, the Division noted cases of cyber intrusions and account takeover incidents where firms had failed to report relevant information such as “the method of transferring out funds, how the account was accessed, bank account information, phone/fax numbers, email addresses, and IP addresses,” all of which are required by FinCEN guidance relating to SAR reporting of “cyber-events.”
Practical Considerations
Regulated firms should ensure that they have considered these issues and addressed them in their own AML programs and SAR-related policies and procedures, paying special attention to any transactions relating to low-priced securities. The SEC continues to focus on AML enforcement against broker-dealers and AML program and SAR failures with respect to transactions in low-priced securities, in particular. Accordingly, firms should track and make efforts to incorporate, as appropriate to their businesses, the red flags that FinCEN, the SEC, and FINRA have established through various notices and in specific enforcement actions. Furthermore, in light of the Second Circuit’s decision earlier this year in SEC v. Alpine Securities Corporation, firms should include enough detail to make clear the nature of the suspicious activity and the securities involved based on available information in internal records (e.g., Social Security numbers, dollar amounts, account numbers, details related to foreign customers and sub-accountholders).

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“Decentralization” is a concept that has consistently vexed the entire blockchain-enabled ecosystem in the U.S., including its counsel and regulators, wherein a lack of clarity on the exact definition of decentralization has left relevant stakeholders routinely talking past one another. As such, market participants have been eagerly waiting for the U.S. Securities and Exchange Commission (the SEC) to explain the agency’s understanding of what it means for a blockchain-enabled network to be “sufficiently decentralized.” Based on the SEC’s recent enforcement action, it looks like the agency is getting ready to take a deep dive.
On March 29, 2021, the SEC filed charges in federal district court in New Hampshire against LBRY, Inc. (“LBRY”), the developer of a purportedly decentralized, peer-to-peer network that enables users to host and share video content. The SEC alleges that LBRY engaged in an unregistered offering of securities by raising more than $11 million through the distribution of the company’s digital tokens, “LBRY Credits,” starting in 2016.[1] The SEC complaint asserts that the LBRY Credits are “securities,” within the meaning of the Securities Act of 1933 (the “Securities Act”), and that by failing to file a registration statement or qualify for an exemption for such offering, LBRY was in violation of Sections 5(a) and 5(c) of the Securities Act. The SEC’s complaint highlights its focus on the lack of actual decentralization of LBRY’s networks in violation of Section 5. Given the prior lack of guidance as to how the SEC views decentralized blockchain-based networks and the rise of decentralized finance (“DeFi”), this action could provide a preview into how the SEC views this topic, as well as an opportunity by the SEC to educate the market going forward.
Background
Blockchain and distributed ledger technology has spurred the creation of financial products that include decentralized, cryptographically secured virtual currencies like bitcoin, stablecoins tied to an asset peg, and an entire alphabet soup of fungible and non-fungible digital tokens. Yet blockchain technology is applicable beyond financial applications, with blockchain-enabled service developers also focusing on video-sharing, commodity tracking, data storage, and other non-financial applications. Although some developers’ applications extend beyond finance, many of these applications still rely on tradable digital tokens.
Because these token-based assets are a form of “investment contract” governed by the Securities Act and the Securities Exchange Act of 1934, the SEC has asserted jurisdiction over them.[2] Since the ICO boom in 2016 and 2017, the SEC has increased its focus on these products, bringing five enforcement actions against blockchain players in 2021 alone.[3] Even five years on, the SEC is committed to leaving no stone unturned in its protection of U.S. investors, with enforcement actions in the past 12 months targeting some of the highest-profile names in the industry as well as alleged capital raises as low as $141,410.[4]
The LBRY Enforcement Action
As in prior actions, the SEC has determined that, because the LBRY Credits are investment contracts, they are securities. The SEC reached this conclusion based on the facts-and-circumstances test first espoused by the U.S. Supreme Court in SEC v. W.J. Howey Co., a.k.a., the Howey Test, with a focus on whether there is an expectation of profits derived based on the issuer’s efforts.[5]
Under the Howey Test, the more likely an asset derives value from the actions of those developing and maintaining that asset, the more likely the SEC is to consider that asset a security. For example, former SEC Chairman Jay Clayton and former Director of the SEC’s Division of Corporation Finance, William Hinman, though not in an official or binding capacity have each maintained that bitcoin, the digital asset de jure, is no longer considered a security because it is sufficiently decentralized.[6] In contrast, the SEC has alleged that LBRY has not met that threshold, and rather than being decentralized, the value of LBRY’s network upon which the LBRY Credits are exchanged (the “LBRY Network”) is very much dependent on LBRY’s actions. To demonstrate, the SEC highlighted the following actions taken by LBRY:
1. LBRY maintained high-profile representations via social media and blog posts to the public that LBRY was helping to drive the value of the LBRY Network;
2. LBRY continued to maintain operational, managerial, and entrepreneurial control of the LBRY Network, including through its large reserve of LBRY Credits;
3. LBRY continues to control the supply of LBRY Credits in order to stabilize the value of the LBRY Network, including by enlisting a third-party market maker as its agent to buy and sell LBRY Credits;
4. LBRY continues to control the LBRY Network’s software code for its applications and the protocol;
5. LBRY continues to unilaterally make strategic and managerial decisions about the future of the LBRY Network; and
6. LBRY continues to unilaterally decide how to allocate the capital and resources it has pooled from investors to grow the LBRY Network.
In other words, without the continued involvement of LBRY, there is no more LBRY Network; the whole infrastructure would likely collapse without the implicit and continued development support of the LBRY team.[7] Therefore, in the SEC’s view, the so-called decentralized network is not sufficiently decentralized to pass the “efforts of others” prong of the Howey Test.
The Bigger Picture
Considered against previous Section 5 enforcement actions, the LBRY enforcement action reflects the SEC’s continued commitment to strictly enforcing non-fraud registration violations for digital assets. Consistent with past form, the fact that LBRY only raised $11 million, which is a relatively low amount by SEC standards, is no bar to the SEC’s willingness to open an enforcement action against a digital asset issuer; the SEC often goes after issuers in the low millions. Furthermore, the fact the LBRY engaged a third-party market maker to help stabilize the value of the LBRY Credits is an action that the SEC paid significant attention to. Market makers are required to be licensed with the Financial Industry Regulatory Authority (FINRA) and then, once licensed by FINRA, to only transact on exchanges licensed or otherwise approved to trade as an alternate trading system by the SEC. The use of a market maker is therefore a prime indication of behavior that would otherwise fall under the SEC’s jurisdiction and arguably a form of market manipulation, regardless of context and industry. That behavior alone would raise red flags to the SEC, and as such it is no surprise that the behavior is an area of focus within this particular enforcement action.
That said, the enforcement action against LBRY deviates from prior actions in the SEC’s emphasis that the LBRY Network was not sufficiently decentralized to enable the LBRY Credits to pass the Howey Test. In contrast, prior cases have hinged on the expectation-of-profits prong. This has been equally true for traditional companies dabbling in blockchain or fully decentralized and autonomous organizations like The DAO.[8]
DeFi platforms, take note. The LBRY enforcement action represents an evolution in the SEC’s thinking and possibly portends what is to come under new SEC Chairman Gary Gensler, who is intimately familiar with the industry and has taught classes on cryptocurrency.[9] Indeed, this change in focus from profits to networks could have substantial implications for DeFi’s system of decentralized networks that represented a collective investment of at least $20.5 billion at the start of 2021,[10] wherein the term “decentralized” in DeFi blockchain jargon means different things to different stakeholders.
True to past form, the SEC has opted to use an enforcement action as an opportunity for the agency to educate the market about decentralization. However, while the enforcement action against LBRY likely provides an insight into the SEC’s thinking, little is done to clarify what the SEC would consider to be a “sufficiently decentralized” network in a way that could guide positive future behavior by market participants. We only yet have the ability to set presumptive guard rails for behavior based on comparable conduct cited in a complaint. While several academics have made suggestions that attempt to clarify this discrepancy through new corporate forms or codified exceptions, or have perhaps disregarded it altogether as an unreliable metric,[11] the SEC itself has not made any such affirmative statements. Therefore, for digital asset stakeholders, the enforcement action against LBRY is hopefully a prelude to affirmative guidance from the SEC on decentralization that the industry is very much hungry for.

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MANILA, Philippines—The Securities and Exchange Commission (SEC) has revoked the corporate registration of Bill Ford VIP Trading, an entity that sells piggery investments, citing its practice as an unauthorized investment activity resembling a Ponzi scheme.
BillFord Trading’s investment scheme involved the sale of pigs for P2,500 each, with the promise of this investment growing to P4,375 three months later.
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In an order issued on April 14, the SEC Enforcement and Investor Protection Department (EIPD) found the group, headed by a certain Billy Ford Delos Santos Andrada, to have engaged in investment-taking activities by selling or offering securities to the public without a secondary license from the SEC.
In doing so, BillFord Trading committed an “ultra vires” act under the Revised Corporation Code of the Philippines, the SEC announced on Thursday (April 21).

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The company’s activities also constituted “serious misrepresentation” to the “great prejudice of or damage to the general public,” a ground to revoke its certificate of registration under Presidential Decree No. 902-A, according to the SEC’s order.
Under its investment scheme, an investor who buys five pigs worth P12,500 is guaranteed to get P21,875 by the end of three months, while someone who invests in 40 pigs worth P100,000 will get a gross profit of P175,000 after the same period.

As a form of security, the Securities Regulation Code requires that investment contracts must be registered with the SEC before these can be sold or offered within the Philippines. However, SEC records showed that BillFord Trading is not authorized to solicit investments from the public.
The EIPD further noted that BillFord Trading’s main strategy was to earn from the recruitment of new members or investors, with the piggery business being used as a front for its scheme.
“Necessarily, this scheme is unsustainable, as it must rely on a continuous inflow of new investors in order to make payouts to earlier investors,” the order read.
“To exacerbate matters, the scheme being offered by BillFord Trading Co./ Bill Ford VIP Trading Inc. is clearly in the nature of Ponzi scheme, where the profits or payouts shall be taken from incoming investors or additional pay-ins of existing members-investors considering that it does not have any underlying legitimate business from where it could source its promised return on investments to its investors,” the SEC said.
The SEC added that BillFord Trading had committed another instance of fraud when three of its incorporators—Trixie Faith Pena, Andrew James Balero and Jethro John Reyes—provided wrong addresses in the company’s articles of incorporation.
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Startups looking to raise capital can now raise nearly five times more due to recent changes made by the Securities and Exchange Commission.
What’s new
Among SEC’s recent changes to Regulation Crowdfunding, or equity crowdfunding, startups can raise up to $5 million in a 12-month period, up from $1.07 million. This type of funding allows companies to raise capital from a large pool of customers, friends, family and investors via online funding portals while being exempt from more traditional SEC registration requirements.
“It will fundamentally shift how more mature startups go about raising money in the future,” says Sherwood Neiss, principal at Denver-based Crowdfund Capital Advisors, LLC, a crowdfund investing advisory firm.
He said $1.07 million was helpful for early startups and Main Street businesses, but was limiting to more advanced mid-size startups in the $5 million to $25 million revenue range.
Increased limits also will lead to more startups coming online seeking funds, which will in turn lead to more investors, he says.
Neiss, who helped architect the framework for Regulation Crowdfunding made possible through the JOBS Act of 2012, believes the changes will especially help traditionally underfunded groups like women and minority entrepreneurs. The JOBS Act created new rules that increased access to capital by expanding the pool of investors beyond just high-net worth individuals.

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Additional changes
Also notable as part of the SEC’s recent changes, Neiss says:
• Investment limits on what startups can raise from accredited investors were lifted;
• Investment limits for non-accredited investors are now based on the greater of their annual income or net worth (previously it was based on the lesser of their annual income/net worth); and,
• Issuers can now test the waters via certain communications to see if there is interest in their concept before filing a complete offering.
Regulation A+ crowdfunding
Separately, the amount of funds that could be raised through Regulation A+ crowdfunding, which is for more larger companies, increased from $50 million to $75 million, says Neil Kaufman, managing partner at Hauppauge-based Kaufman McGowan PLLC, which advises clients on private placements and SEC filings.
Generally speaking Regulation A+ crowdfunding comes with more administrative and filing burdens than Reg CF, Kaufman says. He says he’s already filed a Regulation A+ offering for $75 million on behalf of a client looking to take advantage of increased limits.
He says he’s also gotten inquiries from startups looking to take advantage of the increased $5-million limit on Reg CF.
The increase “will significantly expand the number of companies that find Regulation Crowdfunding attractive” Kaufman adds.
Plainview company exploring options
Arnold Stillman, CEO of Plainview-based POEM Technology, a manufacturer of cloud-connected devices including oil tank monitoring devices, says he hadn’t traditionally considered Regulation Crowdfunding because he was always seeking more than the original $1.07 million limit.

Arnold Stillman, CEO of Plainview-based POEM Technology, Credit: POEM Technology

The company is seeking growth and marketing capital presently and Stillman says with the limit being raised they may circle back to an investors club in New Rochelle that had offered to put together some interested crowdfunding sources.
He said POEM would consider Regulation Crowdfunding for smaller individual projects rather than for larger amounts of net operating capital since with this form of crowdfunding you’re typically dealing with a large pool of investors.
Limits, benefits to Reg CF
That’s something startups have to be mindful of, says Michael Lane, chairman of the Long Island Capital Alliance and CEO of Huntington-based SteriLux Systems, an early stage health care company that developed a sterilization locker for garments, shoes and personal items.

Michael Lane, chairman of the Long Island Capital Alliance and CEO of Huntington-based SteriLux Systems Credit: Michael Lane

With Reg CF, companies could have hundreds to thousands of investors they’d need to communicate with, provide updates, answer questions, etc., he says, noting “there’s a management component to all that.”
With that many investors and higher limits, Lane says, they also have to be careful how much of their company they’re giving away.
On the plus side, Reg CF does offer access to a broader number of investors, he says.
Still, Bob Brill, an accredited investor and a board member of the Long Island Angel Network, says to consider there‘s still value in bringing on angel investors or venture capitalists.
“Most startups can benefit from savvy investors like angels to help guide them,” he says.
Conversely, with Reg CF you’re raising smaller amounts from a lot of people many of which many not be investment savvy, says Brill, also co-founder of Brooklyn-based Qunnect, a quantum communications device company and a board member/investor of Huntington-based eGifter.
But Reg CF does offer an alternative option for startups, which isn’t “a bad thing,” he says.

Fast Fact:
The pandemic impacted Regulation Crowdfunding initially with total dollars invested at $8.3 million in March 2020, down from $12.3 million in January 2020, according to Crowdfund Capital Advisors (CCA), which tracks the 50-plus active online investment platforms. That’s since rebounded and grew to $70.2 million for March 2021.

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US financial regulators are considering new rules aimed at increasing transparency into the trading of the types of derivatives that bankrupted fund manager Archegos last month, according to a report by Bloomberg.
Citing “people familiar with the matter”, the Bloomberg report said Securities and Exchange Commission (SEC) officials were in early stages of a review that may lead to greater scrutiny of certain types of trading practices, such as high-risk derivative strategies and short selling.
The regulator will review whether such information can be included in existing filings, such as 13D forms (which institutional investors must file if they amass more than 5% of a company’s shares) or the 13F form (which firms with more than $100m under management must file quarterly to disclose their equity holdings).
It will also examine if such filings can be made more frequently so that officials can spot potential risk areas building up.
Archegos Capital Management
Last month Archegos went bust without ever filing such documents, as it had accumulated huge positions through the derivatives market, using total return swaps. It amassed large, concentraded positions in several companies, including Baidu, Vipshop and VaicomCBS.

When the bets went bad, the firm defaulted on margin calls with a number of investment banks, including Credit Suisse, which took a $4.8bn hit, while Nomura lost $2bn.
Archegos owner Bill Hwang reportedly lost his $20bn fortune in just two days following the collapse of the family office.
Short selling
The Bloomberg report also suggested the SEC is under pressure from Capitol Hill to make the practice of short selling less murky by forcing investment firms to reveal large short positions that could lead to highly volatile trading conditions.
This follows a period in January and February when shares in GameStop lurched lower as hedge funds began to short sell the stock, and then reclaimed losses as retail investors banded together through a subreddit forum to buy the stock.

Read more: Nomura internal team to investigate $2bn Archegos-linked loss

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Tyson Foods Inc. on Monday challenged a shareholder’s bid to lead a class action in Brooklyn federal court that alleges the meatpacker misrepresented its efforts to protect workers against covid-19.
Tyson and three executives represented by Mary Eaton of Freshfields Bruckhaus Deringer said in a letter that the losses claimed by private investment fund H Fried Canada Inc. seem to be tied to put options sold before the class period, making the shareholder ineligible to lead, or even be part of, the case.
The original complaint, brought by Mingxue Guo in February, alleged that Tyson made certain false or misleading statements about its response to the pandemic, resulting in compensable damages among shareholders between March and December of 2020.
When share prices rise after a company makes a certain claim, someone buys the stock at an elevated level and those prices later fall because the claim was false or misleading, “you’ve arguably got a securities fraud case,” said Robert Steinbuch, a professor at UALR’s Bowen School of Law.
Guo’s counsel filed a motion earlier this month to appoint H Fried Canada as the lead plaintiff, usually the person with the largest financial interest in the litigation. Tyson this week countered that both groups were ineligible to be the lead plaintiff of the case.
[CORONAVIRUS: Click here for our complete coverage » arkansasonline.com/coronavirus]
The company claimed that Guo suffered no compensable losses, cannot state a claim for relief and lacks standing to sue, while H Fried Canada sold options before the class period.
“Neither the original named plaintiff nor the proposed lead plaintiff has standing to assert claims against [Tyson] under the Securities Exchange Act, neither is suitable to serve as a representative of the putative class, and no other stockholder has stepped forward,” Tyson said in a letter to the court.
What makes Tyson’s claim unique is that the shares were purchased in an unusual way, Steinbuch said. Instead of buying the stock outright, H Fried Canada agreed to have a stock put to them at an agreed upon price, he said.
Tyson argued that put sellers are not appropriate lead plaintiffs for a number of reasons, including that their market incentives differ from other class members who trade shares on the open market.
Steinbuch said the letter was the company’s effort to dismiss the class action, “alleging that the plaintiff didn’t buy stock during the relevant time period that claims fraud.”
The New York Comptroller urged the U.S. Securities and Exchange Commission last winter to open an investigation into Tyson regarding its failure to carry out certain coronavirus protection policies. The lawsuit claims that on this news, the price of Tyson shares fell $1.78 per share, or 2.5%, to close at $68.25 per share on December 15. The plaintiff blamed Tyson’s wrongful acts and omissions for the losses and damages incurred by shareholders.

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NEWPORT BEACH, Calif., April 21, 2021 (GLOBE NEWSWIRE) — Evolus, Inc. (Nasdaq: EOLS) announced today the pricing of its public offering of 9,000,000 shares of its common stock at a public offering price of $9.50 per share, before underwriting discounts and commissions. The gross proceeds from the offering to Evolus are expected to be $85.5 million, before deducting underwriting discounts and commissions and offering expenses. In addition, Evolus has granted the underwriters a 30-day option to purchase up to an additional 1,350,000 shares of common stock at the public offering price, less the underwriting discounts and commissions. The offering is expected to close on or about April 26, 2021, subject to satisfaction of customary closing conditions. All the shares in the offering are being sold by Evolus.
Evolus intends to use the net proceeds of the offering to continue to fund the U.S. growth of Jeuveau®, European pre-launch activities and general corporate purposes.
SVB Leerink, Stifel and Cantor are acting as joint bookrunning managers for the offering. H.C. Wainwright & Co. is acting as lead manager for the offering.
The offering is being made pursuant to a prospectus supplement, dated April 21, 2021, to the accompanying prospectus included in Evolus’ registration statement on Form S-3 (File No. 333-230466), which was filed on March 22, 2019, amended on April 10, 2019 and became effective on April 15, 2019. Copies of the preliminary prospectus supplement and the accompanying prospectus may be obtained by visiting EDGAR on the U.S. Securities and Exchange Commission (“SEC”) website at www.sec.gov. A final prospectus supplement will be filed with the SEC and will form a part of the effective registration statement. When available, copies of the final prospectus supplement may be obtained from SVB Leerink LLC, Attention: Syndicate Department, One Federal Street, 37th Floor, Boston, MA 02110, by telephone at (800) 808-7525, ext. 6105, or by email at [email protected]; or Stifel, Nicolaus & Company, Incorporated, Attention: Syndicate, One Montgomery Street, Suite 3700, San Francisco, CA 94104, by telephone at (415) 364-2720, or by email at [email protected].
A registration statement relating to these securities has been filed with the SEC and has been declared effective. This press release shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of, these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification of these securities under the securities laws of any such state or jurisdiction.
About Evolus
Evolus is a performance beauty company with a customer-centric approach focused on delivering breakthrough products. In 2019, the U.S. Food and Drug Administration approved Jeuveau® (prabotulinumtoxinA-xvfs), the first and only neurotoxin dedicated exclusively to aesthetics and manufactured in a state-of-the-art facility using Hi-Pure™ technology. Jeuveau® is powered by Evolus’ unique technology platform and is designed to transform the aesthetic market by eliminating the friction points existing for customers today.
Forward-Looking Statements
Statements in this press release that relate to future plans, events, prospects or performance are forward-looking statements as defined under the Private Securities Litigation Reform Act of 1995. All statements, other than statements of historical fact, are statements that could be deemed forward-looking statements, including statements that relate to Evolus’ public offering and statements containing the words “plans,” “expects,” “believes,” “strategy,” “opportunity,” “anticipates,” “outlook,” “designed,” or other forms of these words or similar expressions, although not all forward-looking statements contain these identifying words. These forward-looking statements are subject to the inherent uncertainties in predicting future results and conditions and no assurance can be given that the public offering discussed above will be completed on the terms described. Completion of the public offering and the terms thereof are subject to numerous factors, many of which are beyond the control of Evolus, including, without limitation, market conditions, failure of customary closing conditions and the risk factors and other matters set forth in the prospectus supplement and accompanying prospectus included in the registration statement. Except as required by law, Evolus undertakes no obligation to update or revise any forward-looking statements to reflect new information, changed circumstances or unanticipated events.
Jeuveau® is a registered trademark of Evolus, Inc.Hi-Pure™ is a trademark of Daewoong Pharmaceutical Co, Ltd.
Evolus Contacts:
Investor Contact:Lauren SilvernailChief Financial Officer and EVP Corporate DevelopmentTel: +1-949-284-4726Email: [email protected]
Media Contact:Crystal MuilenburgChief Marketing OfficerTel: +1-949-284-4506Email: media@evolus.

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China Unicom (Hong Kong) Limited 2020 Annual Report on Form 20-F Filed With the SEC. April 21, 2021 09:14 PM Eastern Daylight Time.

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