Golf fans were captivated by the US Open played at Chambers Bay, a public course overlooking Puget Sound in Washington state, which concluded on Sunday. The Wall Street Journal’s sports writer, Jason Gay, observed that the course “looked more like a dinosaur excavation/future water-slide theme park than a traditional manicured 18-hole course.” Many professionals, among them Billy Horschel, Sergio Garcia and Ian Poulter, complained loudly about the course, especially the greens. Henrik Stenson said that it was like putting on broccoli, before being corrected by Rory McIlroy, who suggested that the color and texture of the greens were more like cauliflower. Even eventual winner Jordan Spieth called the 18th hole the “dumbest hole I’ve ever played in my life,” just days before he won on a missed putt by runner-up Dustin Johnson on that very same hole. So, even though viewers were treated to something totally different, exactly as intended by the US Golf Association, it is probably a safe bet that the USGA will not be returning to Chambers Bay, or courses like it, any time soon.
Just as the world’s best golfers were teeing up at, and complaining about, the US Open, SEC Commissioner Daniel Gallagher published a statement explaining his dissent in two recent SEC enforcement actions in which Chief Compliance Officers (CCOs) were charged with violations of the Investment Advisers Act. In May, Commissioner Gallagher announced his resignation and his plan to remain on the five-member Commission until a successor is appointed and confirmed. Mr. Gallagher has been an outspoken critic of many of the rules required by the Dodd-Frank Act. In his June 18 statement, he said: “I have long called on the Commission to tread carefully when bringing enforcement actions against compliance personnel. These recent actions fly in the face of my admonition.” Despite Gallagher’s lame duck status as Commissioner, he nevertheless felt “compelled to explain [his] rationale for dissenting.”
Gallagher admonished the Commission to take a close look at Rule 206(4)-7 under the Investment Advisers Act, the rule requiring registered advisers to have compliance policies and procedures and a CCO. He called for additional guidance “to clarify the roles and responsibilities of compliance personnel under the rule so that these individuals are not improperly held accountable for the misconduct of others.” Gallagher stated that the two settlements “illustrate a Commission trend toward strict liability for CCOs under Rule 206(4)-7.” He said that SEC enforcement actions send the troubling message that “CCOs should opt for less comprehensive policies and procedures with fewer specified compliance duties and responsibilities to avoid liability when the government plays Monday morning quarterback.”
Interestingly, earlier this month, Senator Elizabeth Warren sent a sharply-worded 13-page letter to SEC Chair Mary Jo White criticizing her for failing to strengthen the SEC’s enforcement function. “You have now been the SEC Chair for over two years, and to date, your leadership of the Commission has been extremely disappointing,” wrote Warren. Senator Warren noted that Chair White said, at her confirmation hearing, that the enforcement function of the SEC must be “bold and unrelenting.”
Not surprisingly, many financial industry professionals and observers have criticized Senator Warren for her criticisms of Chair White! Is the finger-pointing, particularly directed at persons who are trying to protect users of the financial markets, warranted and helpful? Probably not. Gallagher noted: “One thing is certain: we should not be resolving this uncertainty [as to the contours of liability under Rule 206(4)-7] through enforcement actions.” Gallagher said that “as regulators, we should strive to avoid the perverse incentives that will naturally flow from targeting compliance personnel who are willing to run into the fires that so often occur at regulated entities.”
So it seems as though there are no shortage of complaints and moaning. Mr. Gay, the sports writer, noted: “Complaining, along with yammering incessantly . . . , is one of the qualities that makes humans human. It’s normal and natural. If you do anything for a living, you’re bound to complain about it once in a while.”
Despite the pervasive criticism, 21-year-old Jordan Spieth masterfully sidestepped most of the bashing of Chambers Bay to emerge as a true presence in his sport; he has shown a maturity far beyond his years in dealing with the media and the business of public life. In contrast, a powerful US senator is accusing the head of the SEC of not sufficiently pursuing her agency’s enforcement agenda. That agency’s staff is then, in turn, also criticized by one of its own commissioners about enforcement actions imprudently, in his view, brought against those trying to assure compliance at one of the approximately 11,700 SEC-registered investment advisers.
Commissioner Gallagher has a very valid point. Certain of the Dodd-Frank Rules and the SEC’s enforcement agenda actually may “disincentivize a vigorous compliance function.” Chair White also has a point. She is, presumably, trying her best to bring sensible enforcement to the SEC, which is necessary for investor confidence and market integrity. It is hard not to have some sympathy for White, who is now being criticized for not bringing enough enforcement.
Even Senator Warren may have a point (or, as outlined in her letter, four points) regarding how Ms. White has not sufficiently pursued a strong enforcement policy.
Although all of these critics have valid points, the best approach for those in the financial services industry in general, and investment advisers, in particular, may be: try to avoid the hand-wringing, keep your head still, and sink the putt on the 18th hole.