September 4, 2021
After an individual or entity is named as a defendant or respondent in a legal proceeding, they may subsequently be exonerated, or, the prior charges may be withdrawn for a number of reasons. Such vindication or dismissals may occur years after the filing indictments/complaints and the follow-on press coverage. Unfortunately, it's often difficult (if not impossible) to erase the references to a lawsuit that were posted on the Internet. Moreover, what was "true" when first posted months or years ago is not rendered as false or defamatory merely because subsequent developments prompted a finding of not guilty or the withdrawal of charges. In a recent SEC matter, we see how some of these various considerations come into play.
When entering into a settlement of allegations of regulatory conduct with FINRA, respondents agree to the imposition of sanctions subject to the reservation "without admitting or denying" the allegations in the Complaint. That's a big concession by a regulator. Unfortunately, FINRA isn't policing the enforcement of its settlements because some respondents seem to be denying their misconduct or raising questions about it. See a recent FINRA regulatory settlement for one such scenario.
In June 2021, in the first iteration of this article, we noted that among the mysteries of the Universe is whether a revocation of a license is the same as a bar of a license. On top of that puzzler, if something happens but you didn't know about it at the time but you eventually learn about it, does that mean you had failed to timely report what you didn't know had happened but now do? Then, we are asked to ponder the ethical and legal implications of whether the SEC should stay a determination by FINRA that someone has become statutorily disqualified after that same individual voluntarily reported the facts that prompted FINRA's determination. In August 2021, the SEC asked for additional briefing.