Yesterday, the Securities and Exchange Commission (“SEC”) released its enforcement statistics for fiscal year 2013, showing the agency filed 686 enforcement actions in the year ending September 30 and collected an impressive $3.4 billion in disgorgement and penalties. Now begins the annual numbers game where commentators – and, ultimately, Congress – take measure of how these statistics reflect on the SEC’s use of its resources over the prior year. These statistics tend to be viewed (wrongly) as a kind of annual report card for the efficacy of the Commission’s enforcement program.
While there will be some clatter as to how the number of actions filed in 2013 was slightly below that of FY 2012, the penalties assessed and the combined penalties and disgorgement were both record numbers. Looking ahead, it will be interesting to see what kind of tempo the SEC’s enforcement program will be able to maintain given some of the Commission’s new stated policies. Mary Jo White has promised to follow both a “broken windows” policy of pursuing even small or technical violations (necessarily requiring additional resources to be devoted to these areas) and a policy of requiring admissions of wrongdoing in certain types of cases – leading to more cases being litigated through trial. The SEC Chairman has also pledged to bring more cases against “gatekeepers” such as accountants and to pursue increased financial fraud cases through a new task force . Financial fraud and “gatekeeper” cases tend to be complex by their very nature and consume large resources to investigate and develop in litigation.
Thus, short of the SEC’s appropriation from Congress increasing markedly, Mary Jo White has pledged to achieve more in her enforcement program, on a dollar-for-dollar basis, than her predecessors. Can this be done? Next year’s “report card” of enforcement statistics may give us some early indication.