Securities Enforcement & Litigation

When clients face regulatory investigations, become enmeshed in high-stakes litigation, or need guidance on complex regulatory questions, Foley’s Securities Enforcement & Litigation (SEL) Practice Group stands ready to help. Our attorneys are seasoned and proactive advisers deeply immersed in federal and state securities and derivatives laws and the laws, rules, and professional standards under which our clients operate.  

The team consists of more than 50 industry-focused practitioners, former regulatory officials, and experienced trial lawyers. Accordingly, our attorneys have a broad spectrum of legal strengths, representing public companies and their audit committees across many industries, a majority of the top-10 accounting firms in the United States and internationally, broker-dealers, underwriters, futures commission merchants, traders, investment advisers, investment companies, hedge and private equity funds, investment banks, professional futures trading firms, and global derivatives exchanges and clearinghouses. 

The strength of our our group resides in our lawyers’ wide-ranging experiences gained from both private practice and at the regulators themselves. This includes partners who have had extensive tenures at the Securities & Exchange Commission (SEC), Public Company Accounting Oversight Board (PCAOB), and the Chicago Board of Trade as well as in-house at public accounting firms. As a result, we have significant strength advising clients in investigations, inquiries, and enforcement actions conducted by the SEC; the PCAOB; the Commodity Futures Trading Commission (CFTC); the Financial Industry Regulatory Authority (FINRA); securities, derivatives, and options exchanges, including NASDAQ, NYSE, CME, and Cboe; the National Futures Association (NFA); The International Stock Exchange (TISE); state attorneys general offices; and state boards of accountancy. We also partner with our colleagues in the Government Enforcement Defense & Investigations Practice Group when clients may face both regulatory and criminal exposure.  

In litigation matters, our SEL trial lawyers have appeared in state and federal courts across the country, focusing on securities and commodities class actions, shareholder derivative claims, fiduciary duty litigation, merger litigation, post-merger earnout disputes, complex accounting fraud, insider trading, Ponzi-scheme litigation, books and records actions, bankruptcy adversary proceedings, and other related litigation. Our trial lawyers also regularly try arbitrations before FINRA, NFA, and exchange arbitration forums.  

Partners in both the regulatory and litigation segments of our practice regularly advise audit committees and conduct internal investigations with teams in Foley offices from coast to coast. 

SEC Enforcement and Other Regulatory Defense

When clients need help navigating SEC Enforcement inquiries, investigations, or litigation — whether from the SEC’s Washington, D.C. office or its many regional offices — they turn to our deep bench of former SEC attorneys and experienced partners across the country. 

Our SEC Enforcement leaders include partners who have had long tenures at the SEC, including as leaders in both the SEC’s Enforcement and the Examination Divisions as senior counsel, branch chiefs, attorney advisers, and senior and regional trial counsel. Our lawyers regularly interact with the SEC as well as the PCAOB, Department of Justice (DOJ), Federal Deposit Insurance Corporation (FDIC), Department of Labor (DOL), FINRA, and various other federal and state agencies in connection with regulatory inquiries, investigations, and actions.  

Reflecting the group’s breadth of experience, members of our SEL group serve as writers and editors of the Matthew Bender Securities Enforcement: Counseling and Defense treatise, which provides an authoritative guide to defending securities enforcement matters before the SEC, DOJ, and other government authorities. 

Auditor Defense

Our SEL team has over 30 years of experience defending accounting firms in their most critical matters. We regularly represent a majority of the top-10 accounting firms in the United States, including the Big 4, in both civil litigation and regulatory matters before the SEC, the PCAOB, and various state boards of accountancy. Several of our lawyers are Certified Public Accountants (CPAs), and practice leadership includes the first employee within the PCAOB’s Division of Enforcement and Investigations, former SEC Enforcement counsel with experience prosecuting auditing matters, and former in-house counsel at a major U.S. accounting firm. 

Our practice covers all federal and state regulatory regimes governing auditors and extends internationally to almost every continent, with lawyers proficient in multiple foreign languages, including Spanish, German, Japanese, and Korean. 

In addition to representing firms in both regulatory investigations and complex litigation, we also advise firms on organizational, transactional, and compliance matters. Our lawyers know not only the laws, rules, and professional standards that govern the accounting profession but also how accounting firms are organized and operate. In that vein, we have partnered with multiple accounting firms on significant structural, transactional, and operational issues. 

Reflecting our experience, SEL authors and edits the nationally recognized Accountants’ Liability treatise (Third Edition) published by Practising Law Institute (PLI), which provides a comprehensive guide to auditor liability and defending accounting firms in both private litigation and regulatory investigations. It also offers insights on the applicable laws, rules, and professional standards promulgated by organizations such as the Financial Accounting Standards Board (FASB), American Institute of Certified Public Accountants (AICPA), National Association of State Boards of Accountancy (NASBA), and other organizations that govern the profession. 

Issuer Liability and Audit Committee Representations

Our issuer liability practice features partners with more than 30 years of experience defending securities class actions, securities litigation, director and officer fiduciary duty and corporate governance disputes, and corporate litigation involving complex accounting and financial issues.  

With our extensive experience working with audit firms, our team is uniquely suited to counsel audit committees on addressing the responsibilities of auditors under Section 10A of the Securities Exchange Act of 1934. Over the years, we have led audit committee investigations for numerous publicly held companies; in fact, no other firm in the country may be as well positioned to handle such investigations. We have unparalleled insight into what audit committees need to provide to auditors to successfully complete an audit and to assess potential wrongdoing. 

Our securities practitioners have partnered with our preeminent transactional and government enforcement lawyers to author the Practising Law Institute’s (PLI) comprehensive guide to audit committees, the Audit Committee Deskbook, addressing powers and duties, D&O insurance considerations, handling reports and investigations under Section 10A, whistleblowers, recent issues confronting audit committee oversight in multinational corporations, and much more.  

Derivatives Regulatory and Enforcement Representations

Beyond our securities practice, our partners regularly advise futures commission merchants, introducing brokers, commodity trading advisors and pool operators, professional trading firms, commercial hedgers, global derivatives exchanges and clearinghouses, and other financial industry clients on a range of matters involving their derivatives activities. We represent clients in complex litigation in federal and state courts; arbitration proceedings before the NFA; enforcement matters before the CFTC, exchanges, or NFA; and we provide regulatory counseling to clients with respect to the how the Commodity Exchange Act or federal securities laws apply to their derivarives activities. We also conduct internal investigations and assist clients in obtaining appropriate registrations. 

Our extensive derivatives regulatory experience uniquely positions Foley to assist clients in evaluating, understanding, and complying with the complicated derivatives regulatory framework. We have a deep understanding of how regulation — and changes to regulation — impact the structure and operation of the derivatives markets, the interrelationships between OTC and organized markets, and the interrelationships across market facilities, i.e., exchanges and other trading facilities, clearing houses, and trade data repositories.