Homer Bonner Jacobs Ortiz attorneys have substantial experience representing organizations and individuals who have become subjects of investigations or enforcement proceedings by federal and state governmental agencies, including the Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), Financial Industry Regulatory Authority (FINRA), Commodity Futures Trading Commission (CFTC), U.S. Department of Justice (DOJ), U.S. Department of Education (ED), Consumer Financial Protection Bureau (CFPB), Federal Communications Commission, U.S. Environmental Protection Agency, U.S. Food and Drug Administration, and State Attorneys General.
In these matters, the firm’s clients include securities broker-dealers, investment advisors, investment companies, hedge funds, publicly-held companies, banks, insurance companies, for-profit schools, accounting firms, commodities firms, futures commission merchants, precious metals dealers, as well as the officers, directors, partners and employees of these companies, and others.
Representing a client in a regulatory enforcement investigation or proceeding presents challenges and requires strategies different from those involved in representing a client in civil litigation or a commercial dispute. Because the initiation of an enforcement action by a regulator can severely damage reputation and business prospects, our team recognizes the importance of negotiating with regulators at the earliest stage possible to demonstrate that an enforcement action is unwarranted. We take proactive steps during the non-public stage of an investigation before regulators have decided whether to proceed.
If an enforcement action cannot be avoided, the firm is well prepared to litigate against any governmental agency or self-regulatory organization in court, in administrative proceedings, and, if necessary, on appeal. We have aggressively litigated against most regulators on various issues, including temporary restraining orders, preliminary injunctions, and limiting the scope of or overturning orders involving asset freezes.
The firm also has significant experience in conducting corporate internal investigations arising from FINRA, SEC, FTC, DOJ, and ED inquiries, as well as Sarbanes-Oxley and employee issues. We work discreetly and carefully to investigate sensitive issues and advise clients on corrective actions, which may include devising compliance plans or self-disclosure to regulators.
Regulatory Enforcement Proceedings
The recent regulatory enforcement climate has been unprecedented, both in terms of the wide range of matters being investigated and the aggressiveness of various regulators. In particular, the CFPB, CFTC, and FTC have been extremely active within their ever-expanding dominions. Homer Bonner Jacobs Ortiz has a long and accomplished record of defending businesses and individuals against regulatory agency enforcement actions. Some notable results in the area include:
- CFTC v. Wilshire Investment Management Corp., 531 F.3d 1339 (11th Cir. 2008). In this 11th Circuit opinion, the firm obtained a reversal of an award of restitution in an enforcement action on the grounds that equitable restitution under the CFTC Act could not be based on customer losses.
- CFTC v. Erskine, 512 F.3d 309 (6th Cir. 2008). The firm successfully opposed the CFTC’s appeal of a summary judgment order holding that the defendants’ forex transactions were outside of the CFTC’s jurisdiction. Our firm drafted the brief and cooperated with co-counsel in obtaining an affirmance by the 6th Circuit. This ruling, together with the rulings in CFTC v. Zelener, 373 F.3d 861 (7th Cir. 2004), and CFTC v. Wilshire Investment Management Corp., 531 F.3d 1339 (11th Cir. 2008) (see above), precipitated certain changes in the law in the Dodd-Frank Act.
- American Financial Trading Corp. v. Bauer, 828 So. 2d 1071 (Fla. 4th DCA 2002). The firm was able to obtain the reversal of an order of dismissal for lack of personal jurisdiction under Florida’s long-arm statute by hiring a commodity broker in Florida.
White Collar Criminal Defense
Homer Bonner Jacobs Ortiz’s white collar criminal defense team defends clients from the United States, Latin America, and elsewhere who may be targets of criminal investigations or regulatory agency action. While the initial goal of any such representation is to avoid a criminal proceeding, the firm routinely counsels clients regarding the consequences of criminal exposure, compliance programs, and preventative measures.
We represent clients who are the subject or target of criminal or regulatory investigations, and aggressively defend those who have been charged. The team includes former federal prosecutors and SEC Enforcement attorneys who have expertise in representing corporations, executives, and professionals in matters including: accounting fraud, bank fraud, bribery, Foreign Corrupt Practices Act violations, False Claims Act/qui tam actions, embezzlement, health care fraud, mail & wire fraud, money laundering, securities fraud, and tax fraud.
We have substantial experience dealing with federal and state criminal and regulatory authorities, and are battle-tested in trial.