After learning it is under SEC investigation, a manager can address the SEC’s allegations – through what is known as the Wells process – before the Commission decides whether to bring an enforcement action. Although managers focus on the underlying SEC accusations, there are risks associated with the Wells process itself. Not only can unsuccessful navigation increase the likelihood of charges by the SEC’s Enforcement Division (Enforcement), but also, as evidenced in an SEC civil complaint, deficiencies in the Wells process can prompt additional SEC claims against a manager. Fortunately, the SEC has delivered several public statements on how to navigate the Wells process, including a 2018 speech by then‑Co‑Director of Enforcement, Steven Peikin, as well as commentary by other Enforcement staff, all of which offer valuable insights for how fund managers can navigate the Wells process. This second article in a three-part series examines the views of Enforcement members on the Wells process in light of an SEC complaint alleging deficiencies in a fund manager’s Wells submission. The first article
discussed the origins of the Wells process, its key elements and the impact of the Dodd-Frank Act. The third article
will explain the pre-Wells notice process and key steps of the process overall, including ways for a manager to determine whether to offer a Wells submission in response to a Wells notice. For coverage of another speech by Peikin, see “What Remedies and Relief Can Fund Managers Expect in SEC Enforcement Actions?
” (Jan. 10, 2019).