• The number of settling defendants declined for fiscal year 2009, the second consecutive year of declined and the lowest annual number of settling defendants since the passage of the Sarbanes-Oxley Act.
• Among companies whose settlements included a monetary payment, the average settlement was $10.7 million, compared to $4.7 million in the previous year.  The median company settlement amount was $1.0 million.  The NERA Report explains that an important reason why the average settlement increased markedly while the median remained constant is that there were three fiscal year 2009 settlements for over $100 million:  the $350 million settlement with Siemans for alleged violations of the FCPA, the $200 million settlement with UBS for allegedly facilitating consumer tax evasion, and the $177 million settlement with Halliburton and its subsidiary KBR for alleged FCPA violations.
• Judge Rakoff’s rejection of the proposed Bank of America settlement (regarding inadequate disclosures for provisions of bonus compensation to Merrill Lynch employees) because the settlement fined the company (and thus the shareholders) rather than the culpable individuals, may result in the SEC pursuing claims against individuals in other cases brought against publicly-traded companies.
• There were fewer insider trading settlements in fiscal year 2009 that in any full year since the passage of the Sarbanes-Oxley Act.

The NERA Report points out that this year has been a year of transition and turnover at the SEC. Therefore, the trends in the coming years may be vastly different.  With a new Chairman and Director of Enforcement at the helm, we could see a significant increase in SEC enforcement activity in the near future.