“It is rare that the Securities and Exchange Commission announces a new approach to pursuing violations. Mary Jo White, the agency’s chairwoman, did just that last week when she pointed to a seldom-used provision of the federal securities laws that the S.E.C. will employ against people who use others to do their bidding.
“In a speech at a white-collar crime conference sponsored by the New York City Bar Association, Ms. White said that “One new approach to charging individuals is to use Section 20(b) of the Exchange Act,” which she said can be “potentially a very powerful tool” for pursuing violations. Before discussing the provision, she kindly told her audience filled with defense lawyers that “before you start reaching for your smartphones to look it up, let me save you the trouble” by describing the provision for them.
“Section 20(b) provides that “It shall be unlawful for any person, directly or indirectly, to do any act or thing which it would be unlawful for such person to do under the provisions of this chapter or any rule or regulation thereunder through or by means of any other person.” Under the criminal law, this is known as the “innocent instrumentality” doctrine, which allows someone to be held responsible for using another person to engage in illegal conduct if that person did not intend to commit a crime.”
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