This post was written by Amy J. Greer.
At the recent SEC Speaks conference, the recounting of a particular SEC Enforcement action caught my attention and I thought it particularly worthy of note, since most of us who practice in this area believe – with pretty good reason and a whole lot of evidence – that the SEC’s Enforcement Division moves like, well, that tortoise. Usually getting to a finish line, of sorts, but it takes a while. Often a really long while . . . with a lot of meandering.
So, needless to say, Daniel M. Hawke, who heads the Division’s Market Abuse Unit and leads the Philadelphia Regional Office, proudly recounted the much more “hare”-like freezing of $1.1 million in assets of two Spain-based traders, accused of insider trading in connection with PotashCorp’s announcement that it had received and rejected an unsolicited offer from BHP Billiton plc, within 72 hours of that announcement. That’s right: on August 17, 2010, PotashCorp publicly announced the spurned offer, and on August 20, 2010, the SEC’s Enforcement Division obtained a signed order freezing the traders’ assets in the Northern District of Illinois.
And, actually, it’s even better than that. Let’s recount the geography here. The traders are both in Madrid, Spain, trading options through US-based Interactive Brokers, LLC accounts, and all of the trading at issue took place on the Chicago Board of Options Exchange. Potash Corp. is based in Saskatchewan, Canada, and its stock is traded on the New York and Toronto stock exchanges and its options are traded on the CBOE. BHP is based in Melbourne, Australia. SEC staff on the case were located in Chicago, New York, and Philadelphia.
Real time enforcement – that is, taking action shortly after the conduct actually occurred – has been a matter of discussion for a long time at the SEC. Of course, in these types of circumstances, when money is at risk of being moved out of the country and out of the SEC’s ready reach, the timing is even more imperative. But given all of the moving parts here, especially the geographic issues, gathering sufficient evidence to get the freeze order in just 72 hours of the announcement, and within about a week of the trading (all of which occurred between August 12 and 16), just goes to show how quickly the agency can move in the right cases.