Acting Enforcement Director Marc P. Berger to Depart the Commission
Washington D. C. ,
Jan. 12, 2021 —
The Securities and
Exchange Commission today announced that Marc P. Berger, Acting
Director of the Division of Enforcement, will conclude his tenure at
the agency this month. Mr. Berger joined the Commission as Director of
the New York Regional Office in December 2017 and was named Deputy
Director of the Division of Enforcement in August 2020.
Under
Mr. Berger's leadership, Enforcement staff pursued significant cases
across the entire spectrum of the securities industry, with a focus on
impactful and timely actions that protected investors and promoted
market integrity. Mr. Berger focused on enhancing the efficiency and
effectiveness of the Enforcement Division as well as the Division of
Examinations programs in New York, better positioning the staff in
both Divisions to address emerging threats and pursue misconduct. Mr.
Berger prioritized the promotion of diversity and inclusion across the
Enforcement Division and New York Regional Office, fostering a culture
of teamwork and integrity and implementing changes to help the SEC
continue building and maintaining a diverse workforce. He also
facilitated investor outreach and encouraged coordination with the
SEC's federal and state partners.
"Marc has been an
outstanding leader at the Commission, always bringing integrity and
excellent judgment, as well as his experience from his many years as a
federal prosecutor, to each of the matters under his leadership," said
Acting Chairman Elad L. Roisman. "Throughout his tenure, Marc
maintained an impressive focus on aggressively pursuing bad actors and
finding the best outcome for harmed investors and for the greater
investing public. Marc is widely respected throughout the Commission
not only for his significant efforts to advance the SEC's mission, but
also for his dedication to each of the attorneys, examiners,
accountants, analysts, administrative and support staff, and other
professionals who he has worked beside each day of his tenure. "
"The Commission staff's unwavering commitment to protecting
investors and maintaining market integrity, and their passion for the
work we do, will forever inspire me," said Mr. Berger. "I am honored
to have had the opportunity to work alongside them — in New York and
throughout the country — and I am proud of what we have accomplished
together. "
Impactful cases to protect investors and preserve
market integrity
Under Mr. Berger's leadership, the Division
of Enforcement focused on addressing misconduct involving market
integrity and market structure for the protection of investors.
Notable actions included an action against Robinhood Financial LLC for
misstatements involving the receipt of payment for order flow and
violations of the duty to seek best execution, as well as actions
against Credit Suisse Securities (USA) LLC in connection with the
handling of certain customer orders and against the New York Stock
Exchange and two affiliated exchanges for regulatory failures,
including the first-ever charged violation of Regulation SCI.
The Division also pursued abusive trading practices under Mr.
Berger’s leadership, including an action against J. P. Morgan
Securities LLC for engaging in manipulative trading of U. S. Treasury
securities, and an action for insider trading involving companies that
were going to be added to or removed from a popular stock market
index. Mr. Berger oversaw jury trials in the Southern District of New
York involving a broker charged with fraud for excessively trading
customer accounts and a brokerage firm and two of its executives in
connection with misrepresentations and omissions in a private
placement offering.
During his tenure, reflecting the focus
on investor protections, particularly involving the evaluation of
complex products, the Commission brought actions against three
investment advisory firms and two dually registered broker-dealer and
advisory firms through its Exchange-Traded Products Initiative. The
initiative utilized trading data analytics to uncover securities law
violations involving unsuitable sales of complex exchange-traded
products.
Pursuing violations of the Foreign Corrupt
Practices Act
The Division continued to focus on areas that
have traditionally been an important part of its enforcement efforts,
including actions under Mr. Berger's leadership for violations of the
Foreign Corrupt Practices Act. These included actions against Deutsche
Bank AG for violations related to third-party intermediaries, against
Herbalife Nutrition Ltd. for payments to Chinese officials in
connection with obtaining sales licenses, and against Stryker Corp.
for inadequate internal accounting controls related to overseas sales.
Focus on financial fraud and issuer disclosure
The
Division also maintained its ongoing focus on identifying and
investigating securities laws violations involving the integrity and
accuracy of the financial statements of public companies, including
violations by individuals. Notable actions include those against
Luckin Coffee, General Electric, Hertz and its former CEO, Lumber
Liquidators, PPG Industries, Inc. as well as Brixmor Property Group
and certain former executives.
Combating unregistered initial
coin offerings
The Commission brought significant enforcement
actions under Mr. Berger's leadership involving unregistered initial
coin offerings that deprived investors of key long-standing
protections important to our public market system. These included an
action against Telegram Group Inc. , which agreed to return more than
$1. 2 billion to investors. They also include an ongoing action
against Ripple Labs Inc. and two of its executives. Enforcement staff
has also pursued issuers for conducting fraudulent ICOs.
Pursuing meaningful relief, combating affinity fraud, and
engaging in effective outreach
Enforcement staff under Mr.
Berger's leadership focused on obtaining meaningful relief for
investors. Notable recent actions include an action against investment
adviser BlueCrest Capital Management Limited, which will result in the
return of $170 million to harmed investors, and actions involving
asset freezes in connection with a cryptocurrency trading fund and an
offering of digital securities.
Mr. Berger also placed
particular focus on combating fraud targeting potential victims based
on race, ethnicity, religion, gender, age, and other associations.
Illustrative examples include actions involving conduct targeting
members of the Haitian, Hispanic, and Deaf, Hard of Hearing, and
Hearing Loss communities, among others, and Mr. Berger's participation
in an educational video from the Retail Strategy Task Force
encouraging investors in the Deaf, Hard of Hearing, and Hearing Loss
communities to learn more about how to protect themselves from
investment fraud.
Engagement with investors has been an
important aspect of Mr. Berger's tenure at the SEC, including through
personal outreach at numerous public community events. Under his
leadership, the New York Regional Office hosted a conference with
Fordham University on combating community-based financial fraud,
featuring speakers from our federal and state partners. It also
spearheaded an Investor Outreach Committee which focuses on local
outreach to, and education for, teachers, military and veterans,
police and firefighters, senior center residents, religious
organizations, and community schools and colleges, among other groups.
Meaningful action in response to COVID-19
In response
to COVID-19, the Division continued its existing caseload, while also
focusing on pursuing potential misconduct that arose as a result of
COVID-19 and educating investors alongside our criminal and regulatory
counterparts about COVID-related fraud. Under Mr. Berger's leadership,
the Commission issued trading suspensions in the securities of
numerous issuers that made claims related to COVID-19. The Division
brought fraud charges against Applied BioSciences Corp. for the
company’s alleged false claims that it had begun offering finger-prick
COVID-19 tests and against Decision Diagnostics Corp. and its CEO
alleging false and misleading claims regarding a purported
breakthrough technology to detect COVID-19 through a quick blood test.
The Commission also brought an action against The Cheesecake
Factory for making misleading disclosures about the impact of the
COVID-19 pandemic on its business operations and financial condition –
failing to publicly disclose material information that it shared with
potential private investors and lenders — which is the first case
charging a public company for misleading investors about the financial
effects of the pandemic.
Promoting and fostering diversity
and inclusion
Mr. Berger brought a personal commitment to
diversity and inclusion to each of his roles at the Commission,
working with the Office of Minority and Women Inclusion, employee
affinity groups, and others to foster efforts to promote diversity and
inclusion and to foster collaboration, teamwork, and diversity of
thought. In the New York Regional Office, Mr. Berger launched a
Diversity Committee to provide a forum to discuss issues related to
diversity, to assist with recruitment initiatives, and to promote
fellowship among coworkers, including through impactful events in
coordination with other affinity groups. Mr. Berger similarly focused
on diversity and inclusion across the Division, encouraging meaningful
improvements to enhance diversity and inclusion in the workplace.
Making a lasting impact on the Commission through enhancing
efficiencies and effectiveness
Mr. Berger assisted the
creation and implementation of the Event and Emerging Risk Examination
Team in the Division of Examinations. The team proactively engages
with financial firms about emerging threats and current market events
and provides expertise and resources across the SEC when critical
matters arise.
Mr. Berger also brought innovation to the New
York Regional Office's Investment Adviser/Investment Company and
Broker-Dealer and Exchange Examinations Programs, enhancing the
process for making and evaluating referrals from the Division of
Examinations to the Division of Enforcement, improving coordination of
examinations of dually registered broker-dealer and advisory firms,
and initiating a series of Investment Adviser Compliance Outreach
Netcasts to increase information flow to SEC registrants.
Prior to joining the SEC, Mr. Berger was the Global Co-Head of
Ropes & Gray LLP’s Securities and Enforcement Practice. From 2002 to
2014, Mr. Berger served as an Assistant United States Attorney in the
Southern District of New York. He was Chief of the Office's Securities
and Commodities Fraud Task Force, where he supervised the
investigation and prosecution of many of the nation’s highest profile
financial and investment fraud cases, including the largest crackdown
on hedge fund insider trading in U. S. history. Mr. Berger received
his bachelor's degree with distinction from Cornell University and
earned his law degree from the University of Virginia School of Law.
He served as a law clerk to the Honorable Richard M. Berman, U. S.
District Judge, Southern District of New York.