The (Too) Long Arm of the S.E.C.: When a Foreign Employee of a U.S.-Based Multinational Financial Services Client is Threatened with a Subpoena

Abstract

As businesses and financial institutions engage in transactions with increasingly international scope, U.S. regulatory agencies follow closely behind, investigating potential violations of the securities and exchange laws. Of all the investigative powers of the Securities and Exchange Commission, one of the more feared is the ability to issue administrative subpoenas and have them enforced by a Federal court. What is troubling, however, is the SEC’s recent foray into investigating possible misconduct across U.S. borders through subpoenaing foreign employees conducting business overseas. This article argues that in certain circumstances, the SEC does not have the authority to issue or enforce an extraterritorial administrative subpoena. In other situations, while the SEC may clearly exercise its subpoena power, there are certain precautions that may be put in place to help minimize a financial services firm’s risk profile.