Securities Industry Commentator by Bill Singer Esq

October 28, 2022


DOJ RELEASES






SEC RELEASES



SEC Charges Canadian Cannabis Company and Former Senior Executive with Accounting Fraud (SEC Release)

SEC Obtains Final Judgment Against Investment Advisers Charged with Defrauding Their Advisory Clients (SEC Release)

SEC Charges Mattel with Financial Misstatements and Former PwC Audit Partner with Improper Professional Conduct (SEC Release)

SEC Obtains Judgments Against Three Defendants in a Microcap Fraud Scheme (SEC Release)

SEC Grants Waiver for Deficient Form TCR and Awards Claimant Over $400,000 Whistleblower Award
Order Determining Whistleblower Award Claims

SEC Awards Two Claimants Over $1 Million and Over $500,000 in Whistleblower Awards
Order Determining Whistleblower Award Claims

SEC Adopts Amendments to Modernize Fund Shareholder Reports and Promote Transparent Fee- and Expense-Related Information in Fund Advertisements (SEC Release) 

Simplicity is a Goal Unto Itself: Statement on Tailored Shareholder Reports for Mutual Funds and Exchange Traded Funds; Fee Information in Investment Company Advertising by SEC Commissioner Caroline A. Crenshaw

Modernizing Mutual Fund and ETF Disclosures for Investors by SEC Commissioner Jaime Lizárraga

One Good Step, More to Go: Statement on Final Tailored Shareholder Reports for Mutual Funds and Exchange-Traded Funds; Fee Information in Investment Company Advertisements by SEC Commissioner Hester M. Peirce (SEC Release)

Statement on Final Rule Regarding Tailored Shareholder Reports for Mutual Funds and Exchange-Traded Funds; Fee Information in Investment Company Advertisements by SEC Commissioner Mark T. Uyeda

SEC Adopts Compensation Recovery Listing Standards and Disclosure Rules (SEC Release)

Statement on Listing Standards for Recovery of Erroneously Awarded Compensation by SEC Commissioner Caroline A. Crenshaw

Statement on Listing Standards for Recovery of Erroneously Awarded Compensation by SEC Commissioner Jaime Lizárraga

Erroneous Clawbacking: Statement at Open Meeting to Consider Listing Standards for Recovery of Erroneously Awarded Compensation by SEC Commissioner Hester M. Peirce

Statement on the Final Rule Related to Listing Standards for Recovery of Erroneously Awarded Compensation by SEC Commissioner Mark T. Uyeda

SEC Proposes New Oversight Requirements for Certain Services Outsourced by Investment Advisers

In Service of the Investor: Statement on Outsourcing by Investment Advisers by SEC Commissioner Caroline A. Crenshaw

Accountability in an Evolving Asset Management Industry by SEC Commissioner Jaime Lizárraga (SEC Release)

Outsourcing Fiduciary Duty to the Commission: Statement on Proposed Outsourcing by Investment Advisers by SEC Commissioner Hester M. Peirce

Statement on Proposed Rule Regarding Outsourcing by Investment Advisers by SEC Commissioner Mark T. Uyeda

Remarks at the Georgetown Law Hotel and Lodging Summit by SEC Commissioner Mark T. Uyeda

"Competition and the Two SECs" Remarks Before the SIFMA Annual Meeting by SEC Chair Gary Gensler

CFTC RELEASES


FINRA Fines and Suspends Rep for Excessive Trading
In the Matter of Nigel Ronald James, Respondent (FINRA AWC)

https://www.brokeandbroker.com/6734/finra-taxonomy-initiative/
FINRA seems to think that Wall Street was awaiting with great anticipation the fabulous news that FINRA had launched a machine-readable rulebook initiative. If FINRA spent money and time on its embedded taxonomy search thing, fine, just plug it in, turn on the switch, and make sure it doesn't blow a fuse. Inexplicably, FINRA felt compelled to publish yet another news release. Ironically, what FINRA sent out wasn't much in the way of news and sure as hell didn't seem that important. These days, it's not enough for regulators to just do their jobs. They need a ticker tape parade in the form of a press release and follow-on podcasts and videos.

https://www.sec.gov/litigation/litreleases/2022/lr25566.htm
The United States District Court for the Eastern District of New York entered a Final Consent Judgment against Mark Alan Lisser permanently enjoining him  permanently enjoins him from violating Section 17(a) of the Securities Act and Section 10(b) of the Securities Exchange Act, and Rule 10b-5 thereunder; and ordering him to pay $890,092.90 disgorgement with prejudgment interest of $71,347.20 -- those sums were deemed satisfied by an Order of Restitution entered against Lisser in a parallel criminal action. As alleged in part in the SEC Release, Lisser:

ran Knightsbridge Capital Partners, which operated at least two boiler rooms, through which Lisser raised approximately $2.1 million from at least 71 retail investors and misappropriated approximately $900,000 of that amount. The complaint alleged that, from approximately October 2018 to March 2019, Lisser, and boiler-room salespeople whom he directed, solicited investors by misrepresenting that the Knightsbridge-managed funds had purchased "pre-IPO" shares in three well-known companies directly from employees of the companies. As the complaint alleges, Knightsbridge did not own any shares at the time it solicited investors, did not buy shares from employees, and never owned enough shares to cover the sales it had made to investors. The complaint further alleges that Lisser and his salespeople falsely claimed to investors that Knightsbridge only charged investors a fee based on the profits after the pre-IPO companies went public, despite significantly marking up sales and charging commissions. 

. . . 

On September 15, 2022, Lisser consented to the entry of a Commission order barring him from association with any broker, dealer, investment adviser, municipal securities dealer, municipal advisor, transfer agent, or nationally recognized statistical rating organization; and from participating in any offering of a penny stock. On May 12, 2021, Lisser pled guilty to securities fraud in the criminal action, and on July 25, 2022, he was sentenced to 24 months in prison and ordered to pay restitution of $1,486,772.02.

https://www.brokeandbroker.com/6733/finra-test-center-access/
A non-registered fingerprint person -- a lowly NRF -- took a 15-minute break during her Series 7 examination. It's what happened during those 15 minutes that got her fined and suspended by FINRA. FINRA's regulatory settlement with the NRF is now posted on FINRA's public database for all to see. If you have a 15-minute break sometime during the day, have some fun and log on to FINRA's website and read the settlement document. See if you can find the words in FINRA's allegations that specify exactly what the NRF did that constituted a violation. Don't guess. Don't infer. Don't assume. Just write down what FINRA published as proof of the NRF's alleged misconduct. I can't find the words in the document. In fact, they're just not there. 

https://www.justice.gov/usao-wdwa/pr/former-credit-union-employee-who-repeatedly-stole-elderly-woman-s-account-sentenced
Former Alaska USA Federal Credit Union financial services representative Lee Michael Griffin, 31, was sentenced in the United States District Court for the Western District of Washington to one year and a day in prison plus three years of supervised release.  Griffin had paid $129,194.31 in full restitution. As alleged in part in the DOJ Release:

[G]riffin had worked at the credit union for almost two years when he made his first illegal transfer from the elderly victim's bank account to a lender to pay off his $7,000 loan. Over the next three years, even after he had left the employ of the credit union, he made 65 additional transfers to do things such as pay his mortgage, pay for a new car and other personal expenses. The victim's account settings had been changed to stop the mailing of paper statements, and instead just sent electronic statements. However, the victim did not have computer access. The theft was discovered when the victim was hospitalized, and a nephew began assisting with her finances. He discovered the thefts from the account and worked at length with the credit union to ensure the funds were restored.

https://www.sec.gov/litigation/litreleases/2022/lr25565.htm
The United States District Court for the Southern District of Florida entered a Final Consent Judgment against Ramiro Jose Sugranes, Lina Maria Garcia, and others. As alleged in part in the SEC Release:

The SEC's complaint was filed in federal district court in Miami, Florida on June 11, 2021, and its amended complaint was filed on November 15, 2021. According to the SEC's amended complaint, Sugranes, through defendants UCB Financial Advisers, Inc. and UCB Financial Services, Limited (the "UCB Entities"), engaged in a cherry picking scheme to divert profitable trades to investment accounts held by Sugranes's parents, who were named as relief defendants, and to saddle other clients with losing trades. According to the amended complaint, the scheme resulted in approximately $4.6 million in unlawful profits. The amended complaint further alleges that Garcia, the President and Chief Compliance Officer of UCB Financial Advisers, enabled the scheme by, among other things, sharing broker-dealer trading platform login information with Sugranes, which he used to carry out the cherry picking scheme.

Without admitting or denying the allegations of the amended complaint, Sugranes and the UCB Entities consented to entry of a final judgment permanently enjoining them from violations of the antifraud provisions of Sections 17(a)(1) and (3) of the Securities Act of 1933, Section 10(b) and Rules 10b-5(a) and (c) of the Securities Exchange Act of 1934, and Sections 206(1) and (2) of the Investment Advisers Act of 1940, ordering Sugranes to pay disgorgement of $4,600,000, partially on a joint and several basis with the other parties, with prejudgment interest, and a civil penalty of $500,000, and ordering each UCB Entity to pay a civil penalty of $250,000. Without admitting or denying the allegations of the amended complaint, Garcia consented to the entry of a final judgment permanently enjoining her from violations of the antifraud provisions of Section 17(a)(3) of the Securities Act and Section 206(2) of the Advisers Act and ordering her to pay disgorgement of $225,718, jointly and severally with Sugranes, along with prejudgment interest, and a civil penalty of $100,000. The relief defendants consented to a final judgment ordering them to pay disgorgement of $2,255,672, jointly and severally with Sugranes, along with prejudgment interest. Collectively, these final judgments resolve all of the SEC's claims asserted in the district court litigation.

On October 24, 2022, the SEC instituted administrative proceedings barring Sugranes from association with any broker, dealer, investment adviser, municipal securities dealer, municipal adviser, transfer agent, or nationally recognized statistical rating organization, and suspending Garcia for a period of 12 months from associating with any such firm or from participating in any offering of penny stock and, for a period of three years, prohibiting her from acting in a supervisory capacity.

https://www.sec.gov/news/press-release/2022-193
The SEC adopted a Rule/Form Amendments https://www.sec.gov/rules/final/2022/33-11125.pdf
requiring mutual funds/exchange-traded funds to transmit concise and visually engaging shareholder reports and to promote transparent and balanced presentations of fees and expenses in investment company advertisements. As set forth in part in the SEC Release:

The rule amendments will require funds to provide concise, tailored shareholder reports that highlight key information, such as fund expenses, performance, and portfolio holdings. The instructions for the revamped reports will encourage the use of graphic and text features to make them more effective. Funds will be required to tag the information in their reports in a structured data format. Further, the rule amendments require funds to make certain information that may be more relevant to investors and financial professionals who desire more in-depth information available online and available for delivery free of charge to investors on request. That information will no longer appear in fund's shareholder reports but will remain available to investors on a website identified in the shareholder report and must be filed semi-annually with the Commission.

In addition to modernizing fund shareholder reports, the Commission adopted amendments to investment company advertising rules to require that fee and expense presentations in registered investment company and business development company advertisements and sales literature be consistent with relevant prospectus fee table presentations and be reasonably current. The amendments also address representations of fees and expenses that could be materially misleading.

Throughout history, some of the world's greatest minds have extolled the virtues of simplicity. Fryderyk Chopin is credited with saying, "Simplicity is the highest goal, achievable when you have overcome all difficulties."[1] "Brevity is the soul of wit," Shakespeare told us through Polonius in the second act of Hamlet.[2] And, of course, there is Occam's razor, which stands for the principle that a simpler explanation is preferable to one that is more complex.[3]

I view today's rule as one aimed at achieving this lofty goal of simplifying disclosures for investors without sacrificing the important information they need and on which they rely. With more of the investing public putting their hard-earned money in mutual funds and ETFs,[4] it is crucial that shareholder reports contain concise, salient and accessible information about their investments. The layered disclosure approach to shareholder reports adopted today strives to do just that.

As noted in the release, staff observed in a 2020 review that the average annual shareholder report was approximately 134 pages long, with some of the longest reports observed extending over 1,000 pages.[5] One thousand pages is, of course, more reading than can be found in the Iliad and the Odyssey combined.[6] Or perhaps more relevantly to some, that is about three Harry Potter books long.[7] So, depending on your frame of reference, before finishing some open-end fund shareholder reports, you can have either traveled from Troy to Ithaca, or have made it through the escape of the Prisoner of Azkaban. Either way, getting through a shareholder report under current standards may be no small feat for any investor.

The information contained in shareholder reports under this new rule will include targeted and key information about a fund. For example, shareholder reports will include a simplified expense presentation - a table showing the expenses associated with a hypothetical $10,000 investment in the fund during the preceding reporting period, both as an expense ratio and in dollars. The shareholder reports will include a more concise Management Discussion of Fund Performance, and additional performance-related data. And, the shareholder reports will include fund statistics (such as net assets and total advisory fees paid during the reporting period) and a graphical representation of categories of portfolio holdings. Different fund series and share classes will be required to have separate reports. This layered approach is expected to reduce the size of the shareholder report significantly.[8]

Today's rule also addresses fund advertising. It will require that the presentation of investment company fees and expenses in advertisements and sales literature be standardized, consistent with the relevant prospectus fee table, and be reasonably current. The rule also takes aim at funds that hold themselves out as being "no-expense" or "zero-expense" funds, but conceal other pertinent information about potentially hidden costs, or expenses that may be incurred in the future. Misleading expense presentations are anathema to transparent markets and can lead investors to make financial decisions that are against their interests, and I hope that today's rule will help remedy these deficiencies.

I would also like to highlight one key observation about the rule. Simply because information is not included in a streamlined annual or semi-annual report, does not mean that it is not material to investors. By today's action, we are not altering our bedrock materiality standards. Investment companies will continue to post detailed financial information about fund investments on the fund's website, through the filing of Form N-CSR on EDGAR, and for delivery to investors in paper or electronically upon request. This information will include, for example, financial statements, director compensation, and matters submitted for a shareholder vote, and it will be certified by a fund's principal executive and financial officers. I encourage interested investors to exercise their rights to access those materials for more details - details which may continue to be significant to their understanding of their investments.

It is my great hope that today's rule will make it easier for all investors to better understand and monitor their investments; to understand more fully the fees that they are paying in connection with those investments; and to invest their money in a way that is actually aligned with their goals - be they retirement, a child's or grandchild's education, buying a new home, starting a business, or taking a well-earned vacation - the myriad of life events that so many of us rely on our savings and investments in mutual funds and ETFs to do.

I also hope, beyond today's rule, that we will continue to look for other ways to streamline shareholder reporting. And, in particular, it is imperative that we continue to endeavor to make sure investors have the information they need to understand all of the fees and expenses they pay in connection with their investments.[9]

As Chopin, Shakespeare and others have acknowledged, striving for simplicity is no easy feat. This is reflected in the rule before us today. It took heavy-lifting and tireless work by the staff of the Division of Investment Management, the Division of Economic and Risk Analysis, our General Counsel's office, and in the Chair's Office. Thank you to all the members of those offices and others who worked on this rule, as well as the Office of the Investor Advocate for the performance of investor testing. And, I also want to thank those who took the time to comment on the proposal, and those who participated in investor studies and testing in relation to this final rule. Your participation has helped achieve important changes.

[1] See The Fryderyk Chopin Institute, available at Narodowy Instytut Fryderyka Chopina (nifc.pl).

[2] Shakespeare, William, Hamlet, Act 2, Scene 2, 86-92 (1601).

[3] Occam's razor, also known as the "Principle of Parsimony," is the problem solving principle sometimes expressed as "entities should not be multiplied beyond necessity." The saying is attributed to William of Ockham in the fourteenth century.

[4] Based on figures collected on Form N-CEN as of December 2021, assets in open-end funds (excluding money market funds) were approximately $26 trillion.

[5] Tailored Shareholder Reports for Mutual Funds and Exchange-Traded Funds; Fee Information in Investment Company Advertisements, Release Nos. 33-11125; 34-96158; IC-34731 ("Adopting Release") at 14 and nn. 34-35.

[6] Homer, The Iliad, Translated by Robert Fagles, Penguin Books (1998); Homer, The Odyssey, Translated by Emily Wilson, W.W. Norton & Co. (2018).

[7] J.K. Rowling, Harry Potter & the Sorcerer's Stone, A.A. Levine Books (1998); J.K. Rowling, Harry Potter & the Chamber of Secrets, Scholastic, Inc. (2000); J.K. Rowling, Harry Potter & the Prisoner of Azkaban, Scholastic, Inc. (2001).

[8] See, e.g., Adopting Release at 164 (noting "investors will now receive a streamlined shareholder report that may fit on a trifold self-mailer that is delivered directly to them.")

[9] This is especially true in light of research indicating that retail investors may be overpaying fees. See, e.g., Comment Letter of Ed deHaan Yang Song, Chloe Xie and Christina Zhu, (September 29, 2020) (estimating that "retail investors could have saved $358M in 2017 alone by switching from high-fee to low-fee versions of S&P 500 funds that provide nearly identical pre-expense returns"). See also Adopting Release at 30 (noting that, although we are not adopting the proposed amendments to fund's prospectus fee disclosure summary, "[h]elping investors more readily understand fund fees and expenses is an important priority of the Commission" and that the comments we received "merit further consideration").

https://www.sec.gov/news/statement/lizarraga-statement-shareholder-reports-102622

Today, the Commission is adopting key disclosure reforms for the approximately $26 trillion mutual fund industry and $5 trillion exchange-traded fund (ETF) industry. Because of these reforms, investors will now receive information about a fund's operations and activities in a more concise, engaging, and usable way.

Investing in a fund is relatively easy these days. An investor can call their financial professional or the fund company and make an investment, or the investor's employer selects the fund in which their 401(k) invests. In either case, the fund delivers a variety of lengthy, yet essential, fund disclosures about a fund's fees, investment strategies, and operations during a particular time period.

Currently, these disclosures can be overly lengthy, complicated, and overwhelming for retail investors to process. Some fund shareholder reports are over hundreds of pages and tens of thousands of words.

There are times when working families have to make critical, time-sensitive decisions such as covering unexpected medical or household expenses, paying for college tuition, or buying a home. Depending on their investment portfolios, some investors may need to review multiple fund reports. Having to process complex, lengthy and technical disclosures where the relevant investor-useful information is difficult to discern is burdensome under any circumstances, but particularly so for families operating under the short-term pressures that household budgets often demand. Financial decisions made in this context can sometimes be critical to a working family's financial future.

Modernizing disclosures goes to the heart of the Commission's mission to protect investors. Today's release does exactly that.

The vast majority of the respondents to the Commission's Request for Information on investor-facing disclosures preferred summary disclosures, with additional information upon request or available online. These investors also expressed concern about the length of fund disclosures and supported more concise reports.

It's important that enhanced disclosures are informed by the needs of investors, what's useful to investors, and how best to deliver those disclosures given the changing technological landscape. Appropriately tailored and continuous investor testing can significantly inform that understanding.

It is my hope that the investing public will soon benefit from meaningful changes in the format and content of fund disclosures as a result of today's release.

I am pleased to support these reforms and would like to thank the Commission staff, and particularly staff in the Division of Investment Management, who advanced this important initiative.

Thank you, Chair Gensler. This shareholder report rulemaking represents a worthwhile next step in the Commission's ongoing effort to improve the quality and usability of mutual fund disclosure. I have questions and reservations about many of the choices we have made and believe the step forward could have been bigger. Nevertheless, the good here outweighs the bad, so I support this rulemaking.

The centerpiece of this rulemaking is a requirement that mutual funds and Exchange Traded Funds ("ETFs") provide shareholders with "concise and visually engaging annual and semi-annual reports." In a nutshell, today's changes will result in shareholder reports that contain only information that we have determined is most important to investors. Other information that we have deemed less critical will be made available online, delivered free on request, and filed twice a year on Form N-CSR in EDGAR.

Determining where to draw the line between what investors should receive in the shareholder report and what should be purged is not easy. Despite persistent attempts to expand what should be deemed must-have information, the drafting team largely stood strong and stuck to what is important. The resulting layered approach highlights key information, yet still allows more inquisitive investors to get additional disclosure.

While in general, this rule should improve the investor experience, several policy choices cut against that conclusion. For example, these amendments will permit a shareholder report to cover only the class of a multi-class fund in which the shareholder receiving the report has invested. Shareholder reports showing the range of share class options would allow fund investors to see cheaper class options available to them. In light of the Commission's recent spate of enforcement actions against advisers for failing to place clients in the most appropriate share class, this change from the proposal is particularly hard to understand.

Another puzzling aspect of this rulemaking is its elimination of e-delivery under rule 30e-3, which took effect only last year. Rule 30e-3 allows investment companies, instead of mailing full reports to shareholders, to provide a notice stating that the reports are available online. Shareholders are still free to choose paper delivery. Rule 30e-3 has its flaws, but at the time of its passage, it represented a significant move toward a more rational approach to e-delivery.

I would have supported eliminating this option for funds if we were pivoting entirely to an access equals delivery approach. After all, after we adopted rule 30e-3, the pandemic hit, and people have become even more comfortable with receiving and interacting with everything online. The paper delivery default that riddles our rulebook belongs in the SEC archives.

Gutting rule 30e-3 is just the latest example of the Commission changing its mind about a new rule without any clear rationale for doing so. The Commission's reputation as a sober thoughtful regulator may suffer as the market learns to approach the implementation of new regulation with a jaded skepticism. "This time we mean it," is not a message we should find ourselves having to broadcast to allay the concerns of whipsawed compliance officers and bewildered investors. This Commission change of heart, which affects how funds communicate with their shareholders, is likely to be particularly confusing to investors.

We paired the cost-increasing decision not to let funds use rule 30e-3 with a decision not to adopt a cost-saving part of the proposal-proposed rule 498B. Proposed rule 498B would have required only new investors in a fund to receive a prospectus. Thereafter, funds would not have to send shareholders a copy of the prospectus. Existing shareholders would be notified of material changes and would be able to view the full prospectus online. Citing negative comments, we have decided to put this proposal on ice for "further consideration." From my review of the comments, many 498B supporters merely raised questions about particular aspects of the proposal - e.g., calls for greater flexibility on timing regarding notice of a material event - but would have very much liked to have the option of putting this alternative into practice. This new rule had the potential to cut down on disclosure duplication and reduce costs.[1] So why are we throwing this option out altogether?

A similar question could be asked regarding the decision to jettison the small but important proposal related to Acquired Fund Fees and Expenses ("AFFE"). The proposal would have allowed mutual funds and ETFs that invest no more than 10% of their total assets in acquired funds to omit the AFFE line item in the fees and expenses table. Current AFFE disclosure requirements have dissuaded funds from investing in business development companies ("BDCs") because the AFFE associated with BDC investments is often high and therefore would adversely affect the investing funds' expense ratios. Because of this effect, some index providers exclude BDCs from their indices. The AFFE issue is part of the reason BDCs have yet to live up to their potential as a source for small businesses capital. As one commenter noted, when the Commission adopted the AFFE disclosure, it specifically wanted to avoid any "adverse impact on capital formation."[2] This proposal would have gone some way toward achieving that goal by, for example, potentially facilitating the reintroduction of BDCs into indices.

Speaking of indices, as proposed, the final rule will require funds to compare their performance to "an appropriate broad-based index," which is defined as "one that represents the overall applicable domestic or international equity or debt markets."[3] On substance, I find myself on the side of commenters who argued that the "requirement to compare a fund's performance to an index that is both 'broad-based' and 'appropriate' may, at times, conflict."[4] As one commenter pointed out "requiring a real estate fund to compare [itself] to an S&P Index would be misleading to investors that are investing in funds to gain exposure to the real estate segments of the market."[5]

What troubles me most about these decisions, however, is that they were based largely on conclusions drawn from a study by the SEC's Office of Investor Advocate that was not published until September 2022, two years after we proposed this rule and just one month before we are adopting it.[6] In other instances, the Commission has made available research and data used to inform final rules and amendments after a proposal's publication in the Federal Register; but, in this instance, the ink on this report is barely dry. When commenters are struggling to respond to proposals within already truncated comment periods, should we be asking them to be prepared to review and rapidly comment on material published well after a comment period has closed?

I have other concerns, including the overlap between our amended investment company advertising rules and FINRA's communications rules, but I think you get the point that today's rulemaking is not perfect. I can ultimately support it, however, because fund shareholders will benefit from this trimmed-down, layered approach to disclosure. I hold out the hope that we look at these changes as the beginning and not the end of an ongoing process. I offer my thanks to the staff of the Divisions of Investment Management, Economic and Risk Analysis, and Examinations, the Office of the General Counsel, and other offices throughout the Commission. Rulemakings like this one are at the heart of the Commission's mission, and I look forward to seeing these changes reflected in the disclosures shareholders receive.

[1] See Comment letter from T. Rowe Price Group, January 5, 2021, https://www.sec.gov/comments/s7-09-20/s70920-8210190-227541.pdf ("We estimate that our funds and their shareholders will save approximately $5.4 million annually by relying on Rule 498B."). ("T. Rowe Comment").

[2] See Comment letter from Proskauer Rose LLP, January 4, 2021, https://www.sec.gov/comments/s7-09-20/s70920-8204291-227466.pdf.

[3] Proposal at 67.

[4] T. Rowe Comment.

[5] See Comment letter from Fidelity, January 4, 2021, https://www.sec.gov/comments/s7-09-20/s70920-8204333-227469.pdf.

[6] See Alycia Chin, Jonathan Cook, Jay Dhar, Steven Nash, and Brian Scholl, How Do Consumers Understand Investment Quality? The Role of Performance Benchmarks, Office of the Investor Advocate Working Paper 2022-01 ("Chin, et al."), available at https://www.sec.gov/files/performance-benchmarks-2022-01.pdf. See also Press Release, SEC, Office of the Investor Advocate Releases Research Study on Fund Performance Benchmarks (September 19, 2022) https://www.sec.gov/news/press-release/2022-165.

Thank you, Chair Gensler. Today, we are voting on the recommendation to finalize rule and form amendments intended to require mutual funds and exchange-traded funds ("ETFs") to transmit concise and visually engaging reports to shareholders.

In 2009, the Commission adopted amendments to require mutual funds and ETFs to include a summary section at the front of the statutory prospectus.[1] These funds were also permitted to provide a summary prospectus containing "streamlined and user-friendly information that is key to an investment decision," with more-detailed information available online.[2] At the time, the Commission stated that the layered disclosure framework that "we are adopting has the potential to revolutionize the provision of information to the millions of investors who rely on mutual funds for their most basic financial needs."[3]

It was a privilege to be part of the team within the Division of Investment Management that worked on the summary prospectus. After that project, we started working on making the shareholder reports more effective for investors. Unfortunately, the financial crisis and the subsequent efforts to implement the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act[4] ("Dodd-Frank Act") delayed those efforts, but I am pleased we ultimately were able to return to that work.

Today, the Commission is expanding the layered disclosure framework to funds' shareholder reports. My expectation is that fund investors will benefit from the ability to monitor and assess their ongoing investments in a concise, easy-to-understand format. Importantly, fund investors will not lose access to the information that no longer will appear in funds' shareholder reports, such as the financial statements and accompanying notes. This information will be available on a fund's website and in its Form N-CSR filing, and fund investors also may request paper copies of this additional information by mail.

Section 912 of the Dodd-Frank Act authorizes the Commission to engage in investor testing programs for the purpose of evaluating any of its rules or programs.[5] Under this authority, the Commission staff engaged in investor testing with respect to shareholder reports in 2011. I am pleased that the features of the streamlined shareholder reports introduced by today's amendments are responsive to the feedback that we received in connection with that prior testing.[6] Additionally, when the Commission proposed these amendments in 2020,[7] it published a hypothetical annual report[8] to illustrate what a more concise, tailored shareholder report could look like. One commenter engaged a market research firm to distribute the hypothetical report to individual mutual fund and/or ETF investors.[9] The commenter reported that - of the more than 2,000 investors who provided responses to a feedback flier that accompanied the hypothetical report[10] - at least 91% stated that the streamlined shareholder report format was useful for monitoring their fund investments.[11] I am encouraged by the results of this empirical testing.

Open-end funds will no longer be able to rely on Rule 30e-3 under the Investment Company Act of 1940.[12] Rule 30e-3, adopted in 2018, permits funds to satisfy applicable shareholder report delivery requirements by sending paper notices that a shareholder report is available at an identified website address, unless an investor has instead consented to electronic delivery of the notice.[13] While I appreciate the industry efforts to implement Rule 30e-3, that rule was adopted at a time when form requirements caused shareholder reports to be quite voluminous.[14] Because today's amendments contemplate shareholder reports that are 3-4 pages in length, the underlying conditions have fundamentally changed. Accordingly, the significant reduction in the size of shareholder reports ultimately justifies the rescission of Rule 30e-3 with respect to open-end funds and ETFs.

Finally, the Commission today is adopting amendments to investment company advertising rules designed to promote transparent and balanced presentations of fees and expenses in advertisements. These amendments will apply to all investment companies that are subject to the Commission's advertising rules, including mutual funds, ETFs, registered closed-end funds, and business development companies. An understanding of a fund's fees and expenses - both on a standalone basis and in comparison to other funds - is an important consideration when making an investment. Accordingly, I am pleased that today's amendments regarding investment company advertising will empower investors to make more informed investment decisions.

For these reasons, I support today's amendments, although I agree with Commissioner Peirce that the Commission should address concerns regarding the disclosure requirements related to acquired fund fees and expenses.[15] I thank the staff in the Divisions of Investment Management and Economic and Risk Analysis, as well as the Office of the General Counsel, for their efforts. I also want to acknowledge the staff's efforts in preparing a comprehensive summary of the public comments received on the proposal, which was very helpful in reviewing the staff's recommendation.

[1] See Enhanced Disclosure and New Prospectus Delivery Option for Registered Open-End Management Investment Companies, Investment Company Act Release No. 28584 (Jan. 13, 2009) [74 FR 4545 (Jan. 26, 2009)], available at https://www.sec.gov/rules/final/2009/33-8998.pdf.

[2] Id.

[3] Id.

[4] Pub. L. No. 111-203, 124 Stat. 1376 (2010).

[5] Id. at § 912, 124 Stat. 1376, 1824.

[6] For example, we had identified that shareholder reports for certain types of funds - such as index funds that track a total stock market index - can be quite lengthy due to the large number of entries on the schedules of investments.

[7] Tailored Shareholder Reports, Treatment of Annual Prospectus Updates for Existing Investors, and Improved Fee and Risk Disclosure for Mutual Funds and Exchange-Traded Funds; Fee Information in Investment Company Advertisements, Investment Company Act Release No. 33963 (Aug. 5, 2020) [85 FR 70716 (Nov. 5, 2020)], available at https://www.sec.gov/rules/proposed/2020/33-10814.pdf.

[8] See Hypothetical Streamlined Shareholder Report, available at https://www.sec.gov/files/final_2020_im_annual-shareholder%20report.pdf.

[9] Comment Letter of Broadridge Financial Solutions, Inc. (Jan. 4, 2021), available at https://www.sec.gov/comments/s7-09-20/s70920-8204380-227517.pdf.

[10] See Shareholder Report Feedback Flier, available at https://www.sec.gov/rules/proposed/2020/im-shareholder-report-ff.html.

[11] Comment Letter of Broadridge Financial Solutions, Inc., supra note 7.

[12] 17 CFR 270.30e-3.

[13] See Optional Internet Availability of Investment Company Shareholder Reports, Investment Company Act Release No. 33115 (June 5, 2018) [83 FR 29158 (June 22, 2018)], available at https://www.sec.gov/rules/final/2018/33-10506.pdf.

[14] The adopting release for today's amendments notes that an analysis conducted by the Commission's staff reveals that the average annual report is approximately 134 pages long, and the average semi-annual report is 116 pages long. See Tailored Shareholder Reports for Mutual Funds and Exchange-Traded Funds; Fee Information in Investment Company Advertisements, Investment Company Act Release No.34731 (Oct. 26, 2022), available at https://www.sec.gov/rules/final/2022/33-11125.pdf.

[15] See Hester M. Peirce, One Good Step, More to Go: Statement on Final Tailored Shareholder Reports for Mutual Funds and Exchange-Traded Funds; Fee Information in Investment Company Advertisements (Oct. 26, 2022), available at https://www.sec.gov/news/statement/peirce-statement-shareholder-reports-102622.

https://www.sec.gov/news/press-release/2022-192
The SEC adopted rules https://www.sec.gov/rules/final/2022/33-11126.pdf requiring securities exchanges to adopt listing standards that require issuers recover erroneously awarded incentive-based compensation received by current or former executive officers. As set forth in part in the SEC Release:

The new rules implement Section 10D of the Securities Exchange Act of 1934, a provision added by the Dodd-Frank Wall Street Reform and Consumer Protection Act. New Exchange Act Rule 10D-1 directs national securities exchanges and associations to establish listing standards that require a listed issuer to: (1) adopt and comply with a written policy for recovery of erroneously awarded incentive-based compensation received by its current or former executive officers in the event it is required to prepare an accounting restatement due to its material noncompliance with any financial reporting requirement under the securities laws, during the three completed fiscal years immediately preceding the date that the issuer is required to prepare an accounting restatement; and (2) disclose those compensation recovery policies in accordance with Commission rules, including providing the information in tagged data format.

Further the final rules require specific disclosure of the listed issuer's policy on recovery of incentive-based compensation and information about actions taken pursuant to such recovery policy. The amendments also require all listed issuers to: (i) file their written recovery policies as exhibits to their annual reports; (ii) indicate by check boxes on their annual reports whether the financial statements included in the filings reflect correction of an error to previously issued financial statements and whether any of those error corrections are restatements that required a recovery analysis; and (iii) disclose any actions they have taken pursuant to such recovery policies.
This rulemaking is straightforward and long awaited. It was over a decade ago when Congress mandated that the Commission promulgate rules related to the recovery, by issuers from its executives, of erroneously awarded incentive based compensation.[1]

The rulemaking would require an issuer to have in place a policy for mandatory recovery of compensation based on materially misreported financials. The principle is simple: if an executive was paid too much based upon incorrect accounting, then the executive should not get to keep that money. In such an event, the portion of compensation attributable to that incorrect accounting would be recovered, or "clawed back," by the issuer.

Other components of the rule would require disclosure to investors of the recovery policy itself, additional disclosures when it has been determined pay should be recovered, and also, in the event there is a restatement of financials but no recovery necessitated, an explanation of why that is the case.[2] Further, the rule would require a check box on the cover of annual reports to provide investors with clear and accessible notice of when there is a correction of an error to previously issued financial statements and whether any such corrections are restatements that trigger a recovery analysis.[3]

Additionally the rulemaking would require recovery policies to be triggered by material errors defined to include both "Big R" and "little r" restatements.[4] As the adopting release notes, "little r" restatements accounted for 76% of all restatements in 2020;[5] and scoping such restatements into the rule is consistent with the relevant legal precedent,[6] statutory language and mandate,[7] accounting literature,[8] provisions of U.S GAAP and IFRS,[9] and staff guidance regarding accounting errors and materiality determinations.[10]

Both the scope and the design of the rule were carefully calibrated to incentivize higher quality financial reporting and to hold executives and issuers alike accountable by returning erroneously awarded incentive based compensation.[11]

Thank you to members of the public who submitted comment letters in connection with this rulemaking. Thank you also to the staff of the Division of Corporation Finance, the Office of the Chief Accountant, the Division of Economic and Risk Analysis, the Office of the General Counsel, and also the staff within Chair Gensler's office for your hard work.

[1] Listing Standards for Recovery of Erroneously Awarded Compensation, Release No. 33-11126 (October 26, 2022) (the "Adopting Release") at 1 (citing Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 ("Dodd-Frank Act"), which added Section 10D to the Securities Exchange Act of 1934.).

[2] Id at 109-14.

[3] Id at 109.

[4] Id at 35 (noting that "restatements that correct errors that are material to previously issued financial statements" are commonly referred to as "Big R" restatements, whereas "restatements that correct errors that are not material to previously issued financial statements, but would result in a material misstatement if (a) the errors were left uncorrected in the current report or (b) the error correction was recognized in the current period" are commonly referred to as "little r" restatements.).

[5] Id at 36 n.108.

[6] Id at 27 n.74.

[7] Dodd-Frank Act Section 954. See also Adopting Release at 34.

[8] Adopting Release at 34 n.103.

[9] See id at 27 n. 73, 34 n. 103, & accompanying text.

[10] See Staff Accounting Bulletin No. 99, Materiality (Aug. 12, 1999) and Staff Accounting Bulletin No. 108, Considering the Effects of Prior Year Misstatements when Quantifying Misstatements in Current Year Financial Statements (Sept. 13, 2006). See also Statement of Acting Chief Accountant Paul Munter, Assessing Materiality: Focusing on the Reasonable Investor When Evaluating Errors (Mar. 9, 2022).

[11] See Report of the Senate Committee on Banking, Housing, and Urban Affairs, S.3217, Report No. 111-176 at 135- 36 (Apr. 30, 2010) ("The Committee believes it is unfair to shareholders for corporations to allow executives to retain compensation that they were awarded erroneously.").
Today, the Commission adopts a rule that implements a key Congressional mandate under Section 954 of the Dodd-Frank Act: requiring public companies to recover incentive-based compensation that is erroneously paid to executives if the company restates its financial statements due to material errors.

To be clear: this is money that the executive was not entitled to, and would not have received, if the financial statements had been prepared accurately.

This rule is about fundamental fairness and integrity: Congress' intent was for shareholders to avoid costly litigation to recoup unearned executive compensation, preserving funds that, from a shareholder's perspective, could be put to more productive uses.

As I noted when the Commission voted on the Pay versus Performance rule this past September, a key factor driving the 2008 global financial crisis was the stark misalignment of incentives that led executives to take excessive, catastrophic risks.

In my previous role as a congressional staffer, I had a front row view of the fallout from this reckless behavior on the financial futures of working families. The result? Trillions of dollars of avoidable losses in household wealth; taxpayer-funded bailouts to the tune of hundreds of billions of dollars; millions of foreclosures; and a substantial loss of confidence in our markets.  

This gap in corporate governance guardrails particularly harmed long-term investors like pension funds and working families saving for retirement. Those choosing to invest in their long-term financial security are more likely to bear the costs of reckless actions by executives that temporarily increase share prices in the short-term but that lead to accounting restatements in the longer-run. To decrease the risk of these disruptions, Congress directed the Commission to adopt today's rule.

The rule will ensure that executives are incentivized to produce high quality, accurate financial statements, which investors rely on to make informed investment decisions.

Some have indicated that the rise in voluntary clawback agreements in recent years makes this rule unnecessary. To me, this trend makes the case for the rule even more compelling. Currently, there is significant variation in the types of clawback agreements used by issuers. By providing for standardized criteria, the rule gives investors greater assurances that all issuers face similar incentives to produce quality financial statements.

The rule also prevents the abuse of a potential loophole by incorporating what are referred to as "little r" restatements. "Little r" restatements correct errors immaterial to previously issued financial statements but that later become material to future reporting. Empirical evidence suggests that managers may try to use the discretion built into accounting standards to re-classify "Big R" restatements to "little r" restatements.

These types of restatements have made up an increasingly high share of all financial restatements in recent years. The final rule appropriately incorporates both "Big R" and "little r" restatements, ensuring that executives do not have an incentive to opportunistically classify material errors. 

I'm pleased to support the final adoption of today's rule. I would like to thank all of the Commission staff, and particularly staff in the Division of Corporation Finance, who worked so diligently to craft this thoughtful rule that will reduce incentives to engage in excessive risk-taking, provide investors with more confidence in board oversight of executive management, and promote financial stability.  
What we are doing today-implementing the statutory clawbacks mandate-is commendable. But how we are doing it-expansively, inflexibly, and impractically-is not. Accordingly, I cannot vote to adopt this rule.

Section 954 of the Dodd-Frank Act generally requires the Commission to direct exchanges to require listed companies to "develop and implement a policy" for disclosing how they handle incentive-based compensation tied to reported financial information and, when that reported information has to be restated, a policy for clawing back related erroneously awarded compensation.[1] Congress did not prohibit us from allowing listing exchanges and issuers some flexibility in crafting, respectively, the required listing standards and policies and procedures. Nor did Congress, in adopting this provision, prohibit us from using our exemptive authority under Section 36 of the Exchange Act, which allows the Commission to tailor the implementing regulations if doing so is "necessary or appropriate in the public interest, and is consistent with the protection of investors."[2] Instead of taking advantage of this statutory flexibility, the release before us adopts a prescriptive approach that, because of its breadth and inflexibility, in some cases, could impose costs on shareholders greater than the benefits they derive from the clawbacks.

Had we built flexibility into the rule, listing exchanges and companies could have developed sensible approaches to achieving the laudable goal of clawing back compensation paid on the basis of subsequently restated financial metrics. The adopting release, however, fails to permit listing exchanges to craft workable listing standards and enforce them in a common-sense manner. Likewise, the final rule does not permit company boards, guided by their fiduciary duty, to determine when clawing back compensation makes sense. Such an approach would have served shareholders by ensuring that companies claw back erroneously awarded compensation when doing so yields a net benefit to shareholders.

The Rule's Scope is Too Broad

This rule is unnecessarily broad in at least four ways. First, the rule is not limited to "Big R" restatements, which restate historical financial statements to correct errors that were material to those previously issued financial statements. The final rule explicitly also requires clawbacks based on so-called "little r" restatements, by which companies restate prior period information in the current period comparative financial statements. Issuers use "litte r" restatements for errors that are not material to previously issued financial statements, but would result in a material misstatement if either the errors were left uncorrected in the current report or the error correction were recognized in the current period. Section 954, which looks to when an "issuer is required to prepare an accounting restatement due to the material noncompliance of the issuer with any financial reporting requirement under the securities laws," does not force the inclusion of "little r" restatements. Including them unnecessarily complicates the rule and may require clawback analysis when the error did not lead to erroneous compensation during the three-year period, or require a clawback of de minimis amounts. The Commission explained in 2021, when it reopened comment on the 2015 proposal, that it was concerned about opportunistic behavior by companies when choosing between a "Big R" and "little r" restatement.[3] The release does not substantiate these concerns, but if companies and their auditors are misjudging the materiality of financial statement errors, a compensation clawback rule is not the proper remedy.[4] A better approach-and one that would be easier to apply-would have required clawbacks only when a company has to "prepare a financial restatement to correct a material error of the type required to be reported under Item 4.02(a) of Form 8-K."[5]

Second, the rule applies to too many company employees. Section 954 requires clawbacks from "executive officers," but leaves the term undefined. After quoting from the Senate Banking Committee Report that the clawback provision "is required to apply to executive officers, a very limited number of employees, and is not required to apply to other employees,"[6] the Commission adopts an intentionally broad definition of "executive officer."[7] Affected employees would include anyone who performs a policy-making function for the issuer regardless of involvement with the events leading to the restatement. By one count, the rule will apply to as many as 50,000 public company employees.[8] Better approaches might have been to limit this definition to the company's top five executives,[9] to claw back compensation only from people with a material role in the events leading to the restatement,[10] or to allow exchanges or compensation committees the flexibility to define the term.

Third, the rule applies to all listed issuers, including emerging growth companies ("EGCs"), Smaller Reporting Companies ("SRCs"), and Foreign Private Issuers ("FPIs"). The Commission "acknowledge[s] that SRCs and EGCs may face disproportionate costs of compliance as compared to other companies," but also speculates that they "may realize disproportionate benefits."[11] The Commission does not show that those benefits will outweigh the costs, and the Regulatory Flexibility Analysis does not seriously assess ways to ease the burden for small issuers. The Commission should have used its exemptive authority to exempt EGCs or SRCs from the rule, tailor it for these companies,[12] provide them with a more extended compliance period, or delay their XBRL tagging implementation period.[13] The Commission also could have permitted listing exchanges to make reasonable accommodations for FPIs subject to different clawback regulations.[14]

Fourth, the definition of "incentive-based compensation" is too broad. We reasonably could have limited the definition to accounting-based metrics. Instead, the Commission is requiring companies to claw back compensation based on stock price and total shareholder return ("TSR"). Whereas Section 954 requires clawing back compensation that is "based on financial information required to be reported under the securities laws," stock price and TSR are market-driven metrics of how the stock performs that reflects "many factors beyond its reported financial information."[15] Although "affected by accounting-related information," stock price and TSR are not "accounting-based metrics," which the release acknowledges.[16]

The Rule is Unnecessarily Prescriptive

The rule's broad scope is paired with an unduly prescriptive attempt to deprive listing exchanges and companies of any discretion. The Commission allows the exchanges to play only an essentially ministerial role in crafting listing standards and similarly seeks to direct the manner in which exchanges conduct oversight and enforcement. The rule also limits boards' ability to tailor their policies to their unique facts or to determine when clawing compensation back is worth the effort. Allowing boards to decide to whom the policy should apply, when it should apply, and when attempting recovery does not make sense would fall comfortably within the discretion normally afforded to boards, a discretion that is bounded by directors' fiduciary obligation under state laws to exercise their authority properly.[17]

A few examples illustrate the rule's unnecessary prescriptiveness. First, the rule's impracticability standard is itself impracticable. The rule requires a company to recover erroneously awarded compensation unless: the direct expense it would have to pay to a third party to help would exceed the amount to be recovered; recovery would violate a home country law that was adopted before this rule was finalized; or recovery would jeopardize a broadly-available tax-qualified retirement plan.[18] To qualify for the first exception, the company has to "make a reasonable attempt" to claw back the compensation and document its efforts.[19] Moreover, internal costs like "resources required to work with, manage, or monitor the third party's efforts" or those "associated with defense of counter-claims" do not count in the cost-benefit analysis.[20] A de minimis threshold under which companies would not need to attempt to recover compensation would have been a more practicable approach.[21]

Another example of the rule's over-prescriptiveness is its disclosure mandates. Companies must disclose: their clawback policies as a tagged exhibit to their annual reports[22]; the amount of erroneously awarded compensation attributable to an accounting restatement[23]; an analysis of how the erroneously awarded compensation was calculated[24]; the estimates used to determine the amount of erroneously awarded compensation linked to stock price or TSR and an explanation of the methodology used for such estimates [25]; amounts recovered[26]; amounts still owed[27]; and amounts forgone.[28] The rule could instead have required website disclosure of policies and procedures and provided for streamlined, fully anonymized disclosure about amounts recouped, owed, and forgone.[29]

The release strains to read inflexibility into the statutory language, but Section 954 affords the Commission discretion to craft a workable standard. The statute requires only that a company "develop and implement" a clawback policy, not that every company adopt an identical policy or that companies recover all erroneously paid compensation from employees. As one commenter suggested, the Commission could have "simply direct[ed] the exchanges to require companies to adopt clawback policies and then provide annual disclosure in their proxy statements that describe the rationale for the company's clawback policy, any revisions to that policy, and the role of the compensation committee in making clawback decisions."[30] An approach that afforded greater discretion to exchanges and boards could have been less costly and yet still effectuated the statutory purpose. Some companies might make the same choices the Commission is making here, but affording companies discretion would best protect shareholders.

Shareholders Will Pay for the Rule's Complexity

Balanced clawback policies can benefit shareholders, which is why many companies already have implemented such policies. Now the Commission is upsetting the balance by dictating a new approach that will require many companies to replace their existing policies and renegotiate contracts with affected employees in a fairly short time period.[31] Almost every one of the Commission's discretionary choices increases the complexity and cost of the rule as compared to the statutory baseline. The Commission instead should have used its discretionary authority to ensure that clawback policies would yield a net benefit for shareholders.

Again, a few examples illustrate how shareholders will pay for this rulemaking more than they benefit:

  • The release does not provide a de minimis threshold. As one commenter noted:

[I]t hardly seems worthwhile for a board to have to "make a reasonable attempt to recover" an excess incentive compensation amount of $100. Even spending time discussing such a matter is not in the shareholders' best interests, no less the fact that the value of any amount of time spent pursuing such amount would far exceed the recovery.[32]

  • Because of the broad scope of covered executives,[33] companies likely will spend too much trying to recoup compensation from lower level executive officers. As Professor Fried noted, "below-5 executives pay packages are much smaller than top-5 executive pay packages."[34] Recovering compensation from lower-level executives will likely be as costly as recovering from their more senior counterparts, but less lucrative.

  • Clawbacks associated with "little r" restatements are likely to involve lower dollar amounts than "Big R" restatements given the immaterial nature or prior year adjustments. To ease the burden of clawing back compensation after "little r" restatements, the Commission could have provided Boards with more discretion to determine when it would be too costly to attempt a recovery effort or could have exempted compensation based on TSR.

  • More generally, compensation returned could be extremely minimal and recoupment costs very high for a significant portion of TSR-related clawbacks, so the Commission's decision to require companies to conduct these clawbacks may not benefit shareholders.[35]

  • Finally, this rule opens up companies to new forms of litigation risk.

    • The Commission acknowledges that its decision to include a trigger date-"the date that the issuer's board . . . concludes, or reasonably should have concluded, that the issuer is required to prepare an accounting restatement"[36]-"creates some risk that the board's conclusions will be subject to litigation."[37]
    • The rule requires that companies must recover the money "reasonably promptly,"[38] which also invites litigation risk and may discourage recovery practices that could mitigate costs to companies, like netting overpayments with other incentive-based underpayments, or set-offs.[39]

Conclusion

A seemingly simple mandate-make sure companies claw back compensation when they restate their financials-is not, as it turns out, so simple when a Commission with a penchant for prescription is charged with putting it into practice. The passage of time has not been shareholders' friend. As we did in implementing the pay versus performance rule under Section 953 of Dodd-Frank, we have added complexity at every stage of the rulemaking process. Rather than scoping the rule appropriately to meet the statutory objective and affording listing exchanges and companies reasonable discretion in applying the rule, our path will cost shareholders more and benefit them less.

While I take issue with a number of the policy decisions the Commission made, the staff has worked very hard on this rule. Seven years between proposal and adoption is a long time, so I know this day is particularly welcome for many in the Division of Corporation Finance, the Division of Economic and Risk Analysis, the Office of General Counsel, and other staff who have worked on this rule. I appreciate your hard work and lively engagement with me and my staff. Special thanks go to Luna Bloom, Steven Hearne, Brian Galle, and Jessica Barberich for answering my many questions on the release, along with Lindsay McCord and Jonathan Wiggins for lots of time patiently discussing the fine points of "little r" restatements.

[1] Pub. L. No. 111-203, § 954, 124 Stat. 1376, 1904 (2010) (codified at 15 U.S.C. § 78j-4).

[2] 15 U.S.C. § 78mm. In other places, Congress did prohibit the Commission from exercising exemptive authority. See, e.g., Dodd-Frank Act § 772 (prohibiting invoking the Commission's exemptive authority in connection with security-based swaps reforms).

[3] Reopening of Comment Period for Listing Standards for Recovery of Erroneously Awarded Compensation, Rel. No. 34-93311, 86 Fed. Reg. 58232, 58234, Oct. 21, 2021 ("Since the Commission issued the Proposing Release in 2015, concerns have been expressed that issuers may not be making appropriate materiality determinations for errors identified. Some commentators have suggested that this could be because some of these issuers are seeking to avoid compensation recovery under their clawback policies." (footnote omitted)).

[4] Our Acting Chief Accountant recently warned companies to conduct objective materiality analyses and invited them to come in and talk to the Office of Chief Accountant. Paul Munter, Assessing Materiality: Focusing on the Reasonable Investor When Evaluating Errors, SEC (Mar. 9, 2022), https://www.sec.gov/news/statement/munter-statement-assessing-materiality-030922.

[5] See Comment Letter from American Bar Association Committee on Federal Regulation of Securities of the Section of Business Law at 17, Feb. 11, 2016, https://www.sec.gov/comments/s7-12-15/s71215-67.pdf (hereinafter "ABA 2016").

[6] See Adopting Release at 7 n.9 (quoting S. Rep. No. 111-176 at 136 (2010)).

[7] See 17 CFR § 240.10D-1(d); Adopting Release at 50-55.

[8] Jesse M. Fried, Rationalizing the Dodd-Frank Clawback, 13 (Eur. Corp. Governance Inst., Working Paper No. 314, 2016) (hereinafter "Fried").

[9] See, e.g., id. at 62 n.144. In addition to easing the rule's burdens, such an approach might better achieve the objective of improving corporate behavior, since these five people are most able to affect what the company does. As Fried explains, "there is a vast difference in power between the most powerful executives in the top-5 and the most powerful executives in the below-5." Id. at 48.

[10] See Comment Letter from Society for Corporate Governance at 2-3, Nov. 29, 2021, https://www.sec.gov/comments/s7-12-15/s71215-9411438-263053.pdf (hereinafter "SCG 2021").

[11] Adopting Release at 178.

[12] See, e.g., Comment Letter from ABA 2016 at 74-75 (listing specific ways in which the Commission could tailor regulations for EGCs and SRCs).

[13] See Pay Versus Performance, Rel. No. 34-95607, 87 FR 55134, 55162, Oct. 11, 2022 (Allowing SRCs "to provide the required Inline XBRL data beginning in the third filing in which it provides pay versus-performance disclosure, instead of the first.").

[14] See, e.g., Comment Letter from Sullivan and Cromwell at 2, Sep. 22, 2015, https://www.sec.gov/comments/s7-12-15/s71215-63.pdf ("Because employment law is often governed by the location of the employee, a limited conflicts of law exception for a foreign private issuer's home country law will not adequately address the issues faced by multinational corporations (including US issuers) with executive officers resident in and performing services in numerous jurisdictions. For this reason, the Proposed Rule would potentially put an issuer in the position of failing to comply with the applicable listing standard or governing local law.").

[15] Comment Letter from ABA 2016 at 28.

[16] Adopting Release at 63 ("Although the phrase 'financial information required to be reported under the securities laws' might be interpreted as applying only to accounting-based metrics, in consideration of the statutory purpose described above, we have determined that it is appropriate to interpret the term to include performance measures including stock price and TSR that are affected by accounting-related information and that are subject to our disclosure requirements.") (emphasis added); see also Comment Letter from McGuireWoods, LLP and Brownstein Hyatt Farber Schreck LLP at 18, Nov. 22, 2021, https://www.sec.gov/comments/s7-12-15/s71215-9385310-262666.pdf ("[N]either stock price nor TSR is a financial reporting measure used in preparing financial statements.) (hereinafter "McGuireWoods"). The Commission implausibly argues that Congress' intent to include a broad set of metrics is evident in the phrase "based on financial information." Adopting Release at 63-64 (emphasis added). If Congress intended "based on" to encompass compensation that was only "in part" based on financial metrics, it would have said as much. Dodd-Frank uses the phrases "based in whole or in part" and "based, in whole or in part" elsewhere.

[17] See, e.g., Comment Letters from the U.S. Chamber of Commerce Center for Capital Markets Competitiveness at 7-8, Sept. 14, 2015, https://www.sec.gov/comments/s7-12-15/s71215-29.pdf ("In many ways, the Proposal seems premised on the faulty, cynical notion that notwithstanding their well-established fiduciary duties under state law, independent directors are not to be trusted to do the right thing when it comes to matters of executive compensation or legal compliance."); Center On Executive Compensation at 2, Sept. 14, 2015, https://www.sec.gov/comments/s7-12-15/s71215-38.pdf ("The Commission's approach to the implementation of the Dodd-Frank clawback requirement should be considered in concert with the fiduciary duties of a registrant's Board of Directors. Pursuant to these duties, which extend to all areas of board oversight, a board must act in good faith and with reasonable care to make decisions which are in the best interest of the corporation and its shareholders. These fiduciary duties weigh in favor of granting the Board discretion in key areas of the final rule to ensure the clawback requirement is implemented in a manner which both fulfills congressional intent and protects shareholder interests."); FedEx Corporation at 2, Sept. 14, 2015, https://www.sec.gov/comments/s7-12-15/s71215-31.pdf ("A company's board of directors should have discretion whether to seek recovery of incentive-based compensation if there is a triggering financial restatement. The board of directors has a fiduciary duty to act in the best of interests of stockholders."); ABA 2016 at 60 ("We firmly believe that Boards of Directors will be sufficiently motivated both by their fiduciary obligations, as well as the implicit pressure that is likely to result from the required disclosure [of clawback policies under Section 954], to take appropriate action to recover excess incentive-based compensation in an expeditious and pragmatic manner. Additional detailed requirements that will either govern or impact the manner of recovery would simply make an already overly-prescriptive rule even more formalistic and difficult to enforce").

[18] See CFR § 240.10D-1(b)(1)(iv).

[19] See Adopting Release at 92 ("The final rules also require the issuer to make a reasonable attempt to recover incentive-based compensation before concluding that it would be impracticable to do so. The issuer must document its attempts to recover and provide that documentation to the exchange.").

[20] Comment Letter from Society for Corporate Governance (formerly Society of Corporate Secretaries & Governance Professionals) at 8, Sept. 18, 2015, https://www.sec.gov/comments/s7-12-15/s71215-60.pdf (hereinafter "SCG 2015"); see also Comment Letter from ABA 2016 at 48 n.91.

[21] See, e.g., Jesse M. Fried & Nitzan Shilon, Excess-Pay Clawbacks, 36 Iowa J. Corp. L. 721, 749 n.120 ("[T]here could of course be a carveout for 'de minimis' amounts of excess pay. We see no real cost to such a carveout. Refraining from clawing back small amounts of excess pay will not substantially affect shareholders' returns nor meaningfully reduce the deterrent effect of the clawback. At the same time, such a carveout will confer a benefit on shareholders by avoiding the transaction costs associated with effecting a clawback.").

[22] See 17 CFR § 229.601(b)(97) and 17 CFR § 229.402(w)(4).

[23] 17 CFR § 229.402(w)(1)(i)(B).

[24] Id.

[25] 17 CFR § 229.402(w)(1)(i)(C).

[26] See Instruction 5 to 17 § CFR 229.402(c), and Instruction 5 to 17 § CFR 229.402(n).

[27] 17 CFR § 229.402(w)(1)(i)(D).

[28] 17 CFR § 229.402(w)(1)(ii).

[29] Many commenters raised concerns about the disclosures and suggested alternate approaches. See, e.g., Comment Letters from ABA 2016 at 5-6, 62 (recommending website disclosure); Davis Polk 2021 at 5 (suggesting that disclosure of the methodology for calculating the recoverable amounts would be burdensome, lack comparability, and involve litigation risk); SCG 2021 at 4 (suggesting that the disclosure could be confusing and would add legal, audit, compensation consulting, and other expenses); Business Roundtable at 3, Sept. 15, 2015, https://www.sec.gov/comments/s7-12-15/s71215-42.pdf (raising safety concerns associated with disclosing names); Compensation Advisory Partners LLC at 2, Sept. 10, 2015, https://www.sec.gov/comments/s7-12-15/s71215.htm (expressing reputational concerns); Mercer at 11, Sept. 14, 2015, https://www.sec.gov/comments/s7-12-15/s71215-10.pdf (suggesting that, instead of public disclosure, exchanges could require individualized information as needed) (hereinafter "Mercer"); Sullivan & Cromwell LLP at 7, Sept. 22, 2015, https://www.sec.gov/comments/s7-12-15/s71215-63.pdf (suggesting that the specific identity of an executive will in most cases not be material to the evaluation of the boards' determination not to pursue recovery); UBS Group AG at 5, Sept. 14, 2015, https://www.sec.gov/comments/s7-12-15/s71215-51.pdf (suggesting that naming individuals from whom the issuer determines not to recover is irrelevant and provides no benefit to shareholders); McGuireWoods at 12 (recommending generalizing compensation recovery disclosure); Exxon Mobil Corporation at 4, Sept. 14, 2015, https://www.sec.gov/comments/s7-12-15/s71215-22.pdf (expressing concern that disclosure of individuals' names could conflict with local data privacy laws); Japanese Bankers Association at 8, Sept. 14, 2015, https://www.sec.gov/comments/s7-12-15/s71215-17.pdf (expressing concern that proposed disclosures could conflict with Japanese data privacy laws).

[30] Comment Letter from SCG 2021 at 6.

[31] The process of revising existing clawback policies and renegotiating contracts with executive officers is likely to be expensive. See, e.g., Comment Letters from Keith Paul Bishop at 6, Sept. 13, 2015, https://www.sec.gov/comments/s7-12-15/s71215-24.pdf (indicating that issuers will face significant costs and litigation risk as policies are re-written); SCG 2015 at 16 (indicating that current recovery plans prevent or restrict amendments unless approved by the participant affected by the amendment, and that it is unlikely that someone no longer working for the issuer will agree to an amendment that results in costs to herself).

[32] Comment Letter from McGuireWoods at 22; see also Comment Letter from SCG 2015 at 9 ("[W]e do not believe it will always be necessary for a reasonable attempt to be made in order for the compensation committee to determine that recovery is 'impracticable.' For example, consider when the amount to be recovered is de minimis in amount. Because there is no de minimis exception or threshold to the recovery amount, issuers are expected to recover any amount of excess compensation in connection with every accounting restatement, no matter how small. In such cases, we believe the compensation committee may very well determine that the recovery is 'impracticable' and not in the best interests of the issuer or its stockholders without first having to seek recovery to make that determination.").

[33] 17 CFR § 240.10D-1(d).

[34] Fried at 49.

[35] One study of restatements from 2003 through 2012 found that "restatements at over 4,000 companies caused only an average 1.5% decline in stock price and a median decline of 0.01%." Comment Letter from Mercer at 6 (citing a study of restatements by the Center for Audit Quality - Financial Restatement Trends in the United States: 2003-2012). According to one commenter, conducting an event study to determine what TSR would have been absent a restatement could cost an estimated $100,000 to $200,000. Comment Letter from Davis Polk & Wardwell LLP at 2, Sept. 11, 2015, https://www.sec.gov/comments/s7-12-15/s71215-14.pdf. Litigation risk may lead companies to conduct these studies despite the rule's allowance for a "reasonable estimate" of TSR. See, e.g., Comment Letter from Pearl Meyer at 3, Sept. 15, 2015, https://www.sec.gov/comments/s7-12-15/s71215-47.pdf ("Arriving at this reasonable estimate will necessitate extensive research, testing, and expense to understand how stock price and TSR would have been impacted by a restatement, and there are countless assumptions that go into the 'but for' price of the stock. . . . If adopted as is, the Proposal will be a windfall for the plaintiffs' bar as any "reasonable estimate" will be fair game for challenge, and executive officers will also likely dispute these estimates if subject to a clawback.); see also Comment Letter from McGuireWoods at 17-18 (Under a "reasonable estimate" standard, "an issuer will still be faced with the complexity of doing an event study if selected as the methodology utilized, or will be faced with the complexity of selecting and developing another method. In our view, the subjectivity, difficulty, and costs associated with the development of reasonable estimates on which to determine the impact of a restatement on stock price or TSR to calculate excess executive compensation subjects issuers to an undue burden . . . .").

[36] 17 CFR § 240.10D-1(b)(1)(ii)(A).

[37] Adopting Release at 45.

[38] 17 CFR § 240.10D-1(b)(1).

[39] See, e.g., Exxon at 2 ("Money is fungible. As a practical matter . . . it is easier to cancel or retain amounts that remain within the control of the company than to recover amounts already paid out to an executive. In the absence of recovery via set-off, if the executive resists recovery, litigation to recover compensation already paid can be costly and time consuming. If the Commission is concerned about the time value of money for certain recovery practices, the Commission could have required that interest costs must be taken into account for any recovery.").
Today, the Commission is voting on a recommendation to adopt rules implementing Section 954 of the Dodd-Frank Act ("Section 954") by directing the exchanges to establish listing standards for the recovery of compensation erroneously awarded to management, generally referred to as "clawbacks."[1] I have several objections to how the Commission is implementing Section 954.

Outsourcing the Commission's Economic Analysis Responsibilities

It has been well established that the Commission undertakes an economic analysis of its proposed rules and subjects that analysis to public comment. Yet, the Commission did not do so for this proposal. Instead, the Commission conducted an economic analysis of the proposal and the factual data as it existed in 2015, not 2022.

Rather than re-proposing the 2015 rules with updated data and analysis,[2] the Commission took a procedural shortcut and simply re-opened the comment period.[3] The reopening notice recognized that "important developments" related to clawbacks had occurred since 2015.[4] But rather than providing a new economic analysis, the Commission raised questions as to whether there "[a]re . . . any other developments . . . that should affect our consideration of the Proposed Rules or their potential economic effects [and] are there any changes we should consider in the methodologies and estimates used to analyze the economic effects. . ."[5] In effect, the Commission outsourced its responsibility to conduct an appropriate economic analysis to commenters - and then it only gave them 30 days to do so.

A lot has changed since 2015 - arguably, a full business cycle has passed since that time.[6] As such, the Commission should have undertaken new economic analysis of costs and benefits. The publication in June 2022 of a supplemental memo providing some economic data falls short of the breadth of the analysis contained in the 2015 proposal.[7]

"It's Déjà Vu all Over Again."[8]

Like other recent rulemakings, the comment period for 2021 and 2022 reopening notices was 30 days. I have expressed my objections to these shortened comment periods elsewhere.[9] These shortened comment periods significantly weaken a cornerstone of effective rulemaking: feedback from investors, issuers, and intermediaries to provide us with their expertise. This process improves our ability to make informed decisions.

Compliance Burdens Have Been Updated

I am pleased, however, that today's recommendation is using an updated cost burden calculation.[10] Prior estimates likely dramatically understated the compliance burdens when the Commission estimated that legal professionals would have an average cost of $400 per hour.[11] Today, the Commission has revised that number to $600 per hour-a 50% increase, to reflect an inflation adjustment. It is important that our estimates are up-to-date so that costs are properly evaluated, both on an individual and cumulative basis. The prior $400 estimate was used for about 16 years.[12] I hope that moving forward, these estimates will be revised regularly to reflect current compliance costs.

The Commission's Final Rules Are Overly Broad

Today's recommendation also includes a new interpretation that Section 954, which covers "an accounting restatement due to the material noncompliance . . .with any financial reporting requirement," should include "little r" restatements.[13] The inclusion of "little r" restatements represents a dramatic shift in the Commission's interpretation of Section 954.[14] The 2015 proposal contained not a single reference to the term "little r" and minimal discussion of related terms.[15] The Commission's first signal that the rules would capture "little r" restatements came nearly eleven years after the passage of the Dodd-Frank Act, and six years after the 2015 proposal.[16] The adopting release we are voting on today, contains 65 references to "little r" restatements.

Today's release cites an Audit Analytics restatement study.[17] An accompanying release for the study provides background on "little r" restatements, noting that: " 'little r' restatements, deal with immaterial misstatements, or adjustments made in the normal course of business . . . [b]ecause revision restatements are less severe, they are not generally viewed as a sign of poor reporting."[18] By broadening the scope of the 2015 proposal to include "little r" restatements, the final rules appear to conflict with the statutory directive and even some of the underlying data.

Moreover, brand new checkbox disclosure on Form 10-K has been included with respect to "little r restatements," irrespective of whether it is connected to a clawback or executive compensation payment issue.[19] While concerns about the use of "little r" restatements may be a topic worthy of addressing, including this checkbox disclosure extends far beyond the scope of the Section 954 rulemaking.

In addition, the final definition of the term "executive officer" appears overly broad. Congress indicated that the clawbacks should apply to "executive officers, a very limited number of employees."[20] Yet the rules adopted today may capture persons beyond the narrow scope contemplated by Congress. Commenters have raised related concerns regarding the scope of this definition, but the final rules appear to brush these concerns aside.[21]

Unintended Regulatory Consequences

Ultimately, the final rules may increase misalignments between the interests of shareholders and corporate executives. My predecessors raised concerns related to the Dodd-Frank Act's executive compensation provisions,[22] and noted that under Section 954, "compensation arrangements [might] be restructured so that executives end up receiving less incentive pay that could be clawed back but larger discretionary bonuses ..."[23] This may result in salary increases, rather than compensation mechanisms tied to financial reporting measures. The broad approach the Commission takes may ultimately weaken alignment of interests between shareholders and management.[24] According to some media reports, parallel trends may already be occurring as corporations remove performance goals and replace options with shares.[25]

Therefore, I am unable to support the recommendation today. I thank, however, the staff in the Divisions of Corporation Finance, Economic and Risk Analysis, Trading and Markets, and the Offices of the General Counsel and the Chief Accountant, for their work and for their willingness to engage, particularly Steve Hearne, Jessica Barberich, Luna Bloom, Chyhe Becker, and Al Sheen. I also want to acknowledge the comprehensive summary of the public comments received, including a 117-page summary for the original 2015 proposal and a 26-page summary on the 2021 re-opening of the comment period.

[1] Pub. L. No. 111-203, Sec. 953(a), 124 Stat. 1841 (2010).

[2] Listing Standards for Recovery of Erroneously Awarded Compensation, Release No. 34-75342 (Jul. 1, 2015) [80 FR 41144 (Jul. 14, 2015)] (the "2015 Proposal") available at https://www.sec.gov/rules/proposed/2015/33-9861.pdf.

[3] Reopening of Comment Period for Listing Standards for Recovery of Erroneously Awarded Compensation, Release No. 34-93311 (Oct. 14, 2021) (the "2021 Reopening Notice") available at https://www.sec.gov/rules/proposed/2021/33-10998.pdf; Reopening of Comment Period for Listing Standards for Recovery of Erroneously Awarded Compensation, Release No. 34-95057 (June 8, 2022)(the "2022 Reopening Notice") available at https://www.sec.gov/rules/proposed/2022/33-11071.pdf.

[4] 2021 Reopening Notice at 6.

[5] Id. at 19.

[6] Approximately six and a half years passed between the time of the 2015 Proposal and the 2022 Reopening Notice, which represents under many measures a full business cycle. Refer to the business cycle troughs and peaks for the period between June 1857 and February 2022, available at https://www.nber.org/research/data/us-business-cycle-expansions-and-contractions.

[7] For context, the Economic Analysis and Paperwork Reduction Act analysis in the 2015 Proposing release represented nearly 60 pages of impact analysis, whereas the memorandum from the Division of Economic and Risk Analysis (DERA) was 9 pages long. Memorandum supplemental data and analysis on the voluntary adoption of compensation recovery provisions by issuers and the impact of including "little r" restatements as triggers for a compensation recovery analysis (June 8, 2022) available at https://www.sec.gov/comments/s7-12-15/s71215-20130560-298718.pdf.

[8] For a selection of quotes from Yogi Berra in the context of a discussion on clawbacks, see Dissenting Statement at an Open Meeting on Dodd-Frank Act "Clawback" Provision, Commissioner Michael S. Piwowar (July 1, 2015) available at https://www.sec.gov/news/statement/dissenting-statement-open-meeting-clawbacks-erroneously.

[9] Remarks at the APABA-DC Awards and Installation Reception, Commissioner Mark T. Uyeda (Oct. 19, 2022) available at https://www.sec.gov/news/speech/uyeda-apaba-dc-20221019.

[10] Listing Standards for Recovery of Erroneously Awarded Compensation, Release No. 33-11126 (Oct. 26, 2022), available at https://www.sec.gov/rules/final/2022/33-11126.pdf.

[11] See e.g., Reopening of Comment Period for Pay Versus Performance, Release No. 34-94074 (Jan. 27, 2022) [87 FR 5751 (Feb. 2, 2022)], available at https://www.sec.gov/rules/proposed/2022/34-94074.pdf.

[12] See Executive Compensation and Related Person Disclosure, Release No. 33-8732A (Aug. 29, 2006) [71 FR 53158, 53214 n. 574)] ("We recently have increased this hourly rate estimate to $400.00 per hour after consulting with several private law firms").

[13] Listing Standards for Recovery of Erroneously Awarded Compensation at 34.

[14] See 2015 Proposal. See also generally, Highlights of the Dialogue with the Director of the SEC's Division of Corporation Finance, Meeting of the Federal Regulation of Securities Committee of the ABA Business Law Section, as part of that Section's Annual Meeting in Chicago, Illinois (Sept. 18, 2015), written summary available at https://www.weil.com/~/media/files/pdfs/highlights-of-the-dialogue-with-the-director-of-the-sec.pdf, noting that The Division of Corporation Finance Director Keith F. Higgins "confirmed that the [2015] proposal extends only to so-called "Big R" restatements, meaning restatements to correct material errors in the financial statements. There is no intention here to create new restatement definitions that deviate from GAAP concepts associated with restatement under ASC 250."

[15] 2015 Proposal at note 262, referencing a study discussing "non-4.02 restatements."

[16] See 2021 Reopening Notice; 2022 Reopening Notice.

[17] Audit Analytics, 2020 Financial Restatements (A Twenty Year Review), (Nov. 2021) available at https://www.auditanalytics.com/doc/2020_Financial_Restatements_A_Twenty-Year_Review.pdf.

[18] Audit Analytics 2020 Financial Restatements Review, (Dec. 7, 2021) available at https://blog.auditanalytics.com/2020-financial-restatements-review/.

[19] Listing Standards for Recovery of Erroneously Awarded Compensation at 117.

[20] Report of the Senate Committee on Banking, Housing, and Urban Affairs, S.3217, Report No. 111-176 at 136 (Apr. 30, 2010).

[21] See e.g., Letter from David Lynn, Chair, American Bar Association Committee on Federal Regulation of Securities of the Section of Business Law (Feb. 11, 2016) available at https://www.sec.gov/comments/s7-12-15/s71215-67.pdf.

[22] Remarks at the 26th Annual Corporate Law Institute, Tulane University Law School: Federal Preemption of State Corporate Governance, Commissioner Daniel M. Gallagher, (Mar. 27, 2014) available at https://www.sec.gov/news/speech/2014-spch032714dmg.html.

[23] Remarks at Society of Corporate Secretaries & Governance Professionals, 66th National Conference on "The Shape of Things to Come." Commissioner Troy A. Paredes, (July 13, 2012), available at https://www.sec.gov/news/speech/2012-spch071312taphtm.

[24] See remarks from The Division of Economic and Risk Analysis Director Mark J. Flannery at the Open Commission Meeting of July 1, 2015, available at https://www.youtube.com/watch?v=oMCsrByH6t0 at 16:00, noting that under the 2015 Proposal "[. . .] the interest of the executives could therefore diverge from those of the shareholders."

[25] See Patrick Temple-West, US Companies Rework Bonus Plans to Protect Executive Pay, Financial Times (Oct. 22, 2022), available at https://www.ft.com/content/6aa4ab2d-fc4d-454f-b365-e8c07f8ba0ef.
The Securities and Exchange Commission today proposed a new rule and rule amendments under the Investment Advisers Act of 1940 to prohibit registered investment advisers from outsourcing certain services and functions without conducting due diligence and monitoring of the service providers.

"Registered investment advisers - more than 15,000 of them in total - play a critical role in our economy, advising more than 60 million accounts with combined assets under management of over $100 trillion," said SEC Chair Gary Gensler. "Though investment advisers have used third-party service providers for decades, their increasing use has led staff to make several recommendations to ensure advisers that use them continue to meet their obligations to the investing public. When an investment adviser outsources work to third parties, it may lower the adviser's costs, but it does not change an adviser's core obligations to its clients. Thus, today's proposal specifies requirements for investment advisers designed to ensure that advisers' outsourcing is consistent with their obligations to clients."

As demand for the asset management industry has grown and clients' needs have become more complex, many advisers have engaged third-party service providers to perform certain functions or services, many of which are necessary for an adviser to provide its advisory services in compliance with the Federal securities laws. These functions can include providing investment guidelines, portfolio management, models related to investment advice, indexes, or trading services or software. Outsourcing can benefit advisers and their clients, but clients could be significantly harmed when an adviser outsources a function or service without appropriate adviser oversight.

The proposal would require advisers to satisfy specific due diligence elements before retaining a service provider that will perform certain advisory services or functions, and to subsequently carry out periodic monitoring of the service provider's performance. The rule would apply to advisers that outsource certain "covered functions," which include those services or functions that are necessary for providing advisory services in compliance with the Federal securities laws and that if not performed or performed negligently would result in material negative impact to clients.

Additionally, the proposal would require advisers to conduct due diligence and monitoring for all third-party recordkeepers and obtain reasonable assurances that the recordkeepers will meet certain standards. Finally, the proposal would require advisers to maintain books and records related to the new rule's oversight obligations and to report census-type information about the service providers covered under the rule.

The proposal was published today on SEC.gov and will be published in the Federal Register. The public comment period will remain open for 60 days after the date of issuance and publication on SEC.gov or 30 days after the date of publication in the Federal Register, whichever period is longer.


https://www.sec.gov/news/statement/crenshaw-statement-service-providers-oversight-102622

I am happy to support today's proposed rule, which would establish certain minimum standards to which an adviser must adhere when they outsource core advisory duties to third parties. Outsourcing, a trend which appears to cross a variety of services and functions in the asset management space,[1] can introduce efficiencies in an adviser's ability to carry out its functions. For example, service providers may give the adviser or its clients access to certain specializations that the adviser otherwise does not have in-house. Outsourcing may also have associated cost savings that can be passed along to investors.

But, when an adviser outsources certain functions, it can also open investors up to key vulnerabilities - vulnerabilities about which an investor may not even be aware.

There is, of course, risk of investor harm. Outsourcing to third party providers - who may not be subject to the duties imposed by the Advisers Act or U.S. securities laws (or any U.S. laws in the case of certain off-shore providers) - carries concomitant risk that sensitive investor information could be misused or lost; compliance gaps might enable fraudulent advisory activities; or, vendors could front-run investor opportunities, just to name a few. Along with state securities regulators, we have brought some key enforcement actions where inadequate oversight of third party providers has led to investor harm.[2]

In addition to the potentially heightened risk of investor harm, the use of a service provider can more generally reduce an adviser's control of, or visibility into, the performance of core advisory functions.[3] It can lead to conflicts of interest, where the adviser's goals in outsourcing certain functions and of reaping cost-savings may not be aligned with investor expectations about the advisory services being performed or the oversight of those services, among other potential conflicts of interest.[4] The potential misalignment between the expectations of clients and advisers, coupled with the lack of transparency, can lead to further moral hazard problems.[5]

Further, if an adviser is dependent on a service provider for a number of services, any disruption in the relationship could have widespread effects on the advisory services provided.[6] Or, if a third party provider is servicing wide swaths of the asset management industry, disruption could have systemic effects.[7]

These are just to name a few of the risks that may accompany outsourcing of key advisory functions. And, all of these risks may be exacerbated when the services being rendered are fundamental to the advice being provided, as is more and more often the case today - for example where an adviser subcontracts out portfolio management services to a sub-adviser, or where an index provider creates a bespoke index for a portfolio of assets.[8]

When an adviser outsources a core function, that adviser does not check its fiduciary duties at the door. In no uncertain terms, the onus is on the investment adviser to ensure that its obligations under the securities laws are fulfilled, even for those functions that it may outsource.

Further, it is a fair expectation of the reasonable investor that, where an investment adviser outsources functions necessary to the performance of its advisory services, there will be effective oversight over those services. As we say in the release, a lack of effective oversight under such circumstances "would be misleading, deceptive, and contrary to the public interest."[9]

These are the issues that we address today. Where an adviser outsources certain covered functions necessary for its provision of investment advisory services in compliance with the securities laws, it must: perform crucial due diligence to reach the conclusion that outsourcing this function, to this service provider, is appropriate; engage in ongoing monitoring and oversight of the service provider's performance; ensure that books and records attendant to the services are adequately maintained and available for inspection; and, disclose certain information on its Form ADV related to these service providers.

These requirements would go a long way to protecting investors and mitigating the risks attendant to these core outsourced relationships. I am looking forward to reviewing comment letters on this subject - and here are some things that I would ask commenters to consider:

Today we are not requiring that advisers who outsource core functions have agreements in writing with their service providers. Is that in line with investor expectations?
Additionally, should there be further disclosures relating to outsourcing, beyond the census-type data we propose to be listed in the Form ADV? For example, should we require additional, more specific disclosure of fees or expenses? And, do investors currently have adequate insight into the conflicts of interest that may be presented by the service provider relationships and services? What are investors' expectations in these regards?
As always, I want to thank the staff. You have been busy and it has not gone unnoticed. And, although you have been immersed in a number of rulemaking efforts, there has been no sacrifice in the quality of your work product or the insightful nature of your advice and comments. Many thanks to the teams from the Division of Investment Management, the Division of Economic and Risk Analysis, the Office of the General Counsel, and the staff in the Chair's Office.

[1] See Outsourcing by Investment Advisers, Release No. IA-6176 ("Proposing Release") at Section III.B.2 ("Reasons for use of Service Providers"), 105-106.

[2] See, e.g., Morgan Stanley Smith Barney LLC, Investment Advisers Act Release No. 6138 (Sept. 20, 2022). See generally In the Matter of Aegon USA Investment Management, LLC, et al, IA Release No. 4996 (Aug. 27, 2018); Maria Armental, BNY Mellon to Pay $3 Million to Resolve Massachusetts Probe Over Glitch, The Wall Street Journal (Mar. 21, 2016); In the Matter of Aegis Capital, LLC, Investment Advisers Release No. 4054 (Mar. 30, 2015).

[3] Proposing Release at 107; see generally id. at Section III.B.2 ("Risks Associated with use of Service Providers").

[4] Id. at 9, 107-109.

[5] Id. at 110-111 and nn. 116-117 ( "When an agent's actions cannot be observed or directly contracted for by the principal, it is difficult to induce agents to supply the proper amounts of productive inputs or appropriately share risk with the principal.")

[6] Id. at 109.

[7] Id. at 10-11, 109-110; see also The Monolith and the Markets, The Economist (Dec. 7, 2013), available at https://www.economist.com/briefing/2013/12/07/the-monolith-and-the-markets

[8] Proposing Release at 7.

[9] Id. at 14.

https://www.sec.gov/news/statement/lizarraga-statement-service-providers-oversight-102622

Today, the Commission is proposing a set of key reforms that would bring accountability and enhanced investor protections when an investment adviser outsources its activities. I am pleased to support today's proposal.

As of this month, there are over 15,000 advisers registered with the Commission. By one estimate, over the last twenty years we've seen more than a six fold increase in the amount of assets managed by SEC-registered advisers.

The growth in numbers and assets under management has been accompanied by a changing technological landscape. Certain firms are providing investment advice solely through digital platforms. Firms are increasingly communicating and connecting with their clients through social media. Other firms are using analytical tools to develop their investment advice. Technological advancements have also been fueled by the need for increased efficiencies to meet investor demand, whether organically or through exigent and long-lasting events, such as the COVID-19 pandemic. 

As advisers adapt and change the way they operate, and as a result outsource more and more of the functions necessary for their advisory services, there can be significant implications for investor protection.

Heightened risks for investors can arise when many advisers use the same service provider for multiple services, when there's mismanagement of outsourced functions, or when there are gaps in outsourced compliance functions.

Poor oversight over outsourced functions also can be harmful to investors - many of whom entrust their life savings with their advisers and may be unaware that certain functions are outsourced.

Regardless of whether an adviser outsources certain of its functions, it must act in the best interests of its client at all times. An adviser's legal obligations under the Federal securities laws do not change when the adviser outsources. Effective, continuous oversight over outsourced functions is critical to ensuring an adviser's legal obligations continue to be met.

Outsourcing could also pose significant systemic risks, particularly if a widely-used provider of a specialized function fails to perform. It's important that advisers evaluate how dependent they are on a particular service provider and the impacts on the adviser and clients in the case of service disruptions. Today's proposal would provide minimum requirements for ongoing due diligence and monitoring of those providers.

The proposal also provides for the collection of census-like data on advisers' service providers, including the location of the office principally responsible for the covered functions. In reviewing this proposal, it became clear to me that there's a significant lack of visibility in this area, which could limit our ability to assess systemic risks or potential threats to financial stability.

The data-gathering component of the proposal would improve our ability to identify concentration of service providers in specific regions for certain functions, domestically and abroad. As regulators, we need to remain vigilant when we observe significant and widespread use of one or a small number of service providers for critical and specialized services and to have a clear picture of where these activities are occurring.

Again, I am pleased to support this proposal and appreciate the work of the Commission staff, and particularly staff in the Division of Investment Management, in crafting it.

Thank you.
Thank you Chair Gensler. Investment advisers are fiduciaries to their clients, so why are we giving them step-by-step instructions on how to do their jobs? If we think Congress got it wrong-that investment advisers cannot, absent regulatory handholding, serve their clients faithfully-then we should tell Congress. The approach we are taking-incrementally displacing their judgment with our own-is neither statutorily grounded nor protective of investors. I could have supported Commission guidance highlighting the importance of an adviser's ongoing obligations to its clients when it has engaged a service provider. I cannot support repackaging existing fiduciary obligations into a new set of prescriptions for investment advisers.

Proposed rule 206(4)-11, among other things, would establish due diligence and monitoring obligations for advisers that outsource "covered functions" to a service provider. What precisely is the problem this proposal is trying to correct? The release tells us that some advisers are operating under the misimpression that outsourcing certain functions somehow absolves them of their responsibilities as fiduciaries with respect to those functions.

Why this sudden urgency to propose a rulemaking reconfirming the incontrovertible fact that outsourcing does not terminate an adviser's fiduciary duty? Has there been a surge of enforcement actions against advisers for service provider-related failures or infractions? Are our examiners seeing advisers running from their fiduciary obligations with respect to outsourced functions? Are we aware of widespread investor harm due to advisers not overseeing their service providers? If the answer to any of these questions is yes, the release does not tell us so.

The actual number of advisers who think that they are off the hook when it comes to outsourced services likely is negligible and, even if it is not, we do not need new rules to hold them to account. As the Commission states quite clearly in this release, "[a]n adviser remains liable for its obligations, including under the Advisers Act, the other Federal securities laws and any contract entered into with the client, even if the adviser outsources functions."[1] SEC compliance staff has made many similar public pronouncements. In 2009 for instance, exams staff reminded industry that "when a service provider is utilized, the adviser still retains its fiduciary responsibilities for the delegated services."[2] The fiduciary duty that attaches to an adviser is intrinsic to the role. While the scope of that duty will be interpreted within the context of the agreed-upon relationship with the client, the adviser cannot wish it away by deciding to contract out services to a third party.

Reducing the fiduciary duty to a set of prescriptions could undermine investor protection. Standing alone, the fiduciary duty requires one to act in the client's best interest at all times. If the rule intends to define what constitutes the client's best interest, the definition quite naturally will lead to exclusion of other alternatives. The rule thus may end up abrogating fiduciary duty and replacing it with our predefined approach to best interest-one not responsive to unique facts and circumstances.

Even were I in favor of specific requirements regarding outsourcing, I would have concerns about promulgating them under section 206(4) of the Investment Adviser Act, which makes it unlawful "to engage in any act, practice, or course of business which is fraudulent, deceptive, or manipulative." Section 206(4) authorizes the Commission to "define, and prescribe means reasonably designed to prevent, such acts, practices, and courses of business as are fraudulent, deceptive, or manipulative." While the release states that it is being adopted as a "means reasonably designed to prevent fraudulent, deceptive, or manipulative acts, practices, or courses of business," the release also seems to suggest that departing from the proposed requirements would itself be deceptive.[3] An adviser need not engage in a fraudulent, deceptive, or manipulative act, practice, or course of business to fall afoul of the rule, but any resulting enforcement charges likely will include section 206(4), which could lead people to believe that the adviser has engaged in much more nefarious conduct. This proposal is not the first to take such an approach, but I hope commenters nevertheless think about the collateral consequences advisers will face if their due diligence or monitoring is deemed inadequate and thus unlawful under section 206(4). Would adopting this type of rule under section 206(4) serve to confuse investors given that more serious conduct also could be charged under that section?

Another concern that gets only passing mention is the likely effect these changes would have on smaller advisers.[4] Small advisers are already stretched, and their compliance resources are limited. Adding another regulatory checklist to the compliance officer's clipboard will only make it harder for small firms to hire high-quality compliance personnel. Costs charged by service providers who will indirectly be subject to the rule's requirements will inevitably go up. Small advisers will have little leverage in negotiating contracts with service providers.

Some advisers may determine that they can no longer afford to engage service providers and will be forced to bring contracted services back in-house. Advisers contract out services for a variety of reasons, including to benefit from cost efficiencies and to secure for investors superior service. Forcing strapped smaller advisers to DIY functions perhaps better performed by third parties is a recipe for investor harm, not investor protection. Other small advisers may consolidate in pursuit of economies of scale. With each new regulatory burden, we make it harder for small advisers to compete. If we insist on pursuing this regulatory initiative, we should carve out smaller advisers.

Because prescriptive regulations like this one inevitably favor big firms and incumbents, small service providers will face disproportionate competitive challenges. Larger service providers-especially those that offer multiple services-will have a distinct advantage over their smaller competitors who may not be able to provide "one stop shopping." Advisers will face less risk of second-guessing by the Commission if they pick service providers that everybody else is using. Tilting the regulatory field in favor of large providers raises barriers to entry and limits the opportunities for enterprising new firms trying to break into the business.

Although I cannot support today's proposal, I am no less grateful for the work, unflagging professionalism, and dedication of the Commission staff, including especially in the Divisions of Investment Management and Economic and Risk Analysis and Office of General Counsel. Even when, as here, I am not enthusiastic about the substance, I enjoy the process of engaging with you. I look forward to hearing what the commenting public has to say about this proposal, if they can find the time, in between commenting on the multitude of other Commission proposals, to share their wisdom.

[1] Proposing Release at 13.

[2] See The Evolving Compliance Environment: Examination Focus Areas, 2009 CCOutreach Regional Seminars (Apr. 2009), at 9, http://www.sec.gov/info/iaiccco/iaiccco-focusareas.pdf. See also SEC Division of Examinations 2022 Examination Priorities ("EXAMS will review [adviser] compliance programs to examine whether they address that . . . oversight of service providers is adequate. . . .") at 17, https://www.sec.gov/files/2022-exam-priorities.pdf.

[3] Compare the following passages from the proposing release:

We also believe it is a deceptive sales practice and contrary to the public interest and investor protection for an investment adviser to hold itself out as an investment adviser, but then outsource its functions that are necessary to its provision of advisory services to its clients without taking appropriate steps to ensure that the clients will be provided with the same protections that the adviser must provide under its fiduciary duty and other obligations under the Federal securities laws. We believe a reasonable investor hiring an adviser to provide investment advisory services would expect the adviser to provide those services and, if significant aspects of those services are outsourced to a provider, to oversee those outsourced functions effectively. To do otherwise would be misleading, deceptive, and contrary to the public interest.

. . .

Under proposed rule 206(4)-11, as a means reasonably designed to prevent fraudulent, deceptive, or manipulative acts, practices, or courses of business within the meaning of section 206(4) of the Act, it would be unlawful for an investment adviser registered or required to be registered with the Commission to retain a service provider to perform a covered function unless the investment adviser conducts certain due diligence and monitoring of the service provider.

Proposing Release at 14 and 19 (footnote omitted).

[4] See Proposing Release at 164 ("As an initial matter, the proposed rule would create new costs of providing advisory services, which could disproportionately impact small or newly emerging advisers who may be less able to absorb or pass on these new costs. New costs, especially fixed costs, could also disproportionately impact small or newly emerging advisers.").

https://www.sec.gov/news/statement/uyeda-statement-service-providers-oversight-102622

Thank you, Chair Gensler. Under the Investment Advisers Act of 1940 ("Advisers Act"), an investment adviser owes a fiduciary duty to its clients.[1] The proposing release indicates that, because an adviser cannot waive its fiduciary duty, the "adviser should be overseeing outsourced functions to ensure the adviser's legal obligations are continuing to be met despite the adviser not performing those functions itself."[2] Thus, today's proposal introduces a brand new regulatory regime that prescribes the specific manner in which an investment adviser must oversee its service providers.

Less clear, however, is whether: (1) there is widespread misunderstanding among investment advisers regarding the application of their fiduciary duties to outsourced functions, and (2) there is any observable problem related to investment advisers' oversight of service providers that necessitates the blanket imposition of specified oversight requirements.

The proposed rule imposes oversight requirements with respect to the outsourcing of "a function or service that is necessary for the investment adviser to provide its investment advisory services in compliance with the Federal securities laws."[3] According to the proposal, this formulation is "designed to apply in the context of outsourcing core advisory functions."[4] Tellingly, the observations cited in the proposing release as a basis for proposing this rule do not appear to describe service provider failures that would have been prevented had the rule been in effect.

For example, the release cites an article describing problems encountered by a mutual fund service provider when it temporarily was unable to calculate net asset values ("NAVs") on approximately 1,200 mutual funds in 2016.[5] However, there is no discussion of whether and to what extent the mutual funds' investment advisers conducted oversight of the service provider in accordance with their existing obligations, and whether the specified oversight requirements contemplated by the proposed rule would have prevented or mitigated the problem.[6]

The proposing release also cites an enforcement action against investment advisers that used models and volatility guidelines from a third-party subadviser without first confirming that they worked as intended.[7] The settlement order details numerous violations, including failure to verify the proper functioning of the model, misleading disclosure to clients, and misrepresentations to the mutual fund boards that were tasked with overseeing certain of the investment products.[8] In this case, the adviser ignored several existing legal obligations and there is no explanation as to how the overlay of a prescriptive service provider rule would have altered the adviser's conduct.

The release then discusses two service provider matters that do not appear to involve core advisory functions, including one matter that involves a breach of customer data that resulted from an investment adviser's hiring of a moving and storage company.[9] However, the matters appear to be included because the proposal would extend the requirement to conduct service provider oversight to third parties that make and/or keep any books and records required to be kept by Rule 204-2 under the Advisers Act.[10] Again, the proposing release is silent as to whether these service provider issues resulted from a failure of proper oversight and how the proposed rule would prevent or mitigate the perceived problems.

Substantively, the proposed rule text is problematic because it creates significant interpretive challenges. The proposing release states that the rule is intended to relate only to core advisory functions, but the definition of a "Covered Function" is a function or service that "is necessary for the investment adviser to provide its investment advisory services in compliance with the Federal securities laws." Many functions or services that do not relate to an adviser's investment advisory function nonetheless are necessary for the adviser to provide its investment advisory services in compliance with the federal securities laws.[11] Therefore, under a technical reading of the proposed definition of "Covered Function," almost any function outsourced by an investment adviser could trigger the numerous oversight functions set forth in the proposed rule.[12] What is a chief compliance officer to do? An already burdensome regulatory regime is made ever more burdensome when the functions that trigger the rule's requirements are not clearly spelled out.

To add to the confusion, although the Commission has stated that an adviser's fiduciary duty extends to voting proxies on behalf of its clients,[13] there is not one mention in the proposing release of the use of proxy voting advisory firms by investment advisers. The outsourcing of proxy voting advice presumably would be a "Covered Function" under the rule. However, when the release requests comment on whether various types of specified services or services providers should be identified in the final rule text, proxy voting advisory businesses are noticeably absent.[14] Coupled with the implication that seemingly non-advisory functions - such as moving and storage - may be subject to the requirements of the rule, the glaring absence of any reference to a commonly outsourced advisory function in the proposing release raises additional questions about how the rule would be applied.

Finally, the economic analysis fails to account for the substantial burden that would likely be placed on smaller advisers. While the release discusses potential differences in costs that complying with the rule would impose on larger advisers as compared to smaller advisers, the release fails to consider other outcomes that might further disproportionately impact smaller advisers. One possibility is that the burdensome nature of the service provider oversight requirements could cause certain service providers to cease doing business with smaller advisers altogether.

The lack of attention to the impact of this rule on smaller advisers is further evidenced by the absence of a staggered compliance date. At a minimum, any new rule imposing significant new compliance burdens on investment advisers should afford smaller advisers a longer time period to come into compliance with the rule. I had similar concerns with respect to the lack of a staggered compliance date in the recently-adopted broker-dealer recordkeeping rule.[15] I strongly encourage commenters to consider whether smaller advisers will be disproportionately affected by this proposed rule and - if so - include in comment letters ideas as to what the dividing line should be between smaller advisers and larger advisers for purposes of implementing a staggered compliance date in any future final rule.

There may be a role for enhanced procedures for oversight of specified functions performed by third parties for investment advisers, but the breadth of this proposal goes too far. It also seems premature when the Commission has yet to identify a path forward on index providers.[16] Perhaps the best role of this proposal is to serve somewhat akin to a concept release on what constitutes "core advisory functions." Although I am unable to support this proposal, I thank the staff in the Divisions of Investment Management and Economic and Risk Analysis, as well as the Office of the General Counsel, for their efforts. I will look forward to the public comments.

[1] See SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 194 (1963). See also Commission Interpretation Regarding Standard of Conduct for Investment Advisers, Investment Advisers Act Release No. 5248 (June 5, 2019) [84 FR 33669 (July 12, 2019)].

[2] See Outsourcing by Investment Advisers, Investment Advisers Act Release No. 6176 (Oct. 26, 2022), available at https://www.sec.gov/rules/proposed/2022/ia-6176.pdf.

[3] Id.

[4] Id.

[5] See Armental, Maria, BNY Mellon to Pay $3 Million to Resolve Massachusetts Probe Over Glitch, The Wall Street Journal (Mar. 21, 2016), available at https://www.wsj.com/articles/bny-mellon-to-pay-3-million-to-resolve-massachusetts-probe-over-glitch-1458581998.

[6] The release also does not address that - unlike other types of advisory clients - mutual funds are required by the Investment Company Act of 1940 ("Investment Company Act") to have independent boards of directors that oversee the funds' operations. See, e.g., 15 U.S. Code § 80a-10. In addition, Rule 38a-1 under the Investment Company Act requires mutual fund boards to approve the compliance policies and procedures of a fund's investment adviser and certain enumerated service providers. See 17 CFR § 270.38a-1.

[7] See In the Matter of Aegon USA Investment Management, LLC, et al, Investment Advisers Act Release No. 4996 (Aug. 27, 2018) (settled order), available at https://www.sec.gov/litigation/admin/2018/33-10539.pdf.

[8] Id. According to the settled order, the primary adviser's employees recognized that "we run the risk of the [the subadviser's analyst] making an error, which is easy to do." Id.

[9] See Morgan Stanley Smith Barney LLC, Investment Advisers Act Release No. 6138 (Sept. 20, 2022) (settled order), available at https://www.sec.gov/litigation/admin/2022/34-95832.pdf. The other matter is the failure of certain investment advisers to produce records to evidence the delivery of firm brochures due to the use of third-party client relationship managers to perform that function.

[10] See 17 CFR § 275.204-2.

[11] For example, Rule 204-3 under the Advisers Act requires an adviser to deliver a firm brochure to clients or prospective clients. See 17 CFR § 275.204-3. While the delivery of firm brochures is not a core advisory function, it is nevertheless a function that is necessary for an adviser to provide its investment advisory services in compliance with the federal securities laws.

[12] The proposing release exacerbates these interpretive problems by citing to an enforcement action involving moving and storage functions as an example of service provider oversight failures that justify the rule.

[13] See Proxy Voting by Investment Advisers, Release No. IA-2106 (Jan. 31, 2003) [68 FR 6585, 6586 (Feb. 7, 2003)], available at https://www.sec.gov/rules/final/ia-2106.htm.

[14] See Outsourcing by Investment Advisers, supra note 2.

[15] See Electronic Recordkeeping Requirements for Broker-Dealers, Security-Based Swap Dealers, and Major Security-Based Swap Participants, Release No. 34-96034 (Oct. 12, 2022), available at https://www.sec.gov/rules/final/2022/34-96034.pdf.

[16] See Request for Comment on Certain Information Providers Acting as Investment Advisers, Investment Advisers Release No. 6050 (Jun. 15, 2022) [87 FR 37254 (Jun. 22, 2022)], available at https://www.sec.gov/rules/other/2022/ia-6050.pdf. The proposing release indicates that "we are continuing to consider all of the comments received." See Outsourcing by Investment Advisers, supra note 2.

https://www.sec.gov/news/speech/uyeda-georgetown-summit-20221025

Good afternoon everyone.  Thank you, Bob [Lannan], for the kind introduction.  I'm pleased to share some thoughts on climate disclosure, which reflect my individual views as a Commissioner and do not necessarily reflect the views of the full Commission or my fellow Commissioners.

In March 2022, the Commission proposed sweeping changes for issuers regarding climate change disclosures.[1]  Two months later, the Commission proposed additional rules for funds to incorporate environmental, social, and governance (ESG) factors into their disclosures.[2]  These ambitious proposals have received robust public comment and for good reason.  These proposals - both staggering in their complexity and reach - are merely two proposals among an exceedingly packed SEC regulatory agenda.[3]   

I will focus on two topics: the concept of "materiality" in the federal securities laws and the comparability of ESG disclosure in fund documents.

ESG
With respect to public companies, the Commission proposed to add an entirely new section to Regulation S-K for climate disclosure.  Larger public companies would be subject to an attestation requirement for some of the proposed greenhouse gas (GHG) emissions metrics disclosures.  Further, the Commission proposed a new article to Regulation S-X requiring certain climate-related financial statement metrics and related disclosure to be included in the notes to the financial statements.  As part of the financial statements, they would be subject to audit by an independent auditor, and be subject to the registrant's internal control over financial reporting.

It may be useful to look at the past to better understand where we are today.  ESG's roots can be traced back to socially responsible investing (SRI).[4]  In the 1970s and 1980s, the term gained prominence due to social concerns about the Vietnam War and apartheid policies in South Africa.  In the early 2000s, SRI began to incorporate governance factors due to, among other things, the collapse of Enron and other corporate scandals. 

Today, SRI has transformed into ESG.  While seemingly simple, environmental, social, and governance factors encompass a multitude of sub-issues.  Adding to the murkiness is the subjectivity of how investors and issuers consider ESG.  Should ESG reflect the impact that a company has on the welfare of its stakeholders and the environment, or should it measure the impact societal and environmental factors have on the company?  For example, is a hypothetical company that produces so-called "green" technology but has substantial worker safety issues a better ESG investment than an energy company whose products promote economic growth and result in the reduction of poverty, famine, and suffering?  

Some have argued the Commission-mandated ESG disclosure is necessary to address concerns about interpretative issues involving what is E, S, and G and the challenges that corporate issuers and investors face with respect to ESG rating firms.[5]  Critics of ESG rating firms have raised concerns that the methodologies are opaque and that it is difficult to understand how a company is rated.[6]  Companies may find it challenging to correct information that is outdated or incorrect and find themselves responding to a multitude of ESG surveys requesting data and other information over different time periods, thus raising costs and stretching scarce resources.    

While these may be valid concerns about ESG ratings and the firms that provide them, it is an open question as to whether the Commission must step in and mandate uniform disclosure requirements.  If past is prologue, then investor and third-party views of what ESG disclosure is important - and what the E, S, and G mean - will likely shift over time.  Once hard-wired into the SEC rule book, regulations have a tendency not to be subject to retrospective review for a long time.  For example, it took the SEC over 30 years to review its disclosures regime for banks and savings and loan registrants.[7]  Prescriptive Commission rulemaking may not be sufficiently nimble or effective with respect to these types of disclosures.

This brings me to my next point: the continued importance of financial materiality to our disclosure regime.

Materiality
Materiality is the cornerstone of our federal securities laws. In fact, the word "material" was part of the original Securities Act of 1933, also known as the "Truth in Securities Law."[8]  "Materiality" was aptly framed in 1976, when Justice Thurgood Marshall of the Supreme Court, in TSC Industries v. Northway, explained in an 8-0 opinion that a fact is "material" if there is "a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote," and where the disclosure of would have been viewed by the reasonable investor as "having significantly altered the 'total mix' of information made available."[9]  The Supreme Court reiterated this definition in Basic v. Levinson in the context of a securities fraud case.[10] 

It is important to note the context of TSC Industries v. Northway.  The proxy vote at issue centered on the acquisition of TSC Industries by National Industries, in which shareholders were being asked to approve the proposed exchange of TSC common and Series 1 preferred stock for National Series B preferred stock and warrants.[11]  This was a quintessential investment decision involving the appropriate enterprise value of two different entities, not a vote on a routine matter or a non-binding shareholder proposal.

Thus, the Supreme Court cautioned that "[s]ome information is of such dubious significance that insistence on its disclosure may accomplish more harm than good."[12]  Justice Marshall observed that "if the standard of materiality is unnecessarily low, not only may the corporation and its management be subjected to liability for insignificant omissions or misstatements, but also management's fear of exposing itself to substantial liability may cause it simply to bury the shareholders in an avalanche of trivial information -- a result that is hardly conducive to informed decision-making."[13]

Today, some have suggested that a broadening of materiality to encompass "qualitative" materiality, or the European Union's "double materiality."[14]  They would replace financial materiality with a more outcome-driven approach based on their perspective of the public good.

This approach is not new. Then-SEC Commissioner Roberta Karmel captured these issues in 1978:

As greater numbers of Americans become owners of our large public corporations, whether individually or through institutional investors, and as corporations become subject to increasing government regulation, the dialogue between shareholders and their corporations becomes part of a larger political process.  Nevertheless, and despite the legitimate concerns of ethical investors, I believe we should exercise caution in applying a non-economic standard of materiality to disclosure requirements. . . Because some investors may want certain information in order to make an investment or voting decision does not mean that mandatory disclosure of such information would be necessary or appropriate in the public interest or for the protection of investors.[15] 
 
If we move away from a materiality that is focused on financial returns, we risk a regime that is subject to the whims of the administration in power - regardless of its political affiliation.  And such a regime will likely increase the costs and complexity of disclosure, alongside increased litigation.  More importantly, it will be Main Street investors who will ultimately bear these costs.

ESG and Fund Disclosures
I will now turn to ESG and fund disclosures.  You may wonder why I am discussing ESG fund disclosure at the Hotel and Lodging Summit.  Mutual funds and exchange-traded funds (ETFs), however, serve important functions for your businesses, whether through owning your company's stock and bond holdings or serving as 401(k) investment options for your employee benefit plans. 

Some statistics: as of December 31, 2021, U.S. registered open-end funds, which include mutual funds, closed-end funds, ETFs and unit investment trusts, had $34.6 trillion of assets under management.[16]  They own 32% of U.S. corporate equity and 24% of U.S. and foreign corporate bonds.  In terms of the retirement market, $12.6 trillion of defined contribution and IRA assets are invested in funds.[17] 

Therefore, regulation that affects funds - particularly regulation that increases costs and compliance burdens - will likely affect your interactions with asset managers.

In May of this year, the Commission proposed disclosure and other changes that would greatly impact fund disclosure.  The proposal would require additional specific disclosure requirements regarding ESG strategies to investors in fund registration statements, the management discussion of fund performance in fund annual reports, and adviser brochures.[18]  The proposal contains minimum disclosure requirements for any fund that markets itself as an ESG-focused fund or an integration fund.[19]  ESG-focused funds would be required to disclose two specific GHG emissions metrics for the portfolio in such funds' annual reports.[20]

The Commission chose not to define "ESG" for purposes of the proposal and instead asked questions as to whether it should define "ESG."[21]  That was an interesting choice, because many obligations under the proposal are only required if ESG factors are considered.  But the scope as to what is, and what is not, an ESG factor can be elusive.

At least one other regulator gave up on trying to define what is an ESG factor.  When the Department of Labor adopted a final rule guiding the investment decisions of fiduciaries under the Employee Retirement Income Security Act, it concluded that "'ESG' terminology, although used in common parlance when discussing investments and investment strategies, is not a clear or helpful lexicon for a regulatory standard."[22]  Moreover, the Department found that "the terms do not have a uniform meaning and the terminology is evolving, and the non-pecuniary goals being advocated today may not be the same as those advocated in future years."[23]

I appreciate the comments that have been submitted on the ESG fund proposal.  While the rulemaking raises many important issues to consider, today I will focus on comparability.  Notably, in proposing the rule, the Commission claimed that "[t]he proposed rules and form amendments are designed to create a consistent, comparable, and decision-useful regulatory framework for ESG advisory services and investment companies to inform and protect investors while facilitating further innovation in this evolving area of the asset management industry."[24]

Over the years, the Commission has made significant strides in requiring fund disclosure that is comparable, useful, and appropriately tailored to provide fund investors with the information they need to make investment decisions.  For example, in 1998, the Commission adopted rules to standardize fee table disclosure so that investors could quickly and easily compare fund fees.[25]  In 2009, the Commission required funds to include a summary in the beginning of their prospectus.[26]  The summary sets forth key information that investors need to make an investment decision, in plain English, and in a standardized order to facilitate comparisons among funds. 

Notably, these reforms did not generally mandate how funds should characterize their investment objectives or strategies, or otherwise force funds into prescriptive boxes.  Instead, the reforms focused on ensuring that disclosure was presented in a particular, systematic order, and that quantitative information - such as the fee table and performance chart - was presented and calculated uniformly.  When I compare these reforms to the current proposal, I wonder whether ESG disclosure - even for funds that pursue an ESG strategy - is appropriate for a check-the-box disclosure approach.[27]  As ESG has different meanings and utility to different stakeholders, reducing ESG to specified categories risks making the disclosure potentially misleading - at worst - or confusing or unhelpful, at best.

Next Steps
The Commission has received a large number of comment letters on the climate-related proposal for issuers and the ESG proposal for funds.  The staff is in the process of reviewing these comments and formulating recommendations for next steps. 

Finally, I am concerned about the pace and breadth of the Commission's regulatory agenda in general and with respect to ESG-related rulemaking.[28]  With inflation at record highs, supply chain concerns, labor shortages, and the continuing effects of the pandemic on the economy, businesses continue to struggle. We should not overwhelm firms with significant and costly new regulations.  Indeed, many sectors, including the hotel and lodging industry, are straining under the renewed demand for their services as we emerge post-pandemic.  A poorly coordinated implementation period for any new regulations can create adverse effects on businesses and give short shrift to the Commission's mission to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.

Thank you.

[1] The Enhancement and Standardization of Climate-Related Disclosures for Investors, SEC Release No. 34-11061 (May 9, 2022) [87 FR 21334 (Apr. 11, 2021)], available at https://www.federalregister.gov/documents/2022/04/11/2022-06342/the-enhancement-and-standardization-of-climate-related-disclosures-for-investors.

[2] Enhanced Disclosures by Certain Investment Advisers and Investment Companies about Environmental, Social, and Governance Practices, SEC Release No. 33-11068 (May 25, 2022) [87 FR 36654 (June 17, 2022)] ("ESG Proposing Release"), available at https://www.federalregister.gov/documents/2022/06/17/2022-11718/enhanced-disclosures-by-certain-investment-advisers-and-investment-companies-about-environmental.

[3] SEC Announces Spring 2022 Regulatory Agenda, Press Release No. 2022-112 (June 22, 2022), available at https://www.sec.gov/news/press-release/2022-112.

[4] Max M. Schanzenbach & Robert H. Sitkoff; Article: Reconciling Fiduciary Duty and Social Conscience; the Law and Economics of ESG Investing by a Trustee; 72 Stan. L. Rev. 381 (Feb. 2020).

[5] See, e.g., Investor-as-Owner Subcomm., SEC Inv. Advisory Comm., Recommendation Relating to ESG Disclosure 1-2 (May 14, 2020), available at https://www.sec.gov/spotlight/investor-advisory-committee-2012/esg-disclosure.pdf.

[6] See David F. Larcker, Lukasz Pomorski, Brian Tayan, and Edward M. Watts, ESG Ratings: A Compass without Direction, Rock Center for Corporate Governance at Stanford University (Aug. 2, 2022).  See also Bridget Hickey, Vanguard, Baird, Ariel Labelled ESG Laggards, FundFire (Oct. 18, 2022).

[7] Update of Statistical Disclosures for Bank and Savings and Loan Registrants, SEC Release No. 33-10835 (Sept. 11, 2020) [85 FR 66108 (Oct. 16, 2020)], available at https://www.federalregister.gov/documents/2020/10/16/2020-20655/update-of-statistical-disclosures-for-bank-and-savings-and-loan-registrants. 

[8] See David A. Katz and Laura A. McIntosh, "Materiality" in America and Abroad, N.Y.L.J., Apr. 29, 2021, at p.5, col.1; Vol. 265; No. 80.

[9] TSC Industries v. Northway, 426 U.S. 438 (1976).

[10] Basic Inc. v. Levinson, 485 U.S.224, 231 (1988).

[11] 426 U.S. 440-41.

[12] Id. at 448.

[13] Id. at 448-49.

[14] Ruth Jebe, Article: The Convergence of Financial and ESG Materiality: Taking Sustainability Mainstream, 56 Am. Bus. L.J.  645, 659 (Fall, 2019).

[15] Commissioner Roberta S. Karmel, Changing Concepts of Materiality, Speech before the National Investor Relations Institute (Apr. 12, 1978), available at https://www.sec.gov/news/speech/1978/041278karmel.pdf.

[16] Investment Company Institute, 2022 Fact Book, available at https://icifactbook.org/pdf/2022_factbook.pdf. 

[17] Id.

[18] ESG Proposing Release, supra note 2.

[19] Id. at 36657.

[20] Id. at 36659.

[21] Id. at 36660.

[22] Financial Factors in Selecting Plan Investments, Employee Benefits Security Administration, Department of Labor 85 FR 72846, 72857 (Nov. 13, 2020).

[23] Id.

[24] ESG Proposing Release, supra note 2.

[25] Final Rule: Registration Form Used by Open-End Management Investment Companies, SEC Release No. 33-7512 (Mar. 13, 1998) [63 FR 13916 (Mar. 23, 1998)].

[26] Enhanced Disclosure and New Prospectus Delivery Options for Registered Open-end Investment Management Companies, SEC Release No. 33-8998 (Jan. 13, 2009) [74 FR 4546 (Jan. 26, 2009)].

[27] See, e.g., Jacob Rund, SEC Urged by Advisory Panel to Tackle ESG Disclosures, Bloomberg Law (May 21, 2020), available at https://news.bloomberglaw.com/esg/sec-urged-by-advisory-panel-to-tackle-esg-disclosures, noting the following remarks by Stephen Holmes: "I don't think many people would benefit from what would probably be a massive amount of boiler plate legalese or a master manual with lots of boxes to be checked." 

[28] Commissioner Hester M. Peirce, RIP Current Rulemakings: Statement on the Regulatory Flexibility Agenda (June 2, 2022), available at https://www.sec.gov/news/statement/peirce-statement-regulatory-flexibility-agenda-062222.

https://www.finra.org/sites/default/files/fda_documents/2019063821608
%20Nigel%20Ronald%20James%20CRD%204490687%20AWC%20va.pdf
For the purpose of proposing a settlement of rule violations alleged by the Financial Industry Regulatory Authority ("FINRA"), without admitting or denying the findings, prior to a regulatory hearing, and without an adjudication of any issue, Nigel Ronald James submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. The AWC asserts that Nigel Ronald James was first registered in 2002; and 2013, he was registered with Joseph Stone Capital L. L. C. In accordance with the terms of the AWC, FINRA imposed upon James a $5,000 fine and a six-month suspension from associating with any FINRA member in all capacities. The AWC asserts in part that:

James engaged in excessive and unsuitable trading in the accounts of Customers A, B, C, and D, as described below. 

Customer A is a 71-year-old owner of an architecture design firm from Texas. Between January 2015 and December 2018, James recommended that Customer A place 69 trades in his account, and Customer A accepted James's recommendations. Collectively, the trades that James recommended caused Customer A to pay $17,080.99 in commissions and fees and resulted in an annual cost-to-equity ratio of more than 37 percent-meaning the customer's investments had to grow by more than 37 percent just to break even. Although Customer A's account had an average month-end equity of $12,621.22, James recommended purchases with a total principal value of $433,852.48, which resulted in an annual turnover rate in the account of more than eight. 

Customer B is a 51-year-old owner of a lumber business from Pennsylvania. Between January 2015 and August 2017, James recommended that Customer B place 44 trades in his account, and Customer B accepted James's recommendations. Collectively, the trades that James recommended caused Customer B to pay $9,635.89 in commissions and fees and resulted in an annual cost-to-equity ratio of more than 45 percent-meaning the customer's investments had to grow by more than 45 percent just to break even. Although Customer B's account had an average month-end equity of $8,566.55, James recommended purchases with a total principal value of $334,451.46, which resulted in an annual turnover rate in the account of more than 14. 

Customer C is a 79-year-old farmer from South Carolina. Between November 2015 and March 2020, James recommended that Customer C place 118 trades in his account, and Customer C accepted James's recommendations. Collectively, the trades that James recommended caused Customer C to pay $39,935.17 in commissions and fees and resulted in an annual cost-to-equity ratio of more than 21 percent-meaning the customer's investments had to grow by more than 21 percent just to break even. Although Customer C's account had an average month-end equity of $53,054.76, James recommended purchases with a total principal value of $1,391,752.23, which resulted in an annual turnover rate in the account of nearly six. 

Customer D is a 75-year-old retired grocery store manager from Missouri. Between January 2017 and August 2019, James recommended that Customer D place 70 trades in his account, and Customer D accepted James's recommendations. Collectively, the trades that James recommended caused Customer D to pay $11,281.19 in commissions and fees and resulted in an annual cost-to-equity ratio of nearly 25 percent-meaning the customer's investments had to grow by nearly 25 percent just to break even. Although Customer D's account had an average month-end equity of $18,489.92, James recommended purchases with a total principal value of $383,413.05, which resulted in an annual turnover rate in the account of more than seven. 

The customers described above collectively had losses in their accounts of approximately $52,000 and paid $77,933.24 in commissions and fees based on the trades James recommended during the relevant period. James's recommended securities transactions in the accounts of Customers A, B, C, and D were excessive and unsuitable in light of their investment profiles. Therefore, James violated FINRA Rules 2111 and 2010.

FINRA Fines and Suspends Principal for Supervision of VRSPs
https://www.finra.org/sites/default/files/fda_documents/2020066723301
%20Teresa%20Douberly%20CRD%202477566%20AWC%20lp.pdf
For the purpose of proposing a settlement of rule violations alleged by the Financial Industry Regulatory Authority ("FINRA"), without admitting or denying the findings, prior to a regulatory hearing, and without an adjudication of any issue, Teresa Douberly submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. The AWC asserts that Teresa Douberly was first registered in 1994; and from May 2016 through June 2021, she was registered with Aegis Capital Corp. In accordance with the terms of the AWC, FINRA imposed upon Douberly a $5,000 fine, a four-month suspension from associating with any FINRA member in all Principal-only capacities, and a requirement to complete 20 hours of continuing education concerning supervisory responsibilities. The AWC asserts in part that [Ed: Variable Interest Rate Structured Products ("VRSPs"; "Steepener" is a VRSP that pays a High Teaser Interest Rate):

Douberly was the designated principal responsible for supervising the registered representatives assigned to Aegis's Boca Raton, Florida branch office, where Representatives A and B worked. From July 2017 through December 2018, Representatives A and B recommended that 11 customers with low or moderate risk tolerances, or investment objectives other than aggressive or speculation, purchase VRSPs, including steepeners. Douberly, who was responsible for reviewing Aegis's trade blotter, was aware that Representatives A and B recommended VRSPs, including steepeners, to the 11 customers. Nonetheless, Douberly did not take any steps to confirm whether the recommendations were suitable, such as reviewing the customers' investment objectives and risk tolerances or speaking with the customers to confirm they understood the risks of the VRSPs. Nor did Douberly complete an attestation form certifying that she reviewed the recommendations and confirmed they were suitable in light of the customers' risk tolerances and investment objectives. ln fact, the recommendations were not suitable for the 11 customers given their investment objectives and risk tolerances. The customers suffered significant realized losses as a result of their VRSP positions, even after accounting for the income they earned from the investments. 

Douberly therefore violated FINRA Rules 3110 and 2010. 

https://www.brokeandbroker.com/6724/expungement-finra-ndtx/
Removing published, public, customer complaints from a registered representative's industry record is serious business with serious ramifications. FINRA version of expungement involves arbitration. It shouldn't. Expungement should be presented to a regulatory panel. Making matters worse, FINRA's expungement program is a travesty, which in the case of customer complaints ends with little more than a "recommendation" that requires the registered rep to go to court for a confirmation. That's more time and more money. Consider the evolution of two customers' complaint against Merrill Lynch, the ensuing settlement, and the expungement petition of an unnamed rep. 

https://www.justice.gov/opa/pr/ceo-and-president-hawaii-shipbuilding-company-charged-securities-fraud
In an Indictment filed in the United States District Court for the District of Hawaii, Curtiss Jackson and Jamey Jackson were charged with securities fraud, conspiracy, mail fraud, and wire fraud for their roles in a decade-long scheme to defraud investors of millions of dollars in connection with Semisub Inc. As alleged in part in the DOJ Release, the husband and wife: 

[A]llegedly engaged in a scheme to fraudulently obtain money by deceiving purchasers of Semisub securities about the company's business and operations, including its revenue and expenses. Specifically, the indictment alleges that Curtiss Jackson and Jamey Jackson, who were respectively Semisub's CEO and President, would use funds raised from the sale of securities to develop and build a fleet of semi-submersible vessels for tourism and other commercial purposes and raised over $28 million from more than 400 investors.

For over 10 years, the defendants allegedly falsely told investors that a purported prototype vessel, dubbed "Semisub One," was "weeks" or "months" away from beginning operations. They also allegedly falsely claimed that Semisub had entered into agreements or developed relationships with marquee government agencies and a well-known private equity firm to build and sell a fleet of additional vessels for $32 million each. The defendants allegedly misused a substantial amount of the money raised from the sale of Semisub securities to pay for luxury residences in California and Hawaii, a Mercedes-Benz automobile, luxury vacations, psychics, marijuana, personal credit card bills, and cash withdrawals for their personal use, among other things. Curtiss Jackson and Semisub were also allegedly barred from offering or selling securities by the Pennsylvania Securities Commission in 2008 and by the California Department of Corporations in 2009 in those states. The defendants nonetheless allegedly continued to sell securities to investors across the United States, including to those in Pennsylvania and California, in violation of both states' orders.

https://www.justice.gov/usao-nj/pr/three-men-convicted-1-million-upfront-fee-scheme
After a five-week jury trial in the United States District Court for the District of New Jersey,  Jerrid Douglas, Harold Mignott, and Roy Johannes Gillar were each convicted of wire fraud conspiracy and four counts of wire fraud; and, additionally, Gillar and Douglas were each convicted of one count of transacting in criminal proceeds. As alleged in part in the DOJ Release:

From March 2016 through June 2016, Douglas, Gillar, and Mignott, along with a fourth conspirator, agreed to defraud the owners of the victim company of approximately $1 million. The defendants fraudulently induced the two victim company owners to enter a joint venture agreement with the defendants' New Jersey-based shell company. The defendants falsely represented that their company could acquire and provide a "standby letter of credit" (SBLC) backed by either €1 billion in cash or highly lucrative Mexican gold bonds. An SBLC is a guarantee of payment issued by a bank on behalf of a client that is used should the client fail to fulfill a contractual commitment with a third party.

The victim company wanted access to the standby letter of credit so it could purchase raw gold overseas and sell it to gold refineries. As part of the joint venture agreement, the company agreed to pay the defendants $1 million for the bank fee associated with the standby letter of credit.

In order to cover up the scheme and convince the victims to approve the transfer of the funds, the defendants made numerous verbal and written misrepresentations, including providing the victims with a phony letter from a major international bank saying that it was ready, willing, and able to provide a €1 billion SBLC to the defendants' shell company.

However, after the victim company owners transmitted $800,000 of the $1 million to the defendants, the defendants failed to provide an SBLC or anything of value. Instead, the defendants misappropriated the money for their personal use.

https://www.sec.gov/news/press-release/2022-191
Without admitting or denying the findings in SEC Orders: 


agreed to cease and desist from improperly accounting revenue and for other cited accounting misconduct. Further, Cronos agreed to retain an independent compliance consultant to review, assess, and make recommendations with respect to the firm's financial reporting and accounting controls; and, Hilson agreed to a three-year officer and director bar and he agreed to be suspended from appearing and practicing before the SEC as an accountant for at least three years. No financial penalty was imposed on Hilson in light of his consent to pay $70,000 (CAD), or approximately $54,000 (USD), to the Ontario Securities Commission for similar conduct.  As alleged in part in the SEC Release

[I]n three separate quarters between 2019 and 2021, Cronos submitted financial statements with the SEC that contained material accounting errors related to, among other things, revenue recognition and goodwill impairment. The order also found that, in one of the quarters, Hilson entered into an undisclosed oral agreement to sell cannabis raw material and to repurchase cannabis product in the following quarter. This agreement was neither known nor accounted for by Cronos, which discovered the $2.3 million accounting error during an internal investigation. After discovering the accounting errors, Cronos promptly reported the misconduct to the SEC and provided extensive cooperation that meaningfully advanced the Commission's investigation. It also took effective remedial steps to enhance its internal accounting controls.

. . .

The SEC's order against Cronos finds that the company violated the antifraud, reporting, books and records, and internal controls provisions of the federal securities laws. The SEC's order against Hilson finds that he violated the antifraud provisions of the federal securities laws and further aided and abetted and caused Cronos's violations of the reporting, books and records, and internal controls provisions.

https://www.sec.gov/litigation/litreleases/2022/lr25564.htm
The United States District Court for the District of Colorado entered a Final Judgment on permanently enjoining Cetera Advisors, LLC and Cetera Advisor Networks, LLC from violations of Sections 206(2) and 206(4) of the Investment Advisers Act of 1940 and Rule 206(4)-7 thereunder; ordering them to pay disgorgement on a joint and several basis of $5,614,509, plus prejudgment interest of $990,961; and ordering each of them to pay a $1,000,000 civil money penalty. As alleged in part in the SEC Release:

According to the SEC's amended complaint filed on October 11, 2019, in the United States District Court for the District of Colorado, the Cetera defendants breached their fiduciary duty and defrauded retail advisory clients by, among other things, failing to properly disclose conflicts of interest related to the firms' receipt of compensation in the form of 12b-1 fees, revenue sharing, administrative fees, and mark-ups.

https://www.cftc.gov/PressRoom/PressReleases/8615-22
The United States District Court for the District of Arizona entered a Consent Order imposing monetary sanctions against Purvesh Mankad and his affiliated entities CTAX Series, LLC, a CFTC-registered commodity pool operator, and CTAX Partners, LLC, a CFTC-registered introducing broker. The Consent Order
https://www.cftc.gov/media/7886/enfmankadconsentorder101922/download
requires the defendants to pay $1,631,072.29  restitution and a $727,588.91 civil monetary penalty; and the Order permanently prohibited the defendants from further cited violations of the Commodity Exchange Act and imposed permanent registration and trading bans. As alleged in part in the CFTC Release:

The CFTC charged the defendants in connection with the CTAX Series 1, LLC commodity pool (CTAX pool). The complaint alleged, and the court found, that during the relevant period from approximately July 25, 2014 to March 22, 2019, Mankad and CTAX Series (1) represented to pool participants that only experienced commodity trading advisors (CTAs) would trade funds in the CTAX pool, when in reality Mankad, who was not a CTA and had limited, unsuccessful experience trading futures, engaged in much and eventually all trading in the CTAX pool; (2) misrepresented and omitted material facts regarding brokerage commissions that would be charged to the CTAX pool, when in fact Mankad and CTAX Partners misappropriated pool funds by extracting excessive commissions triggered by Mankad's own unauthorized trading; (3) beginning in July 2018, recklessly traded the CTAX pool's assets in a manner that resulted in a loss of approximately 89 percent of the CTAX pool's assets, resulting in significant losses to pool participants; (4) concealed those losses from pool participants by intentionally delaying the provision of monthly account statements to pool participants; and (5) submitted false emails to the NFA, in connection with an NFA audit of CTAX Series and CTAX Partners, to make it appear that the defendants provided timely account statements to all pool participants. As a result of this conduct, pool participants lost more than $1.9 million.

The CFTC previously issued an order simultaneously filing and settling related charges against Paul Ohanian, an SEC-registered investment advisor based in Scottsdale, Arizona, and his advisory firm Scottsdale Wealth Planning, Inc., for intentionally or recklessly omitting material facts from communications with their clients who were pool participants contributing funds to the CTAX pool and for failing to register with the CFTC as CTAs. That order required Ohanian and Scottsdale Wealth to pay $338,000 in restitution and a $169,000 civil monetary penalty, among other things. 

https://www.finra.org/sites/default/files/fda_documents/2021073064901
%20Heather%20S.%20Skipper%20CRD%202126799%20AWC%20lp.pdf
For the purpose of proposing a settlement of rule violations alleged by the Financial Industry Regulatory Authority ("FINRA"), without admitting or denying the findings, prior to a regulatory hearing, and without an adjudication of any issue, Heather S. Skipper submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. The AWC asserts that Heather S. Skipper was first registered in 1992; and from February 2018 to November 2021,s he was registered with Wells Fargo Clearing Services, LLC. In accordance with the terms of the AWC, FINRA imposed upon Skipper a $5,000 fine and a six-month suspension from associating with any FINRA member in all capacities. In part the AWC asserts in part that:

Between approximately December 2020 and April 2021, Skipper forged the electronic signature of her supervisor on 105 commission adjustment letters, reflecting changes to representative codes on customers' annuity accounts, by either copying and pasting the supervisor's electronic signature or signing the supervisor's name electronically. Skipper then caused these letters to be transmitted to the annuity carriers. The supervisor did not give Skipper prior permission to sign the supervisor's name. 

In April 2021, Skipper forged the electronic signature of a different supervisor on an internal firm document, known as a Document Verification Form (DVF), used to verify customer information. Specifically, a customer had failed to provide certain information on a form designating the beneficiary of the customer's Individual Retirement Account at the firm. After obtaining the missing information from the customer, Skipper completed a DVF, which Wells Fargo required to be signed by a qualified supervisor. Rather than obtaining a supervisor's signature, Skipper affixed a scanned, electronic copy of a supervisor's signature on the DVF and submitted the DVF to Wells Fargo for processing.2 The supervisor did not give Skipper prior permission to sign the supervisor's name. 

Therefore, Skipper violated FINRA Rule 2010.
= = = = =
Footnote 2: Wells Fargo rejected the DVF from processing because Skipper had neglected to sign her name to the form as the submitter

https://www.finra.org/sites/default/files/fda_documents/2020065354801
%20Robert%20Louis%20Takacs%20CRD%202954611%20AWC%20lp.pdf
For the purpose of proposing a settlement of rule violations alleged by the Financial Industry Regulatory Authority ("FINRA"), without admitting or denying the findings, prior to a regulatory hearing, and without an adjudication of any issue, Robert Louis Takacs submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. The AWC asserts that Robert Louis Takacs was first registered in 1997; and from March 2012 to January 2020, he was registered with Morgan Stanley. In accordance with the terms of the AWC, FINRA imposed upon Takacs a 
$5,000 fine and a six-month suspension from associating with any FINRA member in all capacities. In part the AWC asserts in part that [Ed: footnote omitted]: 

In 2012, Takacs entered into eight agreements through which he agreed to service certain customer accounts, including executing trades for those accounts, under joint representative codes ( also known as joint production numbers) that he shared with a senior member of his team (Representative 1 ). Each agreement set forth the percentages of the commissions that each representative would earn on trades placed using the applicable joint representative code. 

From October 2014 through December 2019, Takacs placed 1,286 trades in accounts covered by the joint production agreements using representative codes other than those he should have used. Specifically, although Morgan Stanley's system correctly prepopulated the trades with the applicable joint representative code, Takacs changed the code for the 1,286 trades to his personal representative code or another joint representative code. As a result, Morgan Stanley's trade confirmations for the trades reflected an inaccurate representative code, and Takacs received a higher percentage of commissions than what he was entitled to receive pursuant to the joint production agreements. 

Takacs did not ask Representative I whether he could change the representative code on the 1,286 trades at issue prior to each trade. Rather, Takacs mistakenly believed that Representative I had previously agreed that he could change the representative codes so that Takacs would receive higher percentages of commissions than what was set forth in the joint production agreements. In fact, Representative 1 had not agreed that Takacs could change the representative codes. 

In February 2020, Morgan Stanley paid restitution of approximately $63,000 to Representative 1, which is the approximate amount of additional commissions Takacs received as a result of changing the representative code on the 1,286 trades. 

By falsifying the representative code on the 1,286 trades, Takacs violated FINRA Rule 2010. In addition, Takacs violated FINRA Rules 4511 and 2010 by causing Morgan Stanley to maintain inaccurate trade confirmations.
 


(BrokeAndBroker.com Blog)
https://www.brokeandbroker.com/6732/tdameritrade-incorrect-address/
In today's blog we cover a recent FINRA Arbitration Award involving a TD Ameritrade representative, who told a customer something about another, unnamed licensed broker; and in the telling of that something to the customer, there was reference to a Buy Order that would be priced at the time of its placement but for the fact that the intended order was blocked because of a wrong address; and, notwithstanding the blocked order, the representative told the customer that the other licensed broker could adjust the price of the order, but in saying "could," the representative didn't assert that the other broker "would" adjust the price. Wow . . . lemme catch my breath. Please, you take it from here.

https://www.justice.gov/usao-ednc/pr/former-raleigh-investment-advisor-found-guilty-healthcare-fraud-targeted-elderly-and
After a jury trial in the United States District Court for the Eastern District of North Carolina, Furman Alexander Ford was found guilty of Conspiracy to Commit Health Care Fraud, Healthcare Fraud, Wire Fraud, and Aggravated Identity Theft.  Previously, Co-conspirator Jimmy Guess pled guilty to healthcare fraud, conspired in a scheme to defraud Medicare by submitting false claims to Medicare for mental health services that were never provided to Medicare beneficiaries.  As alleged in part in the DOJ Release:

[F]ord and Guess submitted over 5,000 claims to Medicare, totaling approximately $534,438, for mental health services allegedly provided to approximately 145 beneficiaries between October 2018 and February 2020.  Defendant executed several fraud schemes to obtain the beneficiaries' Medicare information.  In one scheme, Ford's company offered Electronic Health Records conversion and teletherapy counseling to assisted living homes for the elderly and disabled.  In another scheme, Ford's company offered free food in exchange for the Medicare information of low-income elderly parishioners at churches in Bladen County, and by cold calling unsuspecting victims offering telehealth services.   

https://www.justice.gov/usao-mdfl/pr/sarasota-man-sentenced-23-years-federal-prison-running-80-million-oasis-forex-ponzi
After a 13-day jury trial in the United States District Court for the Middle District of Florida, Michael J. DaCorta, 57, was found guilty of conspiracy to commit wire fraud and mail fraud, money laundering, and filing a false income tax return; and he was sentenced to 23 years in prison and ordered to forfeit $2,817,876.16. As alleged in part in the DOJ Release:

[F]rom November 2011 through April 18, 2019, DaCorta ran an investment company named Oasis International Group, Ltd. ("OIG"). DaCorta and his co-conspirators persuaded at least 700 victims to invest in OIG through promissory notes and other means, causing victims' losses exceeding $80 million. DaCorta, who had effectively been banned from conducting foreign exchange trading ("FOREX") by agreement with the National Futures Association, induced victims to invest in OASIS by falsely representing to victim-investors that OASIS was reaping enormous profits by being a "market maker" and collecting "spread" on voluminous FOREX trades. DaCorta also pitched the opportunity as essentially risk free and OASIS as well-collateralized. In reality, OASIS was not making markets and had no true revenue. The "spread" earnings were being paid on each trade by OASIS back to OASIS in order to create the illusion of revenue, which was published to investors on fictious account statements and an online portal. The OIG investor portal showed the "spread" credits but concealed catastrophic underlying trading losses.

DaCorta and his conspirators used the balance of the victim-investors' funds to make Ponzi-style payments to perpetuate the scheme and to fund lavish lifestyles. For example, the evidence showed that DaCorta used victim-investors' funds to purchase a Maserati and Range Rovers for his family members, a country club membership, multiple million-dollar homes in Florida, college tuition for family members, flights on private jets, and lavish trips to Europe and the Cayman Islands. DaCorta also under-reported his income on his 2017 federal income tax return, claiming a negative income and receiving a tax refund.

https://www.justice.gov/usao-edva/pr/chesterfield-man-convicted-scheme-embezzle-funds-law-firm-trust-account
After a jury trial in the United States District Court for the Eastern District of Virginia, Joshua Brian Romano was convicted on charges of conspiracy and wire fraud. Previously, Lindsey Epps Passmore pled guilty to conspiracy to commit wire fraud. As alleged in part in the DOJ Release, Romano:

owned various businesses that purchased, rehabilitated, and sold homes around Richmond. He funded this work via construction loans that were held in escrow in the trust account of a Chesterfield County law firm. The loans were earmarked for use by Romano only for the purchase of and rehabilitation of specific properties, and only with the lender's express approval for each disbursement. Acting at Romano's direction, Lindsey Epps Passmore, 39, a paralegal at the law firm, disbursed $1.2 million of a lender's funds held in trust for Romano's projects without receiving the lender's approval or by misleading the lender about how the funds were to be used. The funds were then used for purposes outside the scope of the agreements with the lender.   

Bill Singer's Comment: Well, that sure as hell avoids the hassle of a SPAC or private placement. 

Order Determining Whistleblower Award Claims ('34 Act Release No. 34-96129; Whistleblower Award Proc. File No. 2023-06)
https://www.sec.gov/rules/other/2022/34-96129.pdf
The SEC's Claims Review Staff ("CRS") issued a Preliminary Determination recommending that Claimant receive a Whistleblower Award for over $400,000. The Commission ordered that CRS's recommendations be approved. The Order asserts in part that:

[H]owever, a Section 36(a) waiver is appropriate under the unique facts and circumstances here, which include the following: (1) Claimant's information was submitted through an on-line Form TCR, thus satisfying Rule 21F-9(a); (2) while Claimant did not sign the whistleblower declaration he/she did sign the counsel certification; (3) Claimant completed the TCR under his/her counsel's name and notified his/her counsel after the fact; (4) counsel did not contest the validity of the TCR and has represented the Claimant throughout his/her interactions with the Commission and confirmed that he/she was aware of the Form TCR filing under his/her name; and (5) Claimant would be otherwise meritorious, as he/she expeditiously reported information about an ongoing offering fraud to the Commission, prompting the opening of the investigation and thereafter provided additional assistance to the Commission staff. 

Redacted

In coming to this conclusion, the Commission considered that Claimant, a prospective investor, expeditiously alerted Commission staff to an ongoing fraud, prompting the opening of the investigation. Rather than stay silent, Claimant immediately reported suspected wrongdoing to the Commission when presented with what he/she believed was false investor information and materials. Claimant also provided continuing assistance by supplying critical documents, participating in an interview with Commission staff, and giving testimony that advanced the investigation. 

Order Determining Whistleblower Award Claims ('34 Act Release No. 34-96128; Whistleblower Award Proc. File No. 2023-05)
https://www.sec.gov/rules/other/2022/34-96128.pdf
The SEC's Claims Review Staff ("CRS") issued a Preliminary Determination recommending that Claimant 1 receive a Whistleblower Award for over $1 million and that Claimant 2 receive a Whistleblower Award for over $500,000. The Commission ordered that CRS's recommendations be approved. The Order asserts in part that:

[I]n particular, Claimant 1's information caused the opening of the investigation that led to the Covered Action and formed the basis for the some of the findings in the Covered Action. Further, Claimant 1 provided additional information and assistance to the Enforcement staff through interviews in person and via telephone, along with internal Company documents. Accordingly, the CRS believes that a ***% award reflects Claimant 1's contributions to the success of the Covered Action. In contrast, Claimant 2 provided evidence of false statements by the Company's Redacted and provided significant information about the Company's internal processes. Claimant 2's information formed the basis for the some of the findings in the Covered Action. However, while Claimant 2 provided significant information, Claimant 2's information was indeed less significant vis-à-vis Claimant 1's information. This is because, as noted, Claimant 1 brought the operation of the scheme to the Commission staff's attention and assisted in the staff's understanding of the scheme as a whole. The award percentage also recognizes that Claimant 2 unreasonably delayed reporting to the Commission for over 30 months. Accordingly, we believe that a  *** % award strikes the appropriate balance between Claimant 2's assistance to the success of the Covered Action and Claimant 2's unreasonable reporting delay.

https://www.sec.gov/news/press-release/2022-189
The SEC filed two Orders against 
  • Mattel Inc. https://www.sec.gov/litigation/admin/2022/33-11122.pdf; and
  • former PricewaterhouseCoopers LLP ("PwC") partner Joshua Abrahams 
    https://www.sec.gov/litigation/admin/2022/34-96127.pdf 
As alleged in part in the SEC Release:

[M]attel understated the tax-related valuation allowance for the third quarter of 2017 by $109 million and overstated the tax expense for the fourth quarter of 2017 by the same amount. As a result, Mattel's third quarter and fourth quarter 2017 net loss and net loss per share were understated by 15% and overstated by 63%, respectively. In addition, the SEC's order finds that, at the time, Mattel had no internal control specifically related to calculating a valuation allowance. As explained in the order, until Mattel's November 2019 restatement, the $109 million tax expense error remained uncorrected, and the lack of internal control for financial reporting related to the error remained undisclosed. As alleged, neither Mattel's CEO nor audit committee was informed of the $109 million error.

The SEC's separate order against Abrahams alleges that he violated numerous professional standards in the third quarter 2017 interim review and the 2017 annual audit of Mattel's financial statements. According to the order, Abrahams failed to verify that the uncorrected $109 million error was documented, despite knowing of it, and failed to communicate the error to Mattel's audit committee. The order further alleges that Abrahams failed to maintain independence by providing prohibited human resource advice to Mattel, including suggesting to Mattel's then-CFO which candidate would be the best fit for a senior position at the company, as well as who should not be hired. The matter involving Abrahams will be scheduled for a public hearing before the Commission to decide if the Enforcement Division has proven the allegations in the order and what, if any, remedial actions are appropriate.

The SEC's order against Mattel finds that it violated the negligence-based antifraud provisions and the reporting, books and records, and internal controls provisions of the securities laws. Without admitting or denying these findings, Mattel agreed to a cease-and-desist order and to pay a $3.5 million civil penalty. The SEC's order also notes that, in determining to accept Mattel's settlement offer, the Commission took into account the company's cooperation with the SEC's investigation and its remediation.

SEC Obtains Judgments Against Three Defendants in a Microcap Fraud Scheme (SEC Release)
https://www.sec.gov/litigation/litreleases/2022/lr25563.htm
The United States District Court for the District of Massachusetts entered Final Judgments
https://www.sec.gov/litigation/litreleases/2022/order25563.pdf against Douglas Roe, Atlantean Management Corp., and Kelly Warawa. As alleged in part in the SEC Release:

[R]oe and Atlantean, along with defendants Warawa and Shane Schmidt, engaged in a fraudulent scheme to dump the securities of a microcap company, Sandy Steele Unlimited, Inc. Roe, Warawa and Schmidt allegedly used Atlantean and other defendant entities to secretly hold their shares of Sandy Steele and the other entities to sell the shares through a fraudulent business, operated by defendant Nelson Gomes, which concealed their identities while illegally dumping their stock into the public market. The complaint alleges that these illegal sales of Sandy Steele's stock were boosted by promotional campaigns that, in some instances, included false and misleading information designed fraudulently to capitalize on the COVID-19 pandemic, such as false claims that Sandy Steele could produce medical quality facemasks.

On October 20, 2022, the Court ordered Roe to pay a civil penalty of $248,435 and Atlantean to pay a civil penalty of $300,000. Previously, Roe, Atlantean and Warawa consented to the entry of final judgments on March 30, 2022, enjoining each of them from violations of Sections 5(a), 5(c) and 17(a)(1) and (3) of the Securities Act of 1933 and Section 10(b) of the Exchange Act of 1934 and Rules 10b-5(a) and (c) thereunder. The judgment against Warawa also imposed a five year penny stock bar and ordered her to pay disgorgement in the amount of $9,190 plus prejudgment interest in the amount of $362, and a civil penalty of $9,190. Further, on March 30, 2022, the Court ordered: (i) Roe to pay $548,435 in disgorgement plus prejudgment interest in the amount of $32,971 (of which $545,974 is joint and several with Atlantean); and (ii) Atlantean to pay disgorgement and prejudgment interest of $545,974, which is joint and several with Roe. The judgment against Atlantean also imposed a five year penny stock bar.

On July 13, 2021, the court entered a partial judgment by consent against the one remaining defendant, Shane Schmidt, which required him to pay disgorgement and prejudgment interest. . . .

Thank you, Ken [Bentsen]. As is customary, I'd like to note that my views are my own, and I'm not speaking on behalf of my fellow Commissioners or the SEC staff.

1933 was an important year in SEC history.

No, I'm not referring to the passage of the first federal securities law.

I'm not actually referring to the Securities and Exchange Commission at all.

I mean the other SEC: you know, the Southeastern Conference.

I'm sure, Ken, that you could've guessed that, being a Texan, though I think you've spent more time in Houston than College Station.

Fall sports are big in the SEC. Of course, those football games happen every weekend. As a long-distance runner, I'd like to give a shout out to the SEC cross country championships taking place on Friday at Ole Miss.

The Southeastern Conference was first formed in February 1933. That was a mere three months before Congress and President Franklin Delano Roosevelt enacted the Securities Act of 1933. About a year and a half later, they set up the slightly younger SEC - the one where I'm honored to work.

A Focus on Competition

What does the SEC have to do with the SEC?

Beyond our similar abbreviations and vintages, the two SECs share one big thing in common: a focus on competition.

Though it may seem less obvious than at the Southeastern Conference, competition is central to the Securities and Exchange Commission's remit, too.

This SEC was set up in 1934 to protect investors and act in the public interest. In 1975, largely to address fixed commissions and other anticompetitive practices by market intermediaries, Congress amended the Securities Exchange Act of 1934.[1] Literally, they added the word "competition" to the '34 Act - not once, not twice, but 20 times.

In 1996, Congress returned to the importance of competition. They mandated that in all of our rulemaking, the Commission must consider efficiency, competition, and capital formation, in addition to those earlier tenets of investor protection and the public interest. They didn't just amend the '34 Act, either. This new requirement applied to all of our foundational statutes and to rulemaking affecting all investors, issuers, and intermediaries.

Today, I'd like to zoom in on that principle of competition, and how it runs through each part of the SEC's mission.

Why Competition Matters

Why does competition in our capital markets matter?

The SEC's mission is to protect investors, facilitate capital formation, and maintain that which sits in the middle: fair, orderly, and efficient markets.

The whole economy benefits when there's greater competition among investors, issuers, and the intermediaries in the middle.

Competition increases returns for investors and lowers the cost of capital for issuers. It promotes innovation and efficiency in the middle of the markets. It helps capital markets more effectively price and allocate money and risk. It helps the U.S. maintain our global competitiveness. I think Congress understood that when they amended our laws in '75 and '96.

While we have projects designed to enhance competition across all three parts of our mission - investors, issuers, and intermediaries - today I'll primarily focus on how we can promote greater competition among the intermediaries in the middle of our markets.

The markets in the middle are almost like the neck of an hourglass. Let's visualize that for a minute.

Imagine grains of sand flowing through the hourglass every single day. The sand, in this analogy, is money and risk.

Financial intermediaries, like market makers, exchanges, and asset managers, sit at the neck of that hourglass, collecting a few grains in each transaction. With trillions of grains flowing through daily, a few grains of sand can really add up. Those grains may potentially become excess profits above what robust market competition would provide - also known as economic rents.

Today, the financial sector - including the capital markets the SEC oversees, as well as banking and insurance - represents about 8 percent of America's economy. That's grown significantly since 1975, when Congress passed those amendments. At that time, the sector had less than a 5 percent share of gross domestic product (GDP).[2]

In other words, finance has grown as a percentage of our economy despite the passage of the '75 and '96 amendments - not to mention the countless technological advancements that have lowered the cost of communicating and transacting elsewhere.

Centralization and Concentration

Since antiquity, finance has tended toward centralization and concentration - whether the Medici family back in the 15th century or J.P. Morgan a century ago.

There's a tendency for central intermediaries to benefit from scale, network effects, and access to valuable data.

Though technological innovations repeatedly disrupt incumbent business models, centralization still tends to reemerge.

For example, index funds, created by Jack Bogle in the 1970s,[3] allowed anybody to own the whole market, cheaply. Today, though, more than 80 percent of total net assets in U.S. registered investment company index funds are managed by just four asset managers.[4]

Similarly, the internet democratized many forms of information, including in finance, and thus facilitated lower-cost brokerage. Again, however, there's been growing centralization among equity market makers handling retail market orders, as I'll discuss later.

We've even seen centralization in the crypto market, which was founded on the idea of decentralization. This field actually has significant concentration among intermediaries in the middle of the market.

Thus, we must remain vigilant to areas where concentration and potential economic rents have built up, or may do so in the future.

The Tools

Faced with these natural tendencies in finance, the SEC draws upon a number of tools to fulfill Congress's vision regarding competition. I'll mention three such tools: transparency, access, and fair dealing.

Transparency addresses information asymmetries. It lowers some of the advantages of scale, network effects, and data as more people can see the information.

A second tool is access - importantly, not just for the biggest or most central players. Accessible markets bring in more competitors. Access increases innovation, as market participants seek new ways to compete.

Finally, there's fair dealing - or another way to put it, a fair playing field. Those SEC cross-country athletes all will run the same distance this weekend. It's important, as Aristotle put it, to treat like cases alike.[5]

Races also have rules to promote integrity. The runners, for example, can't trip their competitors.

Treating like market participants alike, and promoting market integrity, increases investor trust in the overall markets. It focuses participants' competition on price, service, and other key factors, rather than on whether the game is fair or the information is trustworthy.

Competition and Policy Projects

Now, I'd like to discuss how we are looking to apply these tools across the fixed income, equity, and private markets.

Fixed income

To begin, let me turn to the $55 trillion fixed income markets, and in particular our suite of projects designed to instill greater competition and resiliency in the $24 trillion Treasury market.[6]

First, we've proposed to require that all market participants that engage in important liquidity-providing roles, including in the Treasury market, register as dealers.

We've also proposed that significant Treasury market platforms, including interdealer brokers, come into compliance with Regulation ATS.

Why should other firms have to register while some firms currently don't?

Third, we've proposed broadening central clearing in both the cash and repurchase agreement (repo) markets for Treasuries.[7] Central clearing lowers risk in the system and increases access to more counterparties.

Fourth, we also have proposed three key reforms to better facilitate customer clearing in Treasuries.[8] Such increased accessibility, along with the proposed broadening of central clearing in U.S. Treasury markets, would help promote anonymized all-to-all trading, improving competition and resiliency.

Last, I also support consideration of work undertaken by the Financial Industry Regulatory Authority (FINRA) to bring greater post-trade transparency to both the Treasury market and the nearly $30 trillion non-Treasury fixed income markets.[9]

Equity markets


Next, let me turn to the equity markets.

We've made real progress since the days of fixed commissions back in 1975. While some might say that retail investors have never had it better, make no mistake: There are still a lot of costs in equity market trading. Zero commission doesn't mean zero cost.

An important segment of the equity market - where most retail market orders are executed - is off-exchange and tending toward centralization.

Today, retail market orders generally are not sent to lit exchanges, where buy and sell orders compete and can be matched. Instead, a significant portion of retail orders are sent to just a few large wholesalers. As a result, retail investors may not be getting the best prices possible.

Thus, I've asked staff to make recommendations for the Commission's consideration, using the available tools, around how to enhance competition in the equity markets. We haven't updated key aspects of our national market system rules, particularly related to order handling and execution, since 2005.

One area we're exploring is how to level the playing field between the dark market and the lit market.

Particularly, I've asked staff to explore the possibility of harmonizing the tick size across different market centers, whether a quote or trade is on-exchange or off-exchange.

In addition, I've asked them to make recommendations for the Commission's consideration around a potential SEC-level Best Execution rule. I've also sought recommendations around how to instill greater competition for retail market orders on an order-by-order basis, through auctions. With greater competition, more market participants would have access to these retail market orders.

I've also asked staff for recommendations around lowering the maximum fees exchanges can charge for access to protected quotes. Further, I've asked them to make recommendations around how we might update Rule 605 so that investors receive more useful disclosure about order execution quality.[10]

Private fund advisers


Finally, let me turn to private fund advisers. Private funds hold approximately $21 trillion in gross assets.[11] Given its relative growth, soon, this sector may surpass the U.S. commercial banking sector ($23 trillion) in size.[12]

Private fund advisers, through the funds they manage, touch so much of our economy. Often, private fund investors are retirement plans and endowments. The people behind those entities often are teachers, firefighters, municipal workers, students, and professors. On the other side, the people raising money from private funds might be startup entrepreneurs, small business owners, or the managers of late-stage companies.

Given that these funds touch so much of our economy, efficiency and competition among these intermediaries is important.

That's why I supported our recent proposal to require registered private fund advisers to provide detailed reporting to investors of fees, expenses, performance, and preferential treatment, such as side letters.[13] More competition and transparency could potentially bring greater efficiencies to this important part of the capital markets.

Conclusion

In sum, these projects are designed to lower the cost to issuers and raise the returns for investors, using the tools of transparency, access, and fair dealing to promote greater competition.

I discussed a few of our projects related to enhancing competition, but Congress' mandate on competition touches upon all of our work promoting our three-part mission.

I note that Congress's various mandates for the SEC to consider competition and efficiency didn't cabin our approach only to retail investors or only to one segment of our markets. They didn't leave out so-called sophisticated investors. I think they understood that our whole economy benefits when we drive greater competition throughout the capital markets, whether private fund advisers, the Treasury market, the equity market, or elsewhere.

I get that intermediaries, who make up a lot of the SIFMA membership, naturally would have questions and comments on policies designed to promote greater competition in our financial markets. We benefit from your feedback and input on our proposals.

Effectively, though, Congress directed us to have you all compete to benefit the public. Our clients are the 330 million people in our great nation. Americans benefit from more competition and efficiency in our markets.

Ultimately, I hope that competition is something we all can stand behind. I'm sure our friends at the other SEC would agree.

Thank you.

[1] See Securities Acts Amendments of 1975, available at https://www.govtrack.us/congress/bills/94/s249. Five objectives laid out by Congress in 11A of the Exchange Act (15 U.S.C. 78k-1): (1) economically efficient execution of securities transactions; (2) fair competition among brokers and dealers, among exchange markets, and between exchange markets and markets other than exchange markets; (3) the availability to brokers, dealers, and investors of information with respect to quotations and transactions in securities; (4) the practicability of brokers executing investors' orders in the best market; and (5) an opportunity, consistent with efficiency and best execution, for investors' orders to be executed without the participation of a dealer.

[2] See Paul Kiernan and Dave Michaels, "SEC's Gensler Aims to Save Investors Money by Squeezing Wall Street" (Oct. 5, 2021), available at https://www.wsj.com/articles/secs-gensler-aims-to-save-investors-money-by-squeezing-wall-street-11633426201.

[3] See Dan Culloton, "A Brief History of Indexing" (Aug. 9, 2011), available at https://www.morningstar.com/articles/390749/a-brief-history-of-indexing.

[4] Based on the most recent public N-CEN filings (which include a data field that identifies whether a fund is an index fund) and the most recent public N-PORT filings. Calculation for "index" funds based on funds who declare themselves as index funds on Form N-CEN.

[5] See "Remarks Before the Healthy Markets Association Conference" (Dec. 9, 2021), available at https://www.sec.gov/news/speech/gensler-healthy-markets-association-conference-120921.

[6] See statistics from Securities Industry and Financial Markets Association, available at https://www.sifma.org/resources/research/us-treasury-securities-statistics/

[7] See Gary Gensler, "Statement on Proposed Rules Regarding Treasury Clearing" (Sept. 14, 2022), available at https://www.sec.gov/news/statement/gensler-statement-treasury-clearing-0914222.

[8] Ibid. "First, the proposal would strengthen the Commission's rules for clearinghouses transacting trades in Treasuries, particularly with regards to gross and net margining. . . . Second, the proposal would change the broker-dealer customer protection rules to allow the customer margin that they collect to be onward posted to the clearinghouse, a process known as rehypothecation. . . . Finally, the proposal would require clearinghouses to have policies and procedures designed to ensure they facilitate access to clearing services for all eligible transactions, including for indirect participants, such as through the use of sponsored clearing."

[9] See Gary Gensler, "The Name's Bond" (April 26, 2022), available at https://www.sec.gov/news/speech/gensler-names-bond-042622.

[10] See Gary Gensler, "Market Structure and the Retail Investor" (June 8, 2022), available at https://www.sec.gov/news/speech/gensler-remarks-piper-sandler-global-exchange-conference-060822.

[11] This represents registered investment adviser (RIA) private fund gross asset value reported on Form ADV as of September 2022.

[12] See Board of Governors of the Federal Reserve System, "Assets and Liabilities of Commercial Banks in the United States," available at https://www.federalreserve.gov/releases/h8/current/default.htm. Total assets $22.6 trillion as of Oct. 5, 2022 (Table 2, Line 33).

[13] See Gary Gensler, "Statement on Private Fund Advisers Proposal" (Feb. 9, 2022), available at https://www.sec.gov/news/statement/gensler-statement-private-fund-advisers-proposal-020922.

In the Matter of Dennis David Karjala, Respondent (FINRA AWC 2021072708801)
https://www.finra.org/sites/default/files/fda_documents/2021072708801
%20Dennis%20David%20Karjala%20CRD%205918770%20AWC%20va.pdf
For the purpose of proposing a settlement of rule violations alleged by the Financial Industry Regulatory Authority ("FINRA"), without admitting or denying the findings, prior to a regulatory hearing, and without an adjudication of any issue, Dennis David Karjala submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. The AWC asserts that Dennis David Karjala was first registered in 2011; and from December 2019 to November 26, 2021, he was registered with LPL Financial LLC. In accordance with the terms of the AWC, FINRA imposed upon Karjala a $10,000 fine and a three-month suspension from associating with any FINRA member in all capacities. The AWC asserts in part that:

During August 2021, Respondent's firm customer (the "Customer") made an inquiry via text message about a mutual fund investment Respondent had recommended. In an August 2021 response, which Respondent sent to the Customer via text message using his personal cell phone, Respondent stated that he would give the Customer money to guarantee against any future losses in the investment. 

Therefore, Respondent violated FINRA Rules 2150(b) and 2010.
. . .

During August 2021, Respondent also sent the same Customer multiple text messages using his personal cell phone that violated the content standards of FINRA Rule 2210(d)(1)(B). For example, Respondent stated that a mutual fund in which the customer invested charged only an upfront fee, rather than any additional fees, even though the mutual fund charged ongoing fees. Additionally, Respondent stated that that the customer "already lost 30%" by holding cash, without providing a basis for calculation. In addition, Respondent stated that he was "certain" the customer would make "plenty of money" before retirement and that the customer's investment should "double." These statements were false, exaggerated, unwarranted, promissory and/or misleading. 

Therefore, Respondent violated FINRA Rules 2210(d)(1)(B) and 2010.
. . .

During the relevant period, LPL's written supervisory procedures required that representatives use an LPL-approved application when sending electronic communications related to the firm's securities business. However, as described above, during August 2021, Respondent exchanged text messages related to securities business with the Customer using his personal cell phone and outside of any LPL-approved application. Respondent did not provide copies of these communications to LPL. As a result, the firm did not capture or preserve these messages. 

Therefore, Respondent violated FINRA Rules 4511 and 2010.

In the Matter of Chad M. Koehn, Respondent (FINRA AWC 2021069470101)
https://www.finra.org/sites/default/files/fda_documents/2021069470101
%20Chad%20M.%20Koehn%20CRD%202216169%20AWC%20gg.pdf
For the purpose of proposing a settlement of rule violations alleged by the Financial Industry Regulatory Authority ("FINRA"), without admitting or denying the findings, prior to a regulatory hearing, and without an adjudication of any issue, Chad M. Koehn submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. The AWC asserts that Chad M. Koehn was first registered in 1992; and from 2004 to October 2020, he was registered with Stone Wealth Management Inc. In accordance with the terms of the AWC, FINRA imposed upon Koehn a $10,000 fine and a one-year suspension from associating with any FINRA member in all capacities. The AWC asserts in part that:

Between August 2020 and October 2020, while associated with SA Stone, Respondent participated in private securities transactions involving investments by at least 59 individuals ("Individuals") in Company A, a company that purported to own software development and blockchain technology businesses. Specifically, Respondent discussed the private placement offering of Company A's common stock with the Individuals, told the Individuals that Respondent intended to invest in Company A's private placement, introduced the Individuals to Company A's founder, and invited the Individuals to meetings that Respondent hosted, where the founder delivered presentations regarding Company A's business and the private placement. Subsequently, the Individuals, approximately 34 of whom were SA Stone customers, invested approximately $1,475,000 in Company A's stock. Respondent did not receive selling compensation. 

Respondent did not provide prior written notice to, or receive prior written approval from, SA Stone to participate in these transactions. 

Therefore, Respondent violated FINRA Rules 3280 and 2010.

FINRA Fines and Suspends Rep for Excessive Trading
In the Matter of Stephen James Sullivan, Respondent (FINRA AWC 2019061952601)
https://www.finra.org/sites/default/files/fda_documents/2019061952601
%20Stephen%20James%20Sullivan%20CRD%203123249%20%20AWC%20gg.pdf
For the purpose of proposing a settlement of rule violations alleged by the Financial Industry Regulatory Authority ("FINRA"), without admitting or denying the findings, prior to a regulatory hearing, and without an adjudication of any issue, Stephen James Sullivan submitted a Letter of Acceptance, Waiver and Consent ("AWC"), which FINRA accepted. The AWC asserts that Stephen James Sullivan was first registered in 1998; and from May 208 through December 2019, he was registered with SW Financial. The "Background" portion of the AWC asserts in part that [Ed: footnote omitted]:

In February 2016, Sullivan entered into a Letter of Acceptance, Waiver and Consent with FINRA (AWC No. 2014039219802) to resolve allegations that, while registered with another member firm, Sullivan exercised discretion in the accounts of two customers without obtaining prior written authorization from the customers and without the approval of these accounts for discretionary trading by his member firm. Sullivan was suspended in all capacities for 10 business days and fined $5,000. 

In October 2019, Sullivan and SW Financial entered into a settlement with a customer to resolve the customer's written complaint alleging that, while registered with SW Financial, Sullivan engaged in excessive trading, unauthorized trading, unsuitable transactions, fraud, negligence, breach of contract, and breach of fiduciary duty. Sullivan contributed $14,999 to the $39,998 settlement payment to the customer. 

In December 2021, another member firm entered into a settlement with a customer to resolve the customer's arbitration claim alleging that, while registered with the member firm, Sullivan engaged in excessive trading, unauthorized trading, unsuitability, breach of contract, breach of fiduciary duty, and negligence. Sullivan did not contribute to the firm's $30,000 settlement payment to the customer.

In accordance with the terms of the 2022 AWC, FINRA imposed upon Sullivan a $10,000 fine, $49,696 restitution, and a nine-month suspension from associating with any FINRA member in all capacities. The AWC asserts in part that:

From May 2018 through November 2019, Sullivan engaged in quantitatively unsuitable trading in four accounts of three customers. Sullivan recommended a pattern of high-cost, high-frequency, in-and-out trading in these customers' accounts. Sullivan's customers routinely followed his recommendations and, as a result, Sullivan exercised de facto control over the customers' accounts. 

From June 2019 to October 2019, Sullivan effected 33 trades in Customer A's account, resulting in a turnover rate of 20.45 and a cost-to-equity ratio of 76.55%. Sullivan's trading in Customer A's account generated total trading costs of $14,317, including $11,859 in commissions, and caused $621 in realized losses. 

From October 2018 to June 2019, Sullivan effected 45 trades in Customer B's first account, resulting in a turnover rate of 30.4 and a cost-to-equity ratio of 135.11%. Sullivan's trading in Customer B's first account generated total trading costs of $15,464, including $12,604 in commissions, and caused $19,125 in realized losses. 

From August 2018 to June 2019, Sullivan effected 37 trades in Customer B's second account, resulting in a turnover rate of 19.28 and a cost-to-equity ratio of 55.19%. Sullivan's trading in Customer B's second account generated total trading costs of $7,344, including $5,077 in commissions. This account had $343 in realized gains over this period. 

From May 2018 to August 2019, Sullivan effected 32 trades in Customer C's account, resulting in an annualized turnover rate of 12.93 and an annualized cost-to-equity ratio of 42.61%. Sullivan's trading in Customer C's account generated total trading costs of $12,572, including $10,456 in commissions, and caused $53,074 in realized losses. 

Sullivan's trading in these three customers' accounts was excessive and unsuitable given the customers' investment profiles. As a result of Sullivan's excessive trading, the customers suffered collective realized losses of $72,476, while paying total trading costs of $49,696, including commissions of $39,996. 

Therefore, Sullivan violated FINRA Rules 2111 and 2010.