Law firm Gibson, Dunn & Crutcher has published a memorandum regarding the new SEC Enforcement Manual (previously discussed here). The new manual is an important development and we suspect that the GD&C memo will be the first of many law firm memos to come on this topic.
GD&C observes that this “first-ever” manual “memorializes in one place staff policies that have developed over decades but which were applied principally on the basis of oral tradition or internal, unpublished memoranda.” The firm also notes that the Manual serves two very useful purposes.
First, it informs persons requested to provide information to the SEC staff of the staff’s expectations. Second, it also provides boundaries that, for the first time, publicly define normative behavior for the SEC staff itself and that potential reviewing courts can use to determine whether agency action is appropriate, whether under an “arbitrary and capricious” or other standard of legal review.