In a recent SEC complaint filed on October 6, 2011 (two weeks after the Kelly decision) the agency charged corporate executives with scheming to arrange fictitious transactions to recognize revenue with both direct violations of Section 10(b) and Rule 10b-5, and aiding and abetting….The Kelly analysis would seem to dictate that the two defendants be charged only with aiding and abetting rather than direct violations. However, just as in Kelly the SEC charged Sells and Murawski with both direct violations and aiding and abetting. It would seem that the SEC does not accept the Kelly decision and intends to keep the issue alive until multiple courts of appeals have a crack at the issue.
‘Enforcement 40’ for 2020
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