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

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 on 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 on 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 on 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…

Cleary Enforcement Watch

SEC Privacy Risk Alert may Foreshadow Upcoming Reg S-P Enforcement Against Broker-Dealers, Investment Advisers

By Robin M. Bergen, Margot G. Mooney, Anne Titus Hilby & Jim Wintering on May 15, 2019

On April 16, 2019, the U.S. Securities and Exchange Commission’s (“SEC”) Office of Compliance Inspections and Examinations (“OCIE”) issued a Risk Alert addressing all registered broker-dealers and investment advisers’ (together, “Firms”)[1] privacy-related obligations under Regulation S-P (“Reg S-P”). The Risk Alert set out the most frequent Reg S-P deficiencies OCIE identified during examinations over the past two years, and encouraged registrants to review their written privacy policies and procedures as well as the consistency…

Cleary Enforcement Watch

CFTC Division of Enforcement Releases First Public Enforcement Manual

By Breon S. Peace, Robin M. Bergen & Nowell D. Bamberger on May 13, 2019

On May 8, 2019, the Division of Enforcement of the Commodity Futures Trading Commission released an Enforcement Manual – the first public document of its kind from the Division. Though the Manual does not reveal any significant shifts in policy, it will undoubtedly serve as an important resource for individuals and entities dealing with CFTC enforcement actions. The Division’s decision to publish an enforcement manual continues a trend of providing more public guidance regarding the…

Cleary Enforcement Watch

FINRA Proposes Rules Targeting Firms With History of Misconduct

By Robin M. Bergen, Carl F. Emigholz, Phillip L. Hurst & Samuel H. Chang on May 13, 2019

On May 2, 2019, FINRA proposed new rules to designate “high-risk” firms and strengthen its ability to impose additional obligations on those firms.[1] Proposed Rule 4111 would authorize FINRA to designate “Restricted Firms” based on the number of event disclosures made by the firm and its registered persons. Restricted Firms would be subject to limitations on their operations and could be required to maintain restricted deposits that could only be withdrawn with FINRA’s consent.…

Cleary Enforcement Watch

Supreme Court Finds Rule 10b-5’s “Scheme Liability” Provisions Reach Use of False Statement

By Roger A. Cooper, Victor L. Hou, Alex Janghorbani, Leslie N. Silverman, Robin M. Bergen & Matthew C. Solomon on April 1, 2019

On March 27, 2019, the Supreme Court issued a 6-to-2 decision in Lorenzo v. SEC focusing on the distinction between “making” a false statement under Exchange Act Rule 10b-5(b) and engaging in deceptive conduct—so-called “scheme liability”—under Rules 10b-5(a) and (c). The Court upheld a D.C. Circuit majority decision concluding that the SEC could hold an investment banker primarily liable for circulating false emails to investors even where he did not personally author the content of those messages.…

Cleary Enforcement Watch

Lessons from the SEC Office of Compliance Inspections and Examinations’ 2019 Priorities

By Robin M. Bergen, Alexis Collins & Zachary Baum on January 2, 2019

On December 20, 2018, the U.S. Securities and Exchange Commission (“SEC”) Office of Compliance Inspections and Examinations (“OCIE”) released its 2019 Examination Priorities. The six themes for this year’s priorities are: retail investors (including seniors and those saving for retirement), compliance and risk in registrants responsible for critical market infrastructure (clearing agencies, transfer agents, national securities exchanges and Regulation SCI entities), oversight of the Financial Industry Regulatory Authority and Municipal Securities Rulemaking Board, digital assets,…

Cleary Enforcement Watch

Virtual Currencies, Manipulation, Cooperation, and More: CFTC Enforcement Division’s 2018 Annual Report

By Nowell D. Bamberger, Robin M. Bergen & Emily Michael on November 26, 2018

On November 15, 2018, the Division of Enforcement (the “Division”) of the U.S. Commodity Futures Trading Commission (“CFTC”) released its Annual Report on the Division of Enforcement (the “Report”), highlighting the enforcement division’s recent initiatives and reinforcing its focus on cooperation and self-reporting. The Report provides a succinct overview of the Division’s enforcement priorities over the last year, discusses its overall enforcement philosophy, sets out key metrics about the cases brought in the last year,…

Cleary Enforcement Watch

Retail, Remedies, Resources and Results: Observations From the SEC Enforcement Division 2018 Annual Report

By Robin M. Bergen, Matthew C. Solomon, Alexis Collins, Anne Titus Hilby & Adam Motiwala on November 6, 2018

On November 2, the SEC’s Enforcement Division released its annual report detailing the facts and figures of its enforcement efforts in fiscal year 2018. At first blush, this year’s report looks strikingly similar to those from recent years, as the headline numbers in most categories are nearly indistinguishable from 2015, 2016, and 2017. This consistency may be surprising given that 2018 is the first such report reflecting exclusively the enforcement priorities of the Commission since…

Robin M. Bergen

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

SEC Privacy Risk Alert may Foreshadow Upcoming Reg S-P Enforcement Against Broker-Dealers, Investment Advisers

CFTC Division of Enforcement Releases First Public Enforcement Manual

FINRA Proposes Rules Targeting Firms With History of Misconduct

Supreme Court Finds Rule 10b-5’s “Scheme Liability” Provisions Reach Use of False Statement

Lessons from the SEC Office of Compliance Inspections and Examinations’ 2019 Priorities

Virtual Currencies, Manipulation, Cooperation, and More: CFTC Enforcement Division’s 2018 Annual Report

Retail, Remedies, Resources and Results: Observations From the SEC Enforcement Division 2018 Annual Report

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