The SEC commissioners have been out on the road a lot recently, telling the world about the bright lights it is shining into the dark nooks and crannies of the financial markets.
First out of the gate in the SEC's rhetorical offensive was Commissioner Luis Aguilar who spoke at the 20th Annual Securities Litigation and Regulatory Enforcement Seminar. In his speech, Aguilar reviewed the steps the SEC had taken in the last few years to become a more effective regulator and fulfill its mission to protect investors, and how it has entered what he termed one of "the most active rulemaking periods in SEC history." He focused on recent steps taken to strengthen the SEC's enforcement program - what factors should drive the imposition of penalties, the importance of holding self-regulatory organizations accountable, requiring admissions of fault in settlements, and the better use of data and risk-based analytics to combat fraud.
Chair Mary Jo White was up to bat twice. At the Practicing Law Institute's 45th Annual Securities Regulation Institute, she took the opportunity to do a drive-by tour of some of the less flashy and less sensational activities the SEC undertakes "to protect investors, promote capital formation, and maintain fair, orderly and efficient markets — the SEC's mission." These run the gamut from enforcement actions against comparatively small broker-dealers through building the international relationships that make regulatory coordination and cooperation possible, to promoting investor education. She asked attendees to consider the extraordinary dedication of the unsung SEC staff, not just in bringing cases against large firms or high-profile CEOs but in "Giving a group of nuns and the people who rely on them a merrier holiday, producing a sign-language video-cast that will help keep a deaf person from losing his savings to financial fraud, ensuring municipal underwriters are following best practices, and improving companies' disclosures every year."
She followed that overview with a speech on November 14 extolling the importance of trials to the law and public accountability. Giving the 5th Annual Judge Thomas A. Flannery Lecture, the SEC Chair lamented the decline of trials, noting that they have become a rare species. The SEC, she said, hopes to reverse that trend, positing that one result of the changes made to the SEC's no admit/no deny settlement protocol will be an increase in trial litigation.
Four days later, Commissioner Daniel Gallagher offered some informal remarks on leading current issues in securities regulation and enforcement at a Columbia Law School Conference. Gallagher drew attention to the issue of "shareholder penalties" — the situation that arises where shareholders foot the bill when a company pays hefty fines. In doing so, he echoed Andrew Ross Sorkin's point that shareholders are victimized twice — first by corporate malfeasance and then by having to pay the penalty out of their earnings.
Andrew Ceresney, Co-Director of the Division of Enforcement, spoke at the International Conference on the Foreign Corrupt Practices Act ("FCPA") on November 19. He pointed out that over the last twelve months the SEC recovered over $240 million in disgorgement and penalties from FCPA cases, and over the past three fiscal years, has filed over 40 FCPA enforcement actions. He urged corporate counsel to nurture a culture of compliance, and noted that the SEC must continue to find ways to educate and inform the industry about the limits of permissible conduct. He assured attendees the SEC would remain the vigilant cop on the beat when it comes to the FCPA.
Next up, was Commissioner Kara M. Stein, who joined the SEC only three months earlier, who addressed the ABA Business Law Section's Federal Regulation of Securities Committee Fall Meeting. She offered an overview of the SEC's challenges from her newcomer's perspective, noting the difficulty of implementing an imperfect Volker rule, wondering if private offerings would be advertised during the Super Bowl in the wake of the new exemption on mass marketing, and remarking on the challenges posed by regulating crowd funding and the 2010 Flash Crash.
On the 50th anniversary of President Kennedy's assassination and the 100th day of Commissioner Michael S. Piwowar's tenure, Piwowar found himself in Los Angeles addressing a county bar association securities regulation seminar. Unlike most SEC Commissioners, Piwowar is an economist, not a lawyer. And from his perspective, federal securities law violations fall into three basic categories — lying, cheating, and stealing.
How much weight should we give this flurry of speechifying by the SEC? Writing on the CLS Blue Sky Blog, John Coffee Jr. wonders if the SEC can walk the walk as well as it talks the talk. Riffing on United States District Judge Jed Rakoff's by now celebrated critique of prosecutorial diffidence in prosecuting Wall Street malefactors, Coffee (who was singled out in Commissioner Gallagher's speech of November 18) said "the Judge's words will resonate with many, particularly those concerned that we have quietly accepted a double standard for criminal justice under which banks (and their executives) have been treated as 'too big to jail.'" But he focused on the SEC's paltry funding deficit compared to the Justice Department, and on the institutional imperatives which discourage risk-taking and encourage the harvesting of small fish.
Perceptions matter, in the regulatory world as elsewhere. The SEC is trying to pump up its street cred. Whether the world is buying it is an open question.