I have received a subpoena from the SEC what do I do? 

It is important to understand that when you receive a subpoena from the SEC it is most definitely not the beginning of an investigation, but it is the beginning of your knowledge that there is an investigation.  If you have received a subpoena from the SEC, your first and immediate step is to contact an attorney who can help guide you through the process and get the best resolution possible.  

What is the process? 

First, the majority of the Securities and Exchange Commission must issue what is called a formal order of investigation. This is a formal order within the SEC that gives authority to start issuing subpoeanas, and the like. It is important to note that without that order, the SEC’s enforcement attorneys can request your cooperation, but they cannot require it.

The distinction is very important.  Before there is a formal order SEC staff can still conduct an investigation but it’s done in a more informal way. It is very similar to a federal agent coming by your office and just “asking a few questions”. They may imply it’s informal and no big deal – but it is. Even if you are contacted this way, it is imperative to understand that these conversations are not casual.   Everything you say and do can and will be held against you.   And it can be the information that is used to procure the formal order. 

What is a subpoena duces tecum? 

A subpoena duces tecum compels the production of documents. It is a legal order requiring a person to produce documents or tangible evidence for use at a hearing or trial. The term “duces tecum” comes from the Latin phrase “you shall bring with you.”. It includes correspondence, emails, contracts, financial records, trading logs, and communications on all types of platforms that include WhatsApp, Signal, Telegram etc per the revised 2026 Enforcement Manual. The subpoena will specify a deadline and an address for production. An experienced attorney may be able to secure a delay in this deadline so that there is adequate time to comply.

What is a preservation obligation?

There is a duty to preserve once an investigation has begun. These obligations now extend to encrypted communications on personal devices.  The preservation obligation attaches at the moment of service, and in certain cases before: the 2026 Manual directs enforcement staff to issue preservation letters early in an investigation, which means the duty to preserve may predate a subpoena by weeks.

What is a subpoena ad testificandum? 

A subpoena ad testificandum compels you to appear at a designated time and place to give sworn testimony.

Securing counsel early on is key.  Contact us so we can help.  Complying with SEC subpoenas is complicated and time consuming. Even after complying, the investigation stage is a long process. It is important to have qualified counsel throughout.  Remember all of the aspects of the SEC investigation can and usually does run parallel to a criminal investigation by the DOJ.  

According to the NDGA DOJ news release:

According to Acting U.S. Attorney Moultrie, the charges and other information presented in court: Between approximately October 2017 and January 2020, Milan Patel, Bart Ross, Mark Melnick, Anthony Salandra, and Charles Parrino conspired to trade securities—primarily short-term call options—in large, publicly traded companies based on materially false rumors about those companies that they generated and disseminated. These materially false rumors were intended to increase the price of the securities (both the underlying stock and options).

Call options are essentially a contract that gives the options’ holder the right, but not the obligation, to buy shares of the underlying stock at a set price per share—the option’s strike price—on or before a set future date (the option’s expiration date). Generally, the holder of a call option benefits when the price of the underlying stock increases. Short-term call options are ones that generally expire within a week.

Ross, Salandra, and Parrino, were formerly registered brokers with the Financial Industry Regulatory Authority (FINRA) and were responsible for drafting some of the fraudulent rumors. The conspirators would often refine a proposed rumor by exchanging drafts among themselves using the Trillian instant messaging application.

Melnick was a day trader and T3 Live Senior Trading Strategist who often provided technical evaluations on whether a particular false rumor would be successful. These rumors were carefully crafted to: (a) appear plausible enough to other market participants to move the price of the underlying security; and (b) move the price of the security in a particular direction—namely move the stock or option price up—so that Patel and the other conspirators could profitably trade on the rumors.

Patel was responsible for disseminating the rumor via Trillian to multiple accounts, which would in turn result in the false rumor being distributed over one or more market subscription services, including Trade The News, TradeXchange, and Benzinga, as well as various Twitter accounts.

Before Patel disseminated the rumor, the co-conspirators would acquire a position in the publicly traded company that was the subject of the rumor. The co-conspirators purchased short-term call options often mere seconds before Patel disseminated the rumor. The conspirators often purchased short-term call options because the price of such options is more sensitive than the price of the underlying stock. The conspirators profited from their scheme by selling the options (or other securities) after they increased in price. They would then sell off their positions shortly after the rumor was disseminated and the price of the option or underlying stock had increased.

Most of these defendants ended up with a plea with one count of conspiracy to commit wire and securities fraud.  When you see a case where the original situation with most defendants are charged in an indictment, and it ends with a plea to a one count, criminal information – this is good news. This means that the federal criminal defense lawyer has done their job well and worked out a resolution that limits the sentencing guidelines and ultimate months of incarceration.

In this case, if one has plead to Conspiracy to commit wire and securities fraud, the base offense level would be a 6.  There will be an increase pursuant to the chart on what the intended loss amount is.  There also can be enhancements such as:

• the number of victims
• being a registered broker at the time of the offense
• abuse of position of trust
• sophisticated means
• use of a special skill

Then, there can be levels taken off for acceptance of responsibility and zero point offender.  And finally, if the defendant has any criminal history the final number will be amended pursuant to Criminal History Category.  Once the final number is determined by the judge, the second part of the sentencing hearing will occur – discussing 3553 factors.

Contact an experienced federal criminal defense lawyer like Conaway & Strickler, PC. We have close to 30 years experience in federal criminal and SEC defense.

He is charged with violating antifraud provisions of federal securities law. He may soon face DOJ charges as well. The antifraud provisions of the federal securities laws prohibit the use of fraudulent statements or schemes in connection with the purchase or sale of securities. These provisions apply to all securities transactions, including exempt transactions, and to statements made orally or in writing.

The primary anti-fraud statutory provision is Section 10(b) of the Securities Exchange Act of 1934, which is codified in 15 U.S.C. § 78j. The SEC enforces this provision primarily through Rule 10b-5, which prohibits the use of any “device, scheme, or artifice to defraud”. Rule 10b-5 also imposes liability for any misstatement or omission of a material fact, or one that investors would think was important to their decision to buy or sell a security. A fact is considered material if there is a substantial likelihood that the information would have been viewed by a reasonable investor as having significantly altered the total mix of information available.

The U.S. Securities and Exchange Commission (“SEC”) and Department of Justice (“DOJ”) have been working together more often to combat unlawful tactics. They have thus strengthened their enforcement capabilities, leading to more effective identification and prosecution of insider trading and other securities violations.

If you have questions about whether or not you or your company are facing an investigation, contact us for further information. Our attorneys have represented many clients in SEC litigation and also when subsequent DOJ charges follow.