As Dave shared in mid-October, Chairman Atkins recently gave a speech that outlined his vision for improvements he’d like to see in the Wells process.

As many of you know, the Wells process is the mechanism through which the enforcement staff notifies potential respondents or defendants of any charges—and the basis for such charges—that the staff intends to recommend to the Commission. The potential respondents or defendants are then provided an opportunity to make written or video submissions to the Commission setting forth their interests and position on the subject matter of the investigation.

These “Wells submissions” provide in most cases a last opportunity for potential respondents or defendants to persuade the staff that an enforcement action, either in whole or in part as the staff intends to recommend it, is not warranted. They also provide the Commission with a different, and potentially convincing, view of the facts and law concerning the matter.

But the Wells process presents a number of challenges for defense attorneys and their clients. From this Fortune article:

As Securities and Exchange Commission defense counsel, we can attest first-hand to the dread our clients experience when we inform them that we have received a “Wells Notice” from the Division of Enforcement at the SEC. The Wells Notice, which serves as the civil equivalent of a criminal grand jury target letter, informs the recipients that the Division is prepared to recommend to the Commissioners that they be sued. The putative defendants then learn that they have only two weeks to submit a written defense or “Wells Submission,” that may or may not be read by commissioners, and that the price of a submission is that the defendant is forced to agree that the submission itself may be used against them in any subsequent proceeding. Hardly a level playing field — until now.

This Dechert memo summarizes the key points of his speech:

Timing of Wells Submissions: Moving forward, Division staff will provide potential respondents and defendants with “at least four weeks” to complete Wells submissions. On the flip side, there should not be delays in making submissions or unreasonable requests of Division staff, as the foundation of the Wells process is good faith by both sides.

Access to Evidence: As mentioned during the SEC Speaks conference earlier this year, Chairman Atkins reiterated that Division staff must be forthcoming about sharing the investigative file with potential respondents and defendants. This information includes transcripts, documents, and other parts of the investigative record. Chairman Atkins cautioned, though, that Division staff still must adhere to limitations when applicable, such as information that would identify whistleblowers or implicate a parallel criminal investigation.

Meetings with Division Staff: Senior Division leadership will continue to meet with defense counsel prior to making an enforcement recommendation to the Commission. However, Chairman Atkins expressed that Division staff should engage more with defense counsel during earlier phases of the investigation “to discuss the direction of an investigation,” including when there is a belief that “the staff is operating under a mistaken view of the facts.”

White Papers: Chairman Atkins noted the value of white paper submissions in addressing concerns over certain legal or factual issues. These submissions are particularly helpful “in cases where a potential respondent or defendant feels obligated to make a public disclosure of a Wells notice or to save on the costs of making a Wells submission.” He also confirmed that white papers, like Wells submissions, will be provided to the Commission for review and consideration.

Commissioner Review: Commissioners currently receive every Wells submission, both in settled cases and in contested ones. Chairman Atkins stressed that the Commissioners should read the submissions, even if the recommendation has changed from what was included in the Wells notice.

Coupled with the staff now open to considering proposed settlements of enforcement proceedings and waiver requests simultaneously, this is welcome news for those navigating enforcement proceedings.

– Meredith Ervine