The Wells process has been in place at the SEC, both officially and unofficially, for many years. Since the Dodd-Frank Act took effect in 2010, however, the process before Enforcement Division (Enforcement) staff formally issues a Wells notice to the subject of an investigation has taken on greater importance. In many cases, it is in everyone’s best interest to resolve an investigation before a Wells notice is issued and the clock on the 180‑day deadline starts to tick. In addition, the so-called pre-Wells process provides more flexibility to defense counsel, who, for example, are not bound by the limits on Wells submissions during this process. This final article in our three-part series demystifying the Wells process explores the increasingly important pre-Wells process and the key steps of the pre- and post-Wells processes, including ways for a manager to determine whether to offer a Wells submission in response to a Wells notice. The first article
discussed the origins of the Wells process and its key elements, as well as the impact of Dodd-Frank, and the second article
examined the views of members of Enforcement on the Wells process. See “Is This an Inspection or an Investigation? The Blurring Line Between Examinations of and Enforcement Actions Against Private Fund Managers
” (Mar. 29, 2012).