Image of Can the SEC bring enforcement actions against international schemes?

Can the SEC bring enforcement actions against international schemes?

The SEC’s International Reach Against Fraudsters

Yes. The antifraud provisions of the federal securities laws apply extraterritorially:

  1. When the wrongful conduct occurred in the United States; or
  2. When the conduct outside the United States had a substantial effect in the United States or upon United States citizens.

This is known as the “conduct-and-effects” test. Courts have applied this test for over 40 years notwithstanding the fact that the federal securities acts of 1933 and 1934 did not address the extraterritorial reach of the antifraud provisions of those statutes. On June 24, 2010, the Supreme Court of the United States held in Morrison v. Nat’l Australia Bank Ltd. that the lower courts were wrong to apply the conduct-and-effects test. Then, less than a month after the Morrison decision, Congress enacted the Dodd-Frank Act, which amended the jurisdictional provisions of the federal securities acts to clearly indicate that the anti-fraud provisions apply extraterritorially when the statutory conduct-and-effects test is met.

The Conduct-and-Effects Test

Through the Dodd-Frank Act, Congress amended the federal securities laws to include the conduct-and-effects test:

The district courts of the United States and the United States courts of any Territory shall have jurisdiction of an action or proceeding brought or instituted by the Commission or the United States alleging a violation of section 77q(a) of this title [Section 17(a) of the 1933 Securities Act] involving—

  1. conduct within the United States that constitutes significant steps in furtherance of the violation, even if the securities transaction occurs outside the United States and involves only foreign investors; or
  2. conduct occurring outside the United States that has a foreseeable substantial effect within the United States. See 15 U.S.C. § 77v(c).

SEC Enforcement Action Against International Ponzi Scheme

On January 24, 2019, in SEC v. Scoville, the United States Court of Appeals for the Tenth Circuit held (see opinion below) that Congress, in enacting the Dodd-Frank Act’s amendments to the jurisdictional provisions of the securities laws, “undoubtedly intended that the substantive antifraud provisions should apply extraterritorially when the statutory conduct-and-effects test is satisfied.” The Tenth Circuit proceeded to apply the test to a $207 million international Ponzi scheme, which had 90% of its customers outside the United States. The Ponzi scheme involved the sales of investment contracts by Traffic Monsoon, LLC, whose sole owner and member is Charles Scoville. The Tenth Circuit found that the Defendant’s actions satisfied the conduct-and-effects test because:

  1. The Defendant’s company was located in the United States.
  2. Through his company, the Defendant created and promoted the investments over the internet while residing the United States.
  3. The servers housing the company’s website were physically located in the United States.

The Tenth Circuit is the first Circuit Court to address the scope of the SEC’s extraterritorial enforcement authority under the Dodd-Frank Act. The opinion highlights the SEC’s expansive international reach against fraudsters:

SEC International Schemes

For additional analysis of the Tenth Circuit’s opinion, see a recent article in the Harvard Law School Forum on Corporate Governance and Financial Regulation, A New Era of Extraterritorial SEC Enforcement Actions.

SEC Whistleblower Program

Regardless of citizenship, under the SEC Whistleblower Program, whistleblowers are eligible for monetary awards when they provide original information to the SEC about violations of federal securities laws. Whistleblowers are eligible to receive between 10% and 30% of the monetary sanctions collected if their tip leads to a successful enforcement action resulting in monetary sanctions exceeding $1 million.

Since the inception of the whistleblower program, tips have come from whistleblowers in 119 countries outside of the United States. In 2018 alone, the SEC received tips from whistleblowers in 72 foreign countries. The SEC Whistleblower Office received the highest number of tips from whistleblowers in the:

  • United Kingdom,
  • Canada, and
  • Australia.

To date, the SEC Whistleblower Office has issued more than $384 million in awards to whistleblowers. The largest SEC whistleblower awards to date are $50 million, $39 million and $37 million. For more information about the SEC Whistleblower Program, see the eBook Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

SEC Whistleblower Lawyers

The leading international SEC whistleblower attorneys at Zuckerman Law have extensive experience representing SEC whistleblowers both domestically and internationally. If you have original information about a potential violation of the U.S. federal securities laws, contact an international SEC whistleblower attorney at Zuckerman Law for a free, confidential case review by calling 202-262-8959.

The international SEC whistleblower attorneys at Zuckerman Law have advised whistleblowers worldwide, including in Australia, China, Europe, India, Angola, Central America, the United Kingdom, the Middle East, Afghanistan, Argentina, and Canada, and currently represent whistleblowers worldwide in assisting the SEC in active investigations and litigation. We helped a whistleblower abroad obtain a multi-million dollar SEC whistleblower award. See our column in Forbes: One Billion Reasons Why The SEC Whistleblower-Reward Program Is Effective.

To learn more about the SEC Whistleblower Program, download Zuckerman Law’s eBook:

SEC Whistleblower Program Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award

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Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.

Matthew Stock is the Director of the Whistleblower Rewards Practice at Zuckerman Law. He represents whistleblowers around the world in SEC, CFTC and IRS whistleblower claims. He is also a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor.