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Anticipating the SEC's Cybersecurity Focus After SolarWinds

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Haima Marlier, Miriam Wugmeister, Nicole Serfoss and Dan Baskerville wrote an article entitled "Anticipating the SEC's...

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Haima Marlier, Miriam Wugmeister, Nicole Serfoss and Dan Baskerville wrote an article entitled "Anticipating the SEC's Cybersecurity Focus After SolarWinds" for Law360 that discusses the SEC's evolving approach to cybersecurity enforcement following its dismissal of the SolarWinds case. The authors analyze how the SEC's strategy is likely to shift toward a more restrained, disclosure-focused posture, emphasizing material misstatements in SEC filings and the importance of robust disclosure controls and procedures. The article reviews key enforcement actions, regulatory developments, and the implications of the SolarWinds litigation, highlighting ongoing obligations for public companies under amended disclosure rules. It concludes with practical recommendations for companies to mitigate enforcement risk by enhancing incident response, disclosure practices, and board oversight of cyber risks.Read the <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltaa1675b139a49209/6983dd795a9f222038254fca/260204-anticipating-the-sec-cybersecurity.pdf" target="_blank">full article</a>.

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Haima Marlier is a partner in Morrison Foerster’s Investigations + White Collar Defense Group and co-chairs both its Fintech and Securities Enforcement practices. Drawing on her experience as a former Securities and Exchange Commission (SEC) senior trial counsel, Haima represents public and private companies, financial services providers, and executives, directors, and other individuals in SEC, Commodity Futures Trading Commission (CFTC), Financial Industry Regulatory Authority (FINRA), state securities regulator, and internal investigations, as well as in related litigation. She has more than 20 years of experience litigating in federal, state, and administrative courts, leading complex negotiations, and representing her clients in mediation. She also counsels clients regarding securities enforcement developments, trends, and risk mitigation.Before joining the firm, Haima spent nearly a decade in the SEC’s Division of Enforcement. While at the SEC, Haima served as lead counsel on a number of prominent enforcement litigations and investigations involving public companies, registered investment advisers, broker-dealers, banks, and individuals in matters arising under the federal securities laws. She has also worked closely with foreign securities regulators, numerous U.S. attorneys’ offices, and FINRA.Haima is a member of Law360’s Securities Editorial Board, serves on the advisory board of Securities Docket, and is on the Board of Trustees of the SEC Historical Society. She mentors Penn State students of color who aspire to become lawyers and is a member of the board of directors of, and a volunteer running coach for, Girls on the Run New Jersey, a nonprofit dedicated to inspiring girls to recognize their inner physical and emotional strengths. She maintains an active pro bono practice.Haima has been recognized by Chambers USA for Securities Regulation: Enforcement and Crypto-Asset Disputes; Crain’s New York Business’s Notable Women in Law and Notable Diverse Leaders in Law; The Legal 500 US as a recommended lawyer in Securities Litigation: Defense, Investigations and White Collar Criminal Defense, and Fintech; Securities Docket’s Enforcement Elite; and the New York Law Journal for her efforts in the diversity and inclusion space.Haima received her J.D. from Boston College Law School and her B.A. from The Pennsylvania State University.<h4>Representative Experience</h4><h5>Cybersecurity</h5><ul><li>Successfully resolved an SEC investigation into a global technology solutions company’s cybersecurity risk disclosures and disclosure controls, policies, and procedures, with an acknowledgment by the SEC of the client’s significant remediation and cooperation.</li><li>Representing a global tech service management company in an SEC inquiry into its cybersecurity incidents and disclosures.</li><li>Represented numerous public companies and other clients in the SEC’s SolarWinds cybersecurity enforcement sweep.</li><li>Advising numerous public companies and SEC-registered firms on the efficacy of their cybersecurity disclosure controls and procedures and the materiality of cybersecurity incidents.</li><li>Represented a major technology company in an internal investigation into its cybersecurity statements and controls, policies, and procedures.</li></ul><h5>Fintech & Crypto</h5><ul><li>Represented a nonprofit foundation supporting a major blockchain, as well as two of its senior individuals, in an SEC investigation, with a complete termination letter issued by the SEC.</li><li>Successfully resolved an SEC crypto investigation into anti-money laundering and other compliance and monitoring programs on behalf a former senior bank executive.</li><li>Representing a leading cryptocurrency exchange platform in responding to SEC, CFTC, and state attorney general subpoenas and other requests for information.</li><li>Obtained a successful federal court settlement for a venture capital fund in a securities class action concerning an unregistered digital token offering.</li><li>Advising numerous Fintech companies, from startups to mature organizations, on securities enforcement compliance best practices and enforcement risk mitigation.</li><li>Represented a private investor in an SEC investigation related to a reverse merger involving a cryptocurrency company with no action taken by the SEC.</li></ul><h5>Artificial Intelligence</h5><ul><li>Representing a major tech company in an SEC investigation focused on AI-related disclosures and policies.</li></ul><h5>Accounting & Financial Reporting</h5><ul><li>Represented the former Chief Operations Officer of a major NASDAQ-listed food distributor in SEC and special committee investigations, with a complete termination letter issued by the SEC, as well as in related Delaware Court of Chancery litigation, which was favorably resolved.</li><li>Successfully resolved SEC and special committee investigations into related-party transaction disclosures and accounting issues, as well as related shareholder litigation, on behalf of a former CEO of a NASDAQ-listed company.</li><li>Represented an audit committee of a public company in an internal investigation resulting from a whistleblower complaint alleging accounting and disclosure issues.</li><li>Represented a leading public company in an internal investigation resulting from a whistleblower complaint alleging accounting and disclosure issues.</li></ul><h5>Other Securities Enforcement Matters</h5><ul><li>Represented the former CEO of a major company listed on the New York Stock Exchange in an SEC insider trading investigation with no action taken by the SEC.</li><li>Represented an individual in an SEC investigation concerning the “pay-to-play” rule.</li><li>Represented a private investment fund in a COVID-19 related SEC insider trading investigation with no action taken by the SEC.</li><li>Represented a broker-dealer in a for-cause FINRA examination into anti-money laundering and other issues.</li><li>Represented a leading international company in government investigation into pharmaceutical drug pricing.</li><li>Represented a biotech company in a Massachusetts Securities Division investigation concerning securities registration exemptions and representations to investors regarding securities registration with no action taken by the state regulator.</li><li>Obtained a successful resolution for a pre-IPO biotech company in a wrongful termination lawsuit brought by a co-founder and former CEO terminated by the board of directors.</li><li>Represented the SEC in all stages of federal and administrative proceedings, including at trial and on appeal, in matters involving violations of the federal securities laws.</li></ul>

Haimavathi Marlier

Partner

Few lawyers in the world have Miriam’s breadth and understanding of privacy and data security laws, obligations, and practices. As co-chair of Morrison Foerster’s preeminent global Data, Cyber + Privacy Group, leading 60+ lawyers, Miriam is regularly called upon by some of the world’s largest and most complex multinational organizations to confront their most difficult U.S. and international privacy and cybersecurity challenges. Miriam is a trusted advisor who provides legal and strategic advice on all areas of international privacy and data protection issues. She works with global companies on the planning and execution of complex global compliance efforts and helps them find practical solutions to use and manage personal information in every country in the world. She also defends regulatory matters relating to privacy and cybersecurity in the United States and internationally and advises on the Department of Justice Bulk Data Rules. Her counsel is particularly prized for cybersecurity preparedness and breach response. Miriam and her team have navigated some of the largest and most consequential cybersecurity incidents in history, including assisting Mandiant when it discovered and warned the world about the SolarWinds compromise. Having helped hundreds of clients respond to breaches, Miriam is frequently called upon to advise and educate boards of directors regarding cybersecurity and the key role that boards play in understanding and overseeing the potential risks. Miriam works with companies to develop comprehensive customized incident response plans, train staff, conduct extensive tabletop exercises, and address key issues with executive management. While she regularly advises clients on responses to ransomware attacks and other cyber extortion incidents, she works on all aspects that arise in the context of large security incidents, including communication strategies, notifications to customers, consumers, and regulators; public disclosures; interactions with law enforcement globally; litigation; and investigations by regulators around the world.Miriam serves as a board member of the ADP AI & Data Ethics Committee and is a leader in MoFo’s AI Group, a cross-practice team that provides sophisticated, full-service representation to a wide range of clients with companies that both develop and use cutting-edge, rapidly changing technology in the AI space. Miriam uses her extensive industry experience and collaborative global approach to help her clients integrate the newest trends and developments in AI with their business needs.Recognized as a market leader by all major directories, Miriam has been ranked in the top tier of privacy and data security lawyers worldwide by Chambers USA and Chambers Global for well over a decade. She was an inaugural inductee into The Legal 500 Hall of Fame, which is comprised of outstanding U.S. lawyers who have been recommended as The Legal 500’s Leading Lawyers for the last six consecutive years. The Cybersecurity Docket has recognized Miriam as one of its Incident Response 50, a list of the top data breach response lawyers globally. She has been named one of Financial Times’ Top 10 Innovative Lawyers in North America and a National Law Journal Cybersecurity and Data Privacy Trailblazer for her breakthrough work in this space. Miriam was also previously designated as an Ethisphere Attorney Who Matters and a BTI Client Service All-Star. A frequent commentator on cybersecurity, she has been interviewed by media outlets including CNBC, The New York Times, and The Wall Street Journal, among many others.

Miriam Wugmeister

Global Chair of Data, Cyber + Privacy

Nicole Serfoss is a partner in Morrison Foerster’s Securities Litigation and Investigations + White Collar Defense groups and co-chairs its Securities Enforcement practice.Nicole has two decades of experience representing clients in SEC enforcement matters, corporate internal investigations, securities class actions, and shareholder derivative suits. She represents companies, officers, and directors in a wide range of matters involving alleged accounting and disclosure issues. She also frequently assists audit and special committees with investigations following allegations of corporate misconduct.Nicole was named to Securities Docket’s “Enforcement Elite” list in 2025 and has also been recognized as a “Colorado Rising Star” by Super Lawyers. She has tried over a dozen cases as a special prosecutor in the Denver City Attorney’s Municipal Court Trial Advocacy Program. She is also committed to pro bono service and has received the Wiley W. Manuel award for pro bono legal services.Nicole received her B.A. in history from UCLA, magna cum laude, and graduated Order of the Coif from the University of Colorado School of Law. After law school, she clerked for the Honorable Jose D.L. Marquez of the Colorado Court of Appeals.Nicole is an active member of the Colorado legal community, including membership in the Women’s White Collar Defense Association and the Colorado Women’s Bar Association.<h4>Representative Experience</h4><ul><li>Represented the audit committee of a large, multinational software corporation in an internal investigation into allegations raised by a former employee regarding certain non-GAAP accounting practices.</li><li>Represented Farmland Partners and its CEO and CFO in a federal securities fraud class action in the District of Colorado. Won summary judgment dismissing all claims against our clients. Won motion to dismiss a related derivative action in Maryland state court with prejudice.</li><li>Represented more than two dozen audit and special committees in internal investigations resulting from whistleblower complaints alleging accounting and disclosure issues.</li><li>Represented a Fortune 500 company in an SEC investigation following the company’s announcement of the then-largest data breach in history. Negotiated a favorable consent order with the SEC.</li><li>Represented a Fortune 500 company in an SEC investigation after a high-profile data security incident. Following document production and witness testimony, the matter was closed without any enforcement action.</li><li>Represented Boulder Brands in three lawsuits: a shareholder securities class action in which the district court granted the defendants’ motion to dismiss with prejudice, a related derivative action that was voluntarily dismissed, and a separate shareholder merger challenge settled based upon disclosure updates.</li><li>Defended Crocs and certain of its officers and directors in a securities class action and derivative litigation matter. Won dismissal of federal securities class action against Crocs and individual defendants with prejudice.</li><li>Represented a former CFO in a settlement of securities litigation, derivative litigation, and a related SEC investigation.</li><li>Represented a Fortune 500 company in a Regulation FD inquiry by the SEC. The matter was closed without enforcement action.</li><li>Represented a company operating a national person-to-person lending platform in investigations conducted by the SEC and dozens of states. Successfully negotiated a settlement of all actions on favorable terms for company.</li></ul>

Nicole K. Serfoss

Dan Baskerville is an associate in the Investigations + White Collar Defense Group in Morrison Foerster’s New York office.Dan focuses his practice on representing multinational companies and corporate executives in internal and government-facing investigations and white-collar defense matters as well as providing regulatory counseling and advising on related civil litigation.Dan routinely counsels clients on investigations and enforcement actions related to the Bank Secrecy Act (BSA)/Anti-Money Laundering (AML) regulations, consumer protection, cybersecurity and privacy laws, the False Claims Act (FCA), financial reporting and disclosures, the Foreign Corrupt Practices Act (FCPA), sanctions law, and securities law, among other areas. As a result, he has experience with a wide range of enforcement and regulatory agencies, including the U.S. Department of Justice (DOJ), U.S. Securities and Exchange Commission (SEC), U.S. Commodity Futures Trading Commission (CFTC), U.S. Department of Health and Human Services’ Office of Inspector General (HHS-OIG), and state attorneys general.Dan also has an active complex litigation practice, which has included representing clients in bankruptcy proceedings, breach of contract and fiduciary duty cases, class actions, and intellectual property disputes, among other areas.Dan is a graduate of New York University School of Law, where he served as co-chair of the High School Law Institute and was an active member of the Black Allied Law Students Association (BALSA). Dan was a summer associate in the Litigation Department of Morrison Foerster’s New York office.He received his B.A. cum laude in cultural anthropology from Colby College.<h4>Select Representative Engagements</h4><ul><li>Representation of an international consulting firm in negotiating a $650 million five-year deferred prosecution agreement and civil FCA settlement with DOJ and Corporate Integrity Agreement with HHS-OIG arising from past work for opioid manufacturers.</li><li>Representation of a nonprofit foundation supporting a major blockchain, as well as two of its senior employees, in responding to a document request from the SEC’s Crypto Assets and Cyber Unit and in related SEC regulatory and enforcement counseling matters, with a complete termination letter issued by the SEC.</li><li>Representation of a global technology company in the successful resolution of a complex and high-profile SEC investigation into the company’s cybersecurity risk disclosures and disclosure controls and procedures.</li><li>Representation of a financial technology company in connection with a BSA/AML regulatory inquiry by the New York Department of Financial Services.</li><li>Representation of a multinational financial services corporation in responding to a grand jury subpoena related to an AML and sanctions investigation led by DOJ’s Money Laundering and Asset Recovery Section, DOJ’s National Security Division, and a U.S. Attorney’s Office, while also conducting an internal investigation.</li><li>Representation of a privately held corporation in DOJ and CFTC investigations into potential FCPA violations concerning payments to government officials in Latin America, which has included conducting an extensive internal investigation and assisting the company in self-reporting the matter to DOJ.</li><li>Representation of a global company in conducting a sensitive internal investigation into accounting irregularities and potential theft related to inventory control at their operation in Mexico, involving extensive document review and in-person interviews.</li><li>Representation of an American multinational mass media and entertainment conglomerate in responding to a California Attorney General’s Office investigation regarding compliance with the California Consumer Privacy Act.</li><li>Representation of an Official Committee of Unsecured Creditors in the Chapter 11 bankruptcy case In re Wesco Aircraft Holdings (Bankr. S.D. Tex.).</li><li>Served as pool counsel to employees of a major investment bank during a sensitive SEC investigation into compliance with record-keeping rules, offering careful guidance on work-related communications conducted via personal smartphones.</li><li>Representation of an executive in a DOJ FCPA investigation involving allegations of bribery in Latin America.</li><li>Representation of a senior executive in an SEC investigation concerning the “pay-to-play” rule.</li></ul>