In recent years, the SEC has provided more details in some of its enforcement actions to flesh out the types of remediation efforts and cooperation that may be rewarded with reduced penalties and/or charges. The SEC’s decision to give cooperation credit is discretionary, however, and various factors can make it difficult to assess whether any particular conduct will be rewarded, especially for private funds. In turn, fund managers are raising real questions as to what they can gain, if anything, from going above and beyond to self-remedy violations and cooperate with the SEC. This two-part series reviews the SEC’s cooperation credit regime and how, if at all, private fund managers may reap the benefits. This second article discusses factors that may prevent fund managers from receiving full cooperation credit regardless of how fulsome their remediation efforts are, along with best practices suggested by experts. The first article
summarized the operative facts and takeaways in a case highlighted by the SEC as an example for companies to follow, and suggested an array of self-remediation and cooperation measures the Commission may recognize to reduce penalties. For a review of the SEC’s enforcement efforts in 2022 and current trends, see our two-part series: “A Year of Compliance Sanctions and Warnings for Fund Managers
” (Jan. 12, 2023); and “Lessons When Preparing for 2023 and Exam Trends to Monitor
” (Jan. 26, 2023).