Robin M. Bergen

Robin M. Bergen’s practice focuses on government and internal investigations, and regulatory enforcement and examination of broker-dealers and investment advisers.

Firm/Organization: Cleary Gottlieb Steen & Hamilton LLP

Blogs: Cleary Enforcement Watch

Latest Articles

Cleary Enforcement Watch

OCIE Cybersecurity and Resiliency Observations and Best Practices

By Robin M. Bergen, Alexis Collins, Zachary Baum & Veronica Joubert

February 5, 2020

On January 27, 2020, the U.S. Securities and Exchange Commission (“SEC”) Office of Compliance Inspections and Examinations (“OCIE”) issued examination observations related to cybersecurity and operational resiliency practices (“Examination Observations”). The observations highlight a set of best practices by market participants in the following areas: (1) governance and risk management, (2) access rights and controls, (3) data loss prevention, (4) mobile security, (5) incident response and resiliency, (6) vendor management and (7) training and awareness. Cybersecurity has…

Cleary Enforcement Watch

Second Circuit: Criminal Fraud Statutes Do Not Require Prosecutors to Show that Tippers in Insider-Trading Cases Received a “Personal Benefit”

By David E. Brodsky, Lev L. Dassin, Victor L. Hou, Jonathan S. Kolodner, Robin M. Bergen & Matthew C. Solomon

January 13, 2020

The Second Circuit has made it easier for federal prosecutors to bring insider-trading cases. In United States v. Blaszczak, decided on December 30, 2019, the Court held that the personal-benefit test—a judge-made rule that the government must prove a tipper expected to receive some benefit in exchange for disclosing confidential information—does not apply to insider‑trading prosecutions brought under certain federal criminal fraud statutes. The Blaszczak decision thus opens the door to insider-trading prosecutions where a…

Cleary Enforcement Watch

From the Expected to the Surprises: Highlights of SEC OCIE’s 2020 Priorities

By Richard S. Lincer, Robin M. Bergen & Zachary Baum

January 10, 2020

On January 7, 2020, the U.S. Securities and Exchange Commission (“SEC”) Office of Compliance Inspections and Examinations (“OCIE”) released its 2020 Examination Priorities (“2020 Priorities”). While at first blush the themes appear consistent with and predictable from their 2019 priorities, on closer read OCIE has provided some new insights and some unexpected focus areas. The themes for the 2020 Priorities are: retail investors, information security, financial technology (“Fintech”) and innovation (including digital assets and electronic…

Cleary Enforcement Watch

Headwinds and Shifting Priorities: Beyond the Numbers In The SEC Enforcement Division’s 2019 Annual Report

By Robin M. Bergen, Matthew C. Solomon, Alex Janghorbani, Jenny Paul & Samuel H. Chang

November 11, 2019

On November 6, 2019, the SEC’s Division of Enforcement released its annual report (the “Report”) describing its enforcement actions from fiscal year 2019.[1] Like prior reports, the Report quantifies the Division’s activities in a number of ways and discusses priority areas going forward. The Report also brings front-and-center certain challenges the Division has faced – including difficulties navigating recent Supreme Court decisions that call into question the constitutionality of the SEC’s administrative proceedings…

Cleary Enforcement Watch

Supreme Court to Consider Whether the SEC Has Authority to Seek Disgorgement in Federal Court Actions: Will the Court Further Prune the SEC’s Enforcement Powers?

By Jennifer Kennedy Park, Alex Janghorbani, Robin M. Bergen, Matthew C. Solomon & Alexis Collins

November 5, 2019

On November 1, 2019, the Supreme Court granted certiorari in Liu v. SEC to decide whether the Securities and Exchange Commission can obtain disgorgement as an equitable remedy in federal court enforcement actions. The certiorari grant in this case is unusual, because the circuit courts that have considered the issue have all agreed that the SEC can obtain disgorgement from a district court exercising its equitable authority. Depending on how the Court rules, this case…

Cleary Enforcement Watch

SEC Brings Settled Action Against Mylan N.V. for Alleged Failure to Disclose Government Investigation

By Robin M. Bergen, Matthew C. Solomon, Adam Fleisher, Rahul Mukhi & Alex Janghorbani

October 8, 2019

Companies that face non-public government investigations frequently confront challenging questions regarding whether and when to disclose the existence of the investigation, how much to disclose, and any duty to update the disclosure as the investigation proceeds. The SEC recently filed a settled complaint alleging that Mylan committed accounting and disclosure violations for failing to timely disclose an otherwise confidential DOJ investigation into whether Mylan overcharged Medicaid for its largest revenue and profit generating product, the…

Cleary Enforcement Watch

SEC’s OCIE Affiliate Transaction Risk Alert Highlights Pitfalls in Obtaining Effective Consent

By Richard S. Lincer, Robin M. Bergen, Alex Janghorbani, John Lightbourne & Amber V. Phillips

October 3, 2019

On September 4, 2019, the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) issued a Risk Alert addressing the most common compliance issues it identified in examinations of investment advisers (“Advisers”) related to principal and agency cross transactions.…

Cleary Enforcement Watch

SEC to Allow Settling Parties to Submit Simultaneous Settlement Offers and Applications for Waiver from Disqualifications

By Joon H. Kim, Robin M. Bergen, Matthew C. Solomon, Alex Janghorbani & David E. Wagner

July 11, 2019

On July 3, SEC Chairman Jay Clayton issued a statement signaling a policy change in SEC settlements and the consideration of applications for waiver of collateral consequences flowing from those settlements, such as the loss of certain significant procedural advantages in (or even outright exemption from) the securities registration process.[1] In practice, this change could both streamline the process of settling enforcement actions with the SEC and provide additional certainty to settling entities,…

Cleary Enforcement Watch

Proposed Bad Actor Disqualification Act of 2019 Would Severely Limit the Availability of Waivers for Institutions Entering into Settlements with the SEC and DOJ

By Robin M. Bergen, Matthew C. Solomon, Joon H. Kim & Alex Janghorbani

July 9, 2019

Last month, Representative Maxine Waters, Chair of the House Financial Services Committee, introduced a discussion draft of the “Bad Actor Disqualification Act of 2019” (the “Proposed Act”). Similar to proposed legislation Rep. Waters introduced in 2015 and 2017, the effect of the Proposed Act, if passed, would be to dramatically increase the burdens on institutions seeking waivers from disqualifications under the federal securities laws, including those for Well-Known Seasoned Issuers (“WKSI”), certain exemptions from registering…

Cleary Enforcement Watch

SEC Adopts Regulation Best Interest and Investment Adviser Conduct Guidance

By Richard S. Lincer, Robin M. Bergen, Colin D. Lloyd, Carl F. Emigholz, Zachary Baum & Jim Wintering

June 20, 2019

On June 5, 2019, the Securities and Exchange Commission (“SEC”) finalized Regulation Best Interest (“Reg BI” or the “Final Rule”) under the Securities Exchange Act of 1934 (“Exchange Act”) to establish a new “best interest” standard of conduct for broker-dealers when making a recommendation of any transaction or investment strategy involving securities to a retail customer. The SEC also finalized its interpretation of the fiduciary duty applicable to investment advisers (the “Guidance”) under the Investment…

Robin M. Bergen

OCIE Cybersecurity and Resiliency Observations and Best Practices

Second Circuit: Criminal Fraud Statutes Do Not Require Prosecutors to Show that Tippers in Insider-Trading Cases Received a “Personal Benefit”

From the Expected to the Surprises: Highlights of SEC OCIE’s 2020 Priorities

Headwinds and Shifting Priorities: Beyond the Numbers In The SEC Enforcement Division’s 2019 Annual Report

Supreme Court to Consider Whether the SEC Has Authority to Seek Disgorgement in Federal Court Actions: Will the Court Further Prune the SEC’s Enforcement Powers?

SEC Brings Settled Action Against Mylan N.V. for Alleged Failure to Disclose Government Investigation

SEC’s OCIE Affiliate Transaction Risk Alert Highlights Pitfalls in Obtaining Effective Consent

SEC to Allow Settling Parties to Submit Simultaneous Settlement Offers and Applications for Waiver from Disqualifications

Proposed Bad Actor Disqualification Act of 2019 Would Severely Limit the Availability of Waivers for Institutions Entering into Settlements with the SEC and DOJ

SEC Adopts Regulation Best Interest and Investment Adviser Conduct Guidance

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