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On February 21, 2018, the Securities and Exchange Commission (SEC) issued an interpretive Commission Statement and Guidance on Public Company Cybersecurity Disclosures (the “Guidance”) to assist public companies in meeting their cybersecurity disclosure requirements under the federal securities laws. The Guidance notes that, as reliance on networked systems and the…

This client alert was prepared by my colleagues Robert Leonard, Michael Mavrides and Christopher Wells.

On April 28, the Securities and Exchange Commission (SEC) released a Guidance Update addressing the importance of cybersecurity and the steps registered investment advisers (and registered investment companies) may wish to consider in light of growing cybersecurity risks. This Guidance Update is the latest instance of the SEC’s increased emphasis on cybersecurity as a priority for advisers. A Cybersecurity Roundtable was hosted by the SEC on March 26, 2014 and the Office of Compliance Inspections and Examinations released a Risk Alert on February 3, 2015 summarizing its cybersecurity examinations of over 100 advisers and broker-dealers.

The Guidance Update provides several measures that advisers may wish to consider when creating a cybersecurity policy. These suggestions are not, however, intended to be comprehensive and advisers should tailor their cybersecurity policies to the particular nature and scope of their businesses.

By Rochelle Emert and Phillip Caraballo-Garrison

On February 3, 2015, the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) issued a Risk Alert that summarized its findings about cybersecurity preparedness in the securities industry. As part of its Cybersecurity Examination Initiative, the OCIE collected and analyzed information about cybersecurity practices…

On April 7, 2011, the SEC announced that it had imposed fines of $20,000 each against the former president of a broker-dealer and a former broker for their actions in transferring customer information to a new firm as the defunct firm wound down. The SEC also fined the brokerage firm’s former chief compliance officer $15,000 for compliance failures and security breaches that took place at the defunct firm, some dating back to 2005. Visit our blog to learn more.
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The report by Drs. Alan Levy and Manoj Hastak, Consumer Comprehension of Financial Privacy Notices, uses the results of a mall-intercept study to compare the performance of a prototype financial privacy notice developed by the Kleimann Communication Group (“KCG”) during the first phase of the INP against three alternative notices. The Levy-Hastak report, among other things, confirms what proponents of the INP suspected – some GLBA privacy notices are largely ineffective in conveying information to consumers that allows them to make rational decisions about the sharing of their personal financial information.
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In light of growing concerns over identity theft, data breaches, and the hacking of online brokerage accounts, the Securities and Exchange Commission (“SEC”) has recently proposed new amendments to Regulation S-P – the SEC’s existing privacy rules mandated under the Gramm-Leach-Bliley Act. The SEC’s unanimous approval of these proposed rules signals the Commission’s desire to more closely align its privacy guidelines with those of the Federal Trade Commission (“FTC”) and the Federal Banking Agencies, which adopted data breach notice rules in 2005. For regulated companies, however, the amendments could mean additional costs and liabilities.

Balancing privacy and evidentiary interests in a stock option backdating matter, the Northern District of California held on June 11, 2007 that the SEC’s interest in obtaining banking account information of defendant Gregory Reyes, ex-CEO of Brocade Communications, outweighs Reyes’ financial history privacy interests. SEC v. Reyes, No. C 06-04435 CRB (N.D. Cal. 2007).
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Broker-dealer firms are well advised to review and update their privacy policies, in light of the Securities and Exchange Commission’s (“SEC”) recent enforcement and investigation activities arising from Regulation S-P.

According to trade press, recently the SEC informed one independent broker-dealer firm, Next Financial Group, Inc. of Houston, Texas, that it may file a “privacy” suit under Regulation S-P. The suit would be based on the practice, which Next maintains is common among independent broker-dealer firms, of requiring broker recruits from other firms to provide Next with customer information in anticipation of the move. According to the press, the SEC contends that before the brokers left their firms to join Next, they should have asked clients for their consent to use any information at the new firm. Alternatively, Next should have only required brokers to provide this information if the brokers’ prior firms had stated in their privacy policies that departing brokers may take certain customer information to competing firms (and the particular consumers had not opted-out of this policy). The SEC is reportedly considering suing Next for violations of Regulation S-P, as well as for aiding and abetting the violations by the brokers it recruited.