Enforcement Actions Resulting From SEC Sweep Keep Off‑Channel Communications in the Spotlight

Off-channel communications have been squarely in the SEC’s sights for nearly two years, and the Commission shows no signs of softening its focus. On August 8, 2023, the SEC announced charges against ten Wall Street firms in their capacity as broker-dealers and one additional firm as a dually registered broker-dealer and investment adviser. According to the SEC’s press release, the charges were for “widespread and longstanding failures by the firms and their employees to maintain and preserve electronic communications,” and the firms all admitted to wrongdoing and agreed to pay penalties totaling $289 million. This article summarizes key takeaways from the SEC settlement orders and insights from industry experts. It discusses the firms involved; outlines the regulatory rules and policies related to recordkeeping; and underscores the significance of cooperation credit and the potential impact on penalties. See our three‑part series on electronic communications: “Current Technological Landscape and Relevant Regulatory Measures“ (Jul. 13, 2021); “Useful Training Techniques and Policies and Procedures to Adopt“ (Jul. 20, 2021); and “Using Third Parties for Compliance, Mitigating Social Media Risks and Fulfilling Document Requests“ (Jul. 27, 2021).

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