The SEC Updates Enforcement Manual for the Submission of White Papers and How They Can be Used Against Defendants

On October 31, 2016, the Securities and Exchange Commission (SEC) updated its Enforcement Manual1 guiding SEC enforcement staff on the use of the submission of white papers and other advocacy-type documents submitted to the SEC prior to a Wells notice. The new guidance on the submission of White Papers raises the risks for anybody who makes such a submission. Under the new Section 3.2.3.2 of the Enforcement Manual, the SEC will accept "white papers, PowerPoint decks, legal memos, or letter briefs (collectively White Papers)" that are prepared on a voluntary basis by persons who are under investigation. The SEC was careful to warn that any information provided in a White Paper may be used by the SEC for the following purposes:

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