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Responding to an SEC Subpoena During a Securities Fraud Investigation: Ten Do’s and Don’ts

By Spodek Law Group | June 23, 2023
(Last Updated On: July 28, 2023)

Last Updated on: 28th July 2023, 07:32 pm

Introduction: Getting subpoenaed by the SEC? Let’s chat!

Hey there, are the big shots from the Securities and Exchange Commission (SEC) knocking on your company’s door with a subpoena for your testimony or documents? If your answer is ‘yes’, then it’s time for us to have a friendly chat about this. You see, it’s crucial to understand how the SEC operates their securities fraud investigations, so we can plan a strategy that has your back covered. Just remember, one small slip-up can land you in hot water later. So, as your attorney, I’m here to give you a nifty list of ten things to bear in mind to steer away from civil or criminal liability.

1) Double down and hire a lawyer with the right expertise

I know it sounds insane, but you’d be surprised at how many people let their all-purpose business attorney deal with the SEC subpoena response, or don’t even use an attorney at all! Avoid that rookie mistake, because we’re dealing with serious stuff here. Every SEC fraud inquiry could potentially be referred to the U.S Department of Justice (DOJ) (DOJ) for a criminal investigation. No kidding, many SEC fraud investigations are conducted parallel to ongoing DOJ criminal investigations. So, ponder all your moves in light of possible criminal implications. Choose the right attorney who’s adept at both SEC and DOJ fraud investigations. Trust me, an attorney with only SEC litigation experience just won’t cut it.

2) Get your hands on the SEC Formal Order of Investigation

Once the SEC subpoena lands on your desk, you’re entitled to request a copy of the SEC’s Formal Order of Investigation (source). This order gives the SEC’s attorneys the power to issue subpoenas and sworn testimony. It’ll shed light on who’s under the SEC’s microscope and the particular conduct they’re scrutinizing. Though it won’t have all the gory details, the Order of Investigation and your inside thoughts provided to your attorney can give both of you a clearer idea of where this investigation is heading.

3) Speak up and ask for more time

SEC subpoenas can be demanding and time-consuming. They might press you for a heap of documents in a bare minimum time. You don’t have to play by their rules here. If you need more time to produce the documents, just say it! Trust me, the SEC can’t take your arm-twisting, as they’ll need to march into a federal district court to compel you to comply. The good news is that you can usually get reasonable extensions to meet the SEC’s document demands. So take a breather and plan your document submission diligently to demonstrate your commitment to comply.


4) Have a chat about the format for producing your documents

SEC subpoenas usually come with detailed tech specs for producing your documents. Though this sounds great in theory, it can get burdensome for smaller business ventures. Now here’s the hack – if the SEC wants your documents bad enough, they’ll bend their rules to get it. So discuss how you’re going to deal with these demands with your attorney, and decide the best approach together.

5) Think twice before signing a Tolling Agreement

A tolling agreement is a fancy term for the SEC to temporarily pause, or “toll”, the clock on statutes of limitations. This means, if you sign a tolling agreement, you’re giving the SEC more time to potentially file a lawsuit against you. You might be asking, why would anyone sign such an agreement? Well, the SEC can play hardball and threaten to sue you or your company right away if you refuse to sign a tolling agreement. If you’d rather avoid a public SEC fraud filing, it may make sense to sign, but always think it over and discuss with your attorney first.

6) Carefully decide on allowing your attorney to accept service

Once you’re served an initial SEC subpoena for documents and/or testimony, the SEC will ask your attorney if they would take future service on your behalf via email. This can work in your favour as it’s more efficient for the SEC, and it helps you avoid the embarrassment of being publicly served. But always tread lightly. If you’re a non-citizen residing in a foreign territory and you agree to let your stateside lawyer accept future SEC subpoenas, you might end up inadvertently surrendering any potential jurisdictional defenses. Always examine each side of the coin before making any decisions.

7) Get ready to flex your Fifth Amendment privilege

The SEC is likely to request your sworn testimony at some point. In such cases, be prepared to invoke your Fifth Amendment Privilege Against Self-Incrimination, especially if you believe there’s a chance of criminal exposure. It’s completely valid to invoke this right as it can protect you from being incriminated, even though SEC investigations are civil and/or administrative affairs. Just remember, even though your invocation can’t be used against you in a criminal case, it can harm you in a civil or administrative case. Always speak with your attorney before putting all your cards on the table.

8) Plan a full prep session before your SEC testimony

The SEC ain’t no pushover! They have an extensive team of top-notch, well-trained attorneys who do their homework before sitting down with you, so you better plan a session with your attorney to prepare for the big meet. Don’t be misled into thinking these SEC lawyers are clock-punching government types. No way! They’re incredibly ambitious, driven, and sharp. Before answering the first question, make sure your attorney has coached you to respond in ways that won’t compromise your legal position or integrity.

9) Make sure you order a transcript of your testimony

Once your testimony at the SEC has concluded, get a transcript of your testimony immediately to check for accuracy and to correct any errors. This simple move could help your legal team stay aligned and develop a coherent defense strategy.

10) Take the SEC Subpoena Seriously

Finally, and most importantly, always treat an SEC subpoena seriously. While strategizing your response, ensure you consult your attorney and make a good faith effort to comply, unless you have a valid privilege claim. Add to this, while producing documents, maintain a well-structured and safe methodology to protect your rights under attorney-client, doctor-patient, or marital privileges.


In conclusion, SEC subpoenas can seem daunting, filled with potential pitfalls. Which is why it’s so important to devise a detailed plan with a seasoned attorney who knows their way around both white collar crime and dealing with the SEC. Remember, I’m here to help guide you through this all, so let’s face it together!

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