December 27, 2018
Today, there are few industries where consultants are not active. In some situations, a consultant is brought in to find problems. In other situations, consultants are engaged to fix problems. In some circumstances, consultants are hired in anticipation of litigation. In other circumstances they are hired to assist in litigation. Consequently, there is often a ton of information provided to and developed by an industry consultant that you may want to keep confidential. But according to what legal theory? When these outside third-parties were finding or fixing problems or helping you deal with the impact of a lawsuit or regulatory investigation, they frequently interacted with in-house and outside counsel. Perhaps the attorney-client privilege or attorney work product would cover any negative findings? On the other hand, the outside consultants were not lawyers and you did speak with them before your firm was named in any Complaint and before you actually hired your lawyer . . . uh oh. Consider how these issues just played out in a motion to quash an SEC subpoena directed at a consultant.
FINRA ETF Action
Upon learning that the Financial Industry Regulatory Authority, Inc.
("FINRA") had initiated an enforcement action against a brokerage firm for
marketing exchange traded funds ("ETF"), Louis Navellier, the founder
and principal of Navellier & Associates Inc. ("NAI") became concerned that the Securities and Exchange Commission would investigate NAI and other investment advisor firms that advertised ETF-based strategies.
2013 ACA Review and Retention
On January 29, 2013, NAI's President forwarded various marketing materials directly to ACA Compliance Group partmer Ted Eichenlaub for review; and in his response, Eichenlaub invited NAI's President to follow up with him or his associate to gain clarity on the issues without any mention of counsel. Thereafter, ACA performed a mock audit of NAI that confirmed that NAI "looked pretty good." Accordingly, around February 2013, NAI retained outside consultant ACA Compliance Group to conduct a compliance review of NAI's marketing materials regarding Vireo AlphaSector strategies, which NAI licensed from F-Squared Investments, Inc. At the time when Navellier had engaged the services of ACA, he did not anticipate being sued and did not anticipate NAI being sued; notwithstanding that Naveliier's and NAI's counsel would subsequently state that ACA was retained to assist him in providing legal advice to his client in anticipation of possible SEC litigation.
2013 SEC F-Squared Investigation
In September 2013, the SEC's Division of Enforcement opened an investigation into F-Squared, including its representations concerning F-Squared's AlphaSector strategies. Sometime in October 2013, Enforcement subpoenaed NAI for documents relating to the F-Squared investigation.
2016 SEC Investigation of NAI
In "Advisory Firm and Founder Charged for False Performance Claims in Advertising Materials" (SEC Lit. Rel. No. 23925 / August 31, 2017)
https://www.sec.gov/litigation/litreleases/2017/lr23925.htm, the SEC announced that it had filed a Complaint in the United States District Court for the District of Massachusetts alleging that Navellier & Associates violated Sections 206(1), 206(2), and 206(4) of the Investment Advisers Act of 1940 and Rule 206(4)-1(a)(5) and that Louis Navellier violated and, in the alternative, aided and abetted Navellier & Associates' violations of Sections 206(1) and 206(2) of the Advisers Act. READ the Complaint. https://www.sec.gov/litigation/complaints/2017/comp23925.pdf
As set forth in part in the SEC Litigation Release, the Complaint alleged that:
[F]rom 2010 to 2013, Mr. Navellier and his firm defrauded their clients and prospective clients, misleading them about the performance track record of the "Vireo AlphaSector" investment strategies that the firm offered under the "Vireo" brand name. First, Mr. Navellier and his firm allegedly breached their fiduciary duty to clients and prospective clients by ignoring and concealing red flags that should have alerted them that the investment strategies had not performed as advertised. Second, Navellier & Associates allegedly distributed materially false advertisements and client communications about the performance track record of the investment strategies. Third, as Mr. Navellier and his firm realized their misrepresentations could get them in legal trouble, they allegedly sold the Vireo line of business in August 2013 for $14 million, rather than correcting their prior misrepresentations to their clients or informing their clients about their conflicts of interest in selling the Vireo business.
Navellier & Associates' advertisements claimed that client assets had been invested in the investment strategies from April 2001 to September 2008 and that the strategies had significantly outperformed the S&P 500 Index from April 2001 to September 2008. In fact, no client assets had tracked the strategy from April 2001 through September 2008, and even as a back-test the claimed performance was substantially overstated.
Magistrate Judge Mariann B. Bowler denied the Motion to Quash. In Securities and Exchange Commission, Plaintiff, v. Navellier & Associates, Inc. and Louis Nellier, Defendants (Memorandum and Order RE: Defendants' Motion to Quash Plaintiff's Subpoena to Non-Party ACA Compliance Group and for Protective Order; United States District Court for the District of Massachusetts, 17-11633 / December 21, 2018)
Defendants NAI and Navellier moved to quash
an SEC subpoena seeking documents in the hands of third-party
consultant ACA pertaining to NAI for
the January 2012 to September 2013 time period on the basis of
the attorney-client privilege and the work-product doctrine. SEC argues that the
- attorney-client privilege does not apply
to third-party communications;
- ACA does not fall under a
limited exception to this rule; and
- litigation with the SEC was not anticipated.
In addressing the issue of attorney-client privilege, Magistrate Bowler reiterates the "well-honed" holding that said privilege protects "only
those communications that are confidential and are made for the
purpose of seeking or receiving legal advice," and does not immunize facts available from other source merely because a client had disclosed such facts to an attorney. As to the specific contentions at issue, the Memorandum and Order explains:
Magistrate Bowler concedes that documents created by an outside, third-party at an attorney's request for the purpose of advising
and defending the client could fall under the exception pertaining to waiver of the privilege; however, such disclosure generally must be necessary to the lawyer in providing
legal advice to the client. Necessary means more than just useful and may well be narrowed to something akin to a nearly indispensable. Accordingly, the Memorandum and Order holds that:
Defendants insist that the privilege extends to an outside
consultant such as ACA because NAI hired ACA as part of an
internal company review to assist NAI's counsel in advising his
clients, NAI and Navellier (Docket Entry # 68-1, ¶ 4), regarding
possible future litigation with the SEC. (Docket Entry ## 68,
74). The SEC disagrees and maintains that disclosure to an
outside party such as ACA does not fall within the narrow
exception to the waiver rule that applies when confidential
communications are disclosed to the outside party. (Docket Entry
Work Product Doctrine
Here, the ACA was not serving an
interpretive role and was not "‘necessary, or at least highly
useful'" to defendants' counsel in providing legal advice to
defendants. Accordingly, the documents sought by the subpoena
are not subject to attorney-client protection.
As to the issue of whether the subpoenaed materials fall within the work-product doctrine, the Magistrate stated that the Defendants bear the burden of establishing such and that:
[H]ere, the SEC did not commence
an investigation into NAI until more than two years after the end
date of the time period for documents sought in the subpoena,
September 2013. Navellier's concern about possible future
litigation with the SEC in 2013 does not make the prospect of
litigation with the SEC anticipated. Accordingly, the work-product doctrine does not provide protection for the withheld
Notwithstanding the apparent SEC victory found in the Magistrate's denial of Respondents' Motion to Quash, she determined that:
Although the subpoenaed material
is not privileged, the time period (January 2012 to September
2013) appears overbroad inasmuch as ACA's engagement began in or around January 2013. The parties are therefore instructed to
confer with each other in an effort to narrow the time frame.