SEC.gov | SEC Charges Exchange-Traded Product and Its General Partner With Disclosure Failures

The Securities and Exchange Commission today charged United States Oil Fund LP, an exchange-traded product (ETP), and its general partner United States Commodity Funds LLC for misleading statements about limitations imposed by its sole futures commission merchant and broker. USO and USCF have agreed to pay $2.5 million in penalties to settle parallel cases by the SEC and Commodity Futures Trading Commission

According to the SEC’s order, USO’s investment objective is to track the changes in the spot price of oil, as measured by the changes in prices of certain oil futures contracts. In April 2020, in the midst of oil market turmoil and the near-month futures contract closing at a negative price, USO’s sole futures broker told USO it would not execute any new oil futures positions for USO. As a result of this limitation, USO was restricted from investing the proceeds generated by the future sale of newly created shares in oil future contracts, creating the risk that USO would not be able to meet its stated investment objective. The order finds that USO did not fully disclose the character and nature of the limitation until one month after the limit was first imposed.

“ETP issuers must ensure that all of their disclosures are timely, complete and accurate and in compliance with the federal securities laws,” said Osman Nawaz, Acting Chief of the SEC Enforcement Division’s Complex Financial Instruments Unit. “We will continue to pursue violations involving ETPs, including those ETPs using futures-linked and other complex strategies and structures.”

The SEC’s order finds that USO and USCF violated a negligence-based anti-fraud provision of the federal securities laws. Without admitting or denying the SEC’s findings, USO and USCF agreed to cease-and-desist orders and to pay a $2.5 million penalty, which will be offset by up to $1.25 million paid in CFTC’s parallel proceeding.  

The SEC’s investigation was conducted by Dee Raibourn and Joshua Brodsky with assistance from Daniel Nigro of the Complex Financial Instruments Unit. The investigation was further assisted by B. David Fraser and Matt Gulde of the Fort Worth Regional Office, and Mark Sylvester and Ling Yu of the New York Regional Office. The investigation was supervised by Mr. Nawaz and Eric Werner of the Fort Worth Regional Office. The SEC appreciates the assistance of the CFTC.

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SEC.gov | SEC Appoints New Chairperson and Board Members to the Public Company Accounting Oversight Board

The Securities and Exchange Commission today announced the appointments of Erica Y. Williams as Chairperson and Christina Ho, Kara M. Stein, and Anthony (Tony) C. Thompson as Board members of the Public Company Accounting Oversight Board (PCAOB). Duane DesParte will continue his service as a Board member and will remain Acting Chairperson until Ms. Williams is sworn in.

“The PCAOB was formed in response to a crisis of confidence in the corporate disclosures of issuers after the WorldCom and Enron accounting scandals nearly 20 years ago. Finance is about trust, and the PCAOB has a critical role to play in ensuring that public company financial disclosures can be trusted by investors,” said SEC Chair Gary Gensler. “With these additions to the Board, the PCAOB will have the leadership to meet the mission given to it by Congress. Erica, Christina, Kara, and Tony have demonstrated deep commitment to public service. They will represent the interests of investors and the public at the PCAOB. I would like to thank Duane DesParte for his valuable service as acting chairperson during the last several months, and I am pleased that he will stay on as a key member of the Board.”

The Sarbanes-Oxley Act of 2002 established the PCAOB to oversee the audits of public companies and registered broker-dealers through registration, standard-setting, inspection, and disciplinary programs. Under the Act, the Commission selects members and the Chairperson of the Board. The Board is subject to oversight by the SEC.

SEC Acting Chief Accountant Paul Munter said, “I look forward to working with this new Board to further the PCAOB's vital mission.”

PCAOB Members

Erica Y. Williams (Chairperson) spent more than a decade in various roles at the SEC, including as Deputy Chief of Staff to three former SEC Chairs and Assistant Chief Litigation Counsel in the SEC’s Division of Enforcement trial unit. At the SEC, she managed legal and operational functions and managed workflow relating to recommendations from the Division of Enforcement and Office of Compliance, Inspections and Examinations (now Division of Examinations). After leaving the SEC, she served as Special Assistant and Associate Counsel to President Obama with a focus on financial and economic policy issues. Ms. Williams joins the PCAOB from Kirkland & Ellis LLP, where she is a litigation partner. Ms. Williams earned both a J.D. and a B.A. from the University of Virginia.

Duane M. DesParte, a CPA, has served as the PCAOB’s Acting Chairperson since June 4, 2021. He was appointed as a member of the PCAOB by the SEC in December 2017 and was sworn in on April 9, 2018. He joined the Board after retiring from Exelon Corporation, where he served as chief accounting officer and corporate controller and in other financial roles for 15 years, following an 18-year career in the audit assurance profession. He graduated with highest honors from the University of Illinois at Urbana-Champaign with a B.S. in accountancy.

Christina Ho has 28 years of broad experience in public finance, policy development, accounting and auditing, disclosure modernization, data analytics, and technology innovation. She most recently was Vice President of Government Analytics and Innovation at Elder Research. Ms. Ho previously served as the Deputy Assistant Secretary for Financial Transparency & Accounting Policy at the U.S. Department of the Treasury and as Controller and Interim Chief Financial Officer for the University of Maryland College Park. Ms. Ho has held other senior positions with the U.S. Department of the Treasury and was a Senior Manager with Deloitte & Touche LLP. She earned a B.S. from Edinboro University of Pennsylvania.

Kara M. Stein served as a Commissioner of the SEC from 2013 to 2019. She currently serves as a Distinguished Policy Fellow and Lecturer-in-Law at the University of Pennsylvania Carey Law School and is Director of the AI, Data, and Capital Markets Initiative at the Center on Innovation, University of California Hastings Law. Earlier in her career, she was Senior Policy Advisor for securities and banking matters for U.S. Senator Jack Reed and Majority Staff Director of the Securities, Insurance, and Investment Subcommittee of the U.S. Senate Committee on Banking, Housing, and Urban Affairs. Ms. Stein earned a J.D. from Yale Law School and a B.A. from Yale College.

Anthony (Tony) C. Thompson currently serves as the Executive Director and Chief Administrative Officer of the Commodity Futures Trading Commission (CFTC), where he oversees the Division of Administration. Before joining the CFTC in 2011, Mr. Thompson held senior positions at the U.S. Department of Agriculture, where he was responsible for leading a workforce of more than 400 personnel and a broad range of programs, including budget and financial management. Before entering civilian government service, Mr. Thompson served in the United States Air Force for 32 years, reaching the rank of Colonel, where he served as the Chief Budget Officer for the service branch after previously serving as Chief Financial Officer for a number of U.S. Air Force Bases. He earned a B.S. from Regis University, an M.B.A. from Golden Gate University and an M.S. from Air War College.

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SEC.gov | Ahmed Abonamah Named Director of Office of Credit Ratings

The Securities and Exchange Commission today announced that Ahmed Abonamah has been named Director of the agency’s Office of Credit Ratings, where he has served as Acting Director since October 2020.

“Ahmed already has proven to be a qualified and thoughtful leader of the Office of Credit Ratings,” said SEC Chair Gary Gensler. “Credit rating organizations play central roles in our financial system, and oversight is critical to maintain fair, orderly, and efficient markets. I thank Ahmed for taking on this responsibility and look forward to our continued work together.”

“It is an honor to continue leading the Office of Credit Ratings and working with the talented and dedicated staff in this office and across the agency,” said Mr. Abonamah. “The proper functioning of the rated debt markets is essential to the Commission’s three-part mission. I look forward to continuing to work with Chair Gensler, the Commissioners, and the staff on the important work of ensuring the integrity of the rating process and protecting users of credit ratings.”

The Office of Credit Ratings is responsible for oversight of nationally recognized statistical rating organizations (NRSROs). The office conducts examinations of NRSROs, develops and administers rules affecting NRSROs, and works to ensure that credit ratings are not unduly influenced by conflicts of interest and that NRSROs provide greater transparency and disclosure to investors.

Mr. Abonamah joined the SEC in 2016. Before joining the Office of Credit Ratings, he served in a variety of positions within the SEC’s Office of Municipal Securities, including as Deputy Director. Immediately prior to joining the SEC, he worked as a Public and Infrastructure Finance Associate at Squire Patton Boggs (US) LLP.

Mr. Abonamah received a B.A. from the University of Dayton and a J.D. from Case Western Reserve University School of Law.

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SEC.gov | Nicole Creola Kelly Named Chief of SEC Whistleblower Office

The Securities and Exchange Commission today announced the appointment of Nicole Creola Kelly as Chief of the SEC’s Office of the Whistleblower.

Ms. Kelly, who goes by Cree, is currently Senior Special Counsel in the Office of the General Counsel and has more than 20 years of experience with the SEC. Among her other roles were Counsel to former SEC Chair Mary Jo White, Counsel to former SEC Commissioner Kara M. Stein, and stints in the Enforcement Division’s Complex Financial Instruments Unit as well as the Whistleblower Office.

“Cree’s wealth of experience at the SEC makes her well-qualified to serve as Chief of the SEC Whistleblower Office. The whistleblower program has been tremendously valuable, and I look forward to working with Cree on its continued success,” said Gurbir S. Grewal, the SEC’s Director of Enforcement. “I also would like to thank Emily Pasquinelli for serving as Acting Chief of the Whistleblower Office. The enforcement program has benefited enormously from Emily’s steady leadership during this past year.”

Ms. Kelly said, “I am grateful for the opportunity to work once again with the talented and dedicated staff of the Office of the Whistleblower. Over the course of my career, I have witnessed firsthand both the critical impact that whistleblowers can have on our investigations and the many sacrifices they make in shining light on misconduct.”

Ms. Kelly has a B.A. from Amherst College and a J.D. from Tulane Law School. 

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SEC.gov | SEC Approves PCAOB Rule to Establish A Framework for Determinations Under the Holding Foreign Companies Accountable Act

The Securities and Exchange Commission today announced that it has approved the Public Company Accounting Oversight Board’s (PCAOB) Rule 6100, Board Determinations Under the Holding Foreign Companies Accountable Act. Rule 6100 will establish a framework for the PCAOB’s determinations under the Holding Foreign Companies Accountable Act (HFCAA) that the PCAOB is unable to inspect or investigate completely registered public accounting firms located in a foreign jurisdiction because of a position taken by an authority in that jurisdiction. 

“This is an important step to protect U.S. investors,” said SEC Chair Gary Gensler. “I believe it is critical that the Commission and the PCAOB work together to ensure that the auditors of foreign companies accessing U.S. capital markets play by the same rules. The Commission adopted interim final rules to implement its required rulemaking under the HFCAA earlier this year. We remain on track to finalize those rules before the end of the year.”

The Sarbanes-Oxley Act of 2002, as amended, mandates that the PCAOB inspect registered public accounting firms in both the United States and in foreign jurisdictions and investigate potential statutory, rule, and professional standards violations committed by registered public accounting firms and their associated persons. The HFCAA requires that the PCAOB determine whether it is unable to inspect or investigate completely registered public accounting firms located in a foreign jurisdiction because of a position taken by an authority in that jurisdiction. PCAOB Rule 6100 establishes the process for the PCAOB’s determinations under the HFCAA; the factors the PCAOB will evaluate and the documents and information the PCAOB will consider when assessing whether a determination is warranted; the form, public availability, effective date, and duration of such determinations; and the process by which the Board will reaffirm, modify, or vacate any such determinations.

“The PCAOB’s inspection regime has unquestionably led to improved audit quality,” said SEC Acting Chief Accountant Paul Munter. “With this rule, we can continue the process of ensuring that all publicly traded issuers in our capital markets are complying with the same requirements and that investors can draw the same level of confidence from the quality of the audits of all issuers no matter where their registered public accounting firm is located.”

The Commission’s order approving PCAOB Rule 6100 will be published in the Federal Register. PCAOB Rule 6100 is effective immediately.

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SEC.gov | SEC Wins Jury Trial Against Hedge Fund Adviser Who Ran Manipulative Short Scheme

Jurors in Boston federal court today returned a verdict in the Securities Exchange Commission’s favor against a hedge fund adviser and his investment advisory firm. 

Gregory Lemelson and Massachusetts-based Lemelson Capital Management LLC were charged with fraud in September 2018 for reaping more than $1.3 million in illegal profits through a scheme to drive down the price of San Diego-based Ligand Pharmaceuticals Inc.  The SEC’s evidence at trial showed that after establishing a short position in Ligand through his hedge fund, Lemelson made a series of false statements to shake investor confidence in Ligand and lower its stock price, increasing the value of his fund’s position.  The false statements included assertions that Ligand’s investor relations firm had agreed that Ligand’s most profitable drug was on the brink of obsolescence and that Ligand had entered into a sham transaction with an unaudited shell company in order to pad its balance sheet.  The evidence also showed that Lemelson had boasted about bringing down Ligand’s stock price through his “multi-month battle” against the company.

The jury found Lemelson and Lemelson Capital Management liable for fraudulent misrepresentations.  The court will determine remedies at a later date.

“Investment professionals play a crucial role in our markets and when they break the law they undermine investors’ trust,” said Gurbir S. Grewal, Director of the SEC’s Division of Enforcement.  “We’ll continue to use all of the tools in our toolkit to hold wrongdoers accountable, including litigating whenever necessary.  This verdict underscores that commitment as well as our staff’s ability, tenacity, and experience to win those trials.”

The SEC’s litigation was conducted by Marc J. Jones and Alfred A. Day of the Boston Regional Office.  The SEC’s investigation was conducted by Virginia Rosado Desilets, Sonia Torrico, and Jennifer Clark, and supervised by David A. Becker and Carolyn Welshhans.

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