By Dennis Gonzalez Jr., Esq. — Former Miami-Dade Prosecutor • October 23, 2026

A letter from the U.S. Securities and Exchange Commission (SEC) lands on your desk. A subpoena or a Wells notice? Either way, the next few days matter.

Subpoena vs. Wells notice

An SEC subpoena is a demand for documents or testimony. The SEC's Enforcement Manual explains that the Commission designates staff members to act as its officers in an investigation by issuing a "Formal Order of Investigation," which "empowers them to administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence, and require the production of documents and other materials." The Manual also says a Formal Order "does not represent a determination that any violations have occurred." An open investigation is not a charge.

A Wells notice is different, and more serious. Per the Manual, it "informs the person the staff has made a preliminary determination to recommend that the Commission file an action or institute a proceeding against them." In plain terms: the staff has preliminarily decided to recommend an enforcement action against you. The Commission itself has not yet decided.

The first 48 hours: a checklist

  1. Do not ignore it. The SEC's Form 1662, which the staff provides with its subpoenas, says: "If you fail to comply with the subpoena, the Commission may seek a court order requiring you to do so."
  2. Do not discuss it without a lawyer. Not with the staff, partners, or employees until you have counsel. Form 1662 states: "You have the right to be accompanied, represented and advised by counsel of your choice."
  3. Preserve everything. Keep every document, file, and message, wherever it is stored. The Manual says SEC preservation notices should cover messages "on any and all messaging platforms and messaging applications, including those communications sent or received on personal devices, such as smartphones or tablets." Turn off any auto-delete settings.
  4. Do not destroy, alter, move, or hide anything. Form 1662 quotes the federal obstruction statute, 18 U.S.C. § 1519, which reaches "[w]hoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object" with the intent to obstruct an investigation.
  5. Collect every deadline. Write down each date in the subpoena or notice and give the papers to your lawyer the same day.
  6. Check your insurance. If you or your company has directors-and-officers (D&O) or similar coverage, read the notice terms and have counsel notify the carrier.

The Wells submission: a choice, not a requirement

The SEC's rule, 17 C.F.R. § 202.5(c), says persons involved in an investigation "may, on their own initiative, submit a written statement to the Commission setting forth their interests and position in regard to the subject matter of the investigation." In response to a Wells notice, that statement is called a Wells submission.

The Manual says the Wells notice should set reasonable limits on a submission, including, "in the absence of timing constraints, a four-week time period" to make one, and that written submissions "typically" should be limited to 40 pages, not counting exhibits. Your actual deadline is the one in your notice.

Whether to make a submission is a real decision, because of this risk: the Wells notice is supposed to tell you "that any Wells submission may be used by the Commission in any action or proceeding that it brings and may be discoverable by third parties in accordance with applicable law." Form 1662 adds that the staff "routinely seeks to introduce submissions made pursuant to Rule 5(c) as evidence in Commission enforcement proceedings, when the staff deems appropriate." The Manual also says "[o]ffers of settlement may not be combined with, or included in, Wells submissions." A submission can persuade, or it can hand the other side your own words.

The parallel criminal risk

The SEC brings civil cases. But the Manual states: "Parallel civil and criminal proceedings are not uncommon." Form 1662 says the Commission "often makes its files available to other governmental agencies, particularly United States Attorneys and state prosecutors." And the SEC's own rule, 17 C.F.R. § 202.5(f), says that settling with the SEC does not resolve criminal charges, because "neither the Commission nor its staff has the authority or responsibility for instituting, conducting, settling, or otherwise disposing of criminal proceedings."

That is where the Fifth Amendment comes in. Form 1662 warns: "Information you give may be used against you in any federal, state, local or foreign administrative, civil or criminal proceeding brought by the Commission or any other agency." It also says you "may refuse, in accordance with the rights guaranteed to you by the Fifth Amendment to the Constitution of the United States, to give any information that may tend to incriminate you." But the choice has costs. The Manual notes the privilege "does not protect a collective entity, such as a corporation," and that during litigation the SEC can argue for "an adverse inference" against a defendant who refused to testify based on the privilege. When to speak is a decision to make with a lawyer.

Why a former prosecutor's view matters

Dennis Gonzalez Jr. is a former Miami-Dade prosecutor with litigation experience. He has defended people in tax fraud, bank fraud, wire fraud, drug-trafficking, and money-laundering cases. A prosecutor's training asks the questions that matter on the criminal side: what could be referred, what could be charged, and what your own words could prove.

Related pages: Securities Fraud · Insider Trading · White Collar Crimes · Self-Surrender

Got a subpoena or a Wells notice?

Call before you respond. (305) 209-0384. We answer 24 hours a day. Hablamos español.

Official sources (read and saved 10/23/2026):

  • 17 C.F.R. § 202.5 (eCFR, current as of 10/22/2026): https://www.ecfr.gov/current/title-17/chapter-II/part-202/section-202.5
  • SEC Division of Enforcement, Enforcement Manual (Feb. 24, 2026), §§ 2.2.3, 2.3, 3.2.2, 4.1.3, 5.2.1: https://www.sec.gov/files/enforcementmanual.pdf
  • SEC Form 1662, Supplemental Information for Persons Requested to Supply Information Voluntarily or Directed to Supply Information Pursuant to a Commission Subpoena (SEC 1662 (09-25)): https://www.sec.gov/files/sec1662.pdf

This article is general information, not legal advice, and reading it does not create an attorney-client relationship. Dennis Gonzalez Jr. is licensed in Florida and Texas.