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SEC Broadens Scrutiny of Employment and Separation Agreements Under Whistleblower Rule

By Arthur Don, Tracy L. Gerber, Hannah Caplan & Jack Gearan on October 10, 2023
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In September 2023, the Securities and Exchange Commission (SEC) announced three separate enforcement orders reflecting a renewed interest in and scrutiny of provisions in employment agreements and separation agreements. These three settled cases resulted in cease-and-desist orders, fines, and other sanctions against a registered investment adviser, a public company, and a privately held company in connection with provisions in employment and separation agreements the SEC deemed violated Rule 21F-17(a), which protects against actions taken to impede whistleblowers. 

Continue reading the full GT Alert.

Photo of Arthur Don Arthur Don

Arthur Don has more than 45 years of experience representing public and private investment companies, money managers and investment advisers, mutual funds and their independent directors, private investment funds (including private equity funds and real estate funds), and broker-dealers. His practice focuses on…

Arthur Don has more than 45 years of experience representing public and private investment companies, money managers and investment advisers, mutual funds and their independent directors, private investment funds (including private equity funds and real estate funds), and broker-dealers. His practice focuses on regulatory structuring and compliance matters, governance, and sophisticated securities matters and transactions.

Throughout his career, Arthur has represented some of the nation’s most well-known and successful investment managers. His decades-long experience in the investment management arena enables him to provide bespoke counseling and strategies.

In addition, Arthur has represented issuers and underwriters in numerous public offerings. He frequently advises on independent director fiduciary duties and compliance policy issues and the implementation of ESG (Environmental, Social, and Governance) principles.

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Photo of Tracy L. Gerber Tracy L. Gerber

Tracy L. Gerber is Co-Managing Shareholder of the West Palm Beach office and Co-Chair of the firm’s Broker-Dealer Securities Litigation Practice. She is also a member of the firm’s Labor & Employment Practice. Tracy regularly defends major Wall Street brokerage firms, registered investment

…

Tracy L. Gerber is Co-Managing Shareholder of the West Palm Beach office and Co-Chair of the firm’s Broker-Dealer Securities Litigation Practice. She is also a member of the firm’s Labor & Employment Practice. Tracy regularly defends major Wall Street brokerage firms, registered investment advisers and other financial institutions in a wide variety of employment disputes in arbitration, before administrative agencies, and in state and federal courts nationwide. Tracy has substantial cross-over experience in the regulatory and sales practice arena, having handled numerous SEC, FINRA and state regulatory inquiries, investigations and enforcement proceedings, as well as customer arbitrations. Tracy regularly assists clients in identifying the collateral risks that are often inherent in employment disputes and customer cases involving unique employment related issues. She routinely works with clients on defending parallel employment, regulatory and customer matters to ensure that strategies in each are coordinated, thoughtful and complimentary.

During her career, Tracy has tried more than 50 arbitrations to final award. Tracy is skilled in defending employment claims that implicate unique reputational risk, such as claims brought by current employees, SOX and Dodd-Frank whistleblower claims, U5 defamation claims, gender discrimination and hostile work environment claims, and claims arising out of internal investigations, regulatory inquiries and product controversies. Tracy also assists clients with employment matters at their earliest stages, including pre-dispute mediations and charges and complaints brought before the EEOC, OSHA, and similar state agencies.

Tracy developed the firm’s national arbitrator database, which contains background information and awards history for more than 3,500 arbitrators throughout the United States. Tracy has broad experience in arbitrator selection strategy and causal challenges of arbitrators, having consulted in the selection strategy for more than 1,000 arbitration panels. Tracy serves as an arbitrator for FINRA, and is a frequent speaker on the subject of securities arbitration. Tracy also serves on the faculty of the prestigious Securities Industry Institute at the Wharton School of the University of Pennsylvania.

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Photo of Hannah Caplan Hannah Caplan

Hannah Caplan is a trusted advisor on all matters that impact employees. Her practice focuses on providing advice and counsel to employers navigating sensitive legal issues with employees, leading employment support on corporate transactions, and drafting agreements and policies for employees.

In her…

Hannah Caplan is a trusted advisor on all matters that impact employees. Her practice focuses on providing advice and counsel to employers navigating sensitive legal issues with employees, leading employment support on corporate transactions, and drafting agreements and policies for employees.

In her advice and counsel role, Hannah draws on over ten years of litigation and courtroom experience to ensure her clients are well-informed of the risks associated with each potential path. When leading employment due diligence on a deal, she goes the extra mile to learn the business priorities and overall plans before diving in. She rounds out her practice with a variety of drafting and related counseling services, including critical separation agreements for executives, largescale severance agreements and strategy for reductions-in-force, restrictive covenant agreements, and employee handbooks. Hannah’s litigation practice and experience includes defense against discrimination, harassment and retaliation claims, as well as wage payment lawsuits, including collective actions under FLSA. She has also both brought and defended actions involving the protection of trade secrets and violation of restrictive covenants.

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Photo of Jack Gearan Jack Gearan

Jack S. Gearan is a shareholder in the Boston office of Greenberg Traurig, LLP. He concentrates his practice in the areas of Labor & Employment and Litigation, where he defends companies and public institutions in labor and employment, business, and consumer actions, including

…

Jack S. Gearan is a shareholder in the Boston office of Greenberg Traurig, LLP. He concentrates his practice in the areas of Labor & Employment and Litigation, where he defends companies and public institutions in labor and employment, business, and consumer actions, including class and collective actions. He is experienced in complex employment litigation and trials, and frequently handles state and federal whistleblower claims, non-compete and restrictive covenant litigation, trade secret, wage and hour litigation, and individual employee discrimination, harassment, and retaliation litigation and arbitrations. Jack also focuses his practice on handling pharmaceutical and medical device products liability cases.

Jack’s business litigation practice covers a variety of business torts, including misrepresentation, fraud, contract disputes, and claims under Massachusetts General Laws Chapter 93A – the Massachusetts unfair trade practices statute

In addition to defending clients in litigation when necessary, Jack provides counsel to senior management and human resource personnel on various employment law compliance matters, such as leaves of absence, exempt status classification under the FLSA and state law, employee discipline and restrictive covenant agreements. Jack is also regularly called upon by clients to conduct outside independent investigations of sensitive personnel issues or threatened legal actions. Additionally, Jack has advised companies regarding employment law in connection with various corporate transactions, including mergers, acquisitions, and reductions in force.

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  • Posted in:
    Banking, Finance and Securities
  • Blog:
    Financial Services Observer
  • Organization:
    Greenberg Traurig, LLP
  • Article: View Original Source

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