SEC Speaks: Agency Takes Back-To-Basics Approach In Face Of Changing Leadership, Congressional Mandates And New Technologies

by Perkins Coie
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The annual “SEC Speaks” conference, in which Securities and Exchange Commission (SEC) representatives review the agency’s efforts over the past year and preview the year to come, was held on February 22-23, 2013.  A back-to-basics “investor protection” theme emerged from this year’s conference, as the SEC reposts in the wake of Chairman Mary Schapiro and Enforcement Director Robert Khuzami departing.  The SEC announced enforcement initiatives to police a wide range of investment vehicles, from exchange traded products to “crowdfunding.”  It also took aim at emerging sources of potential market instability, including the dramatic increase of new trading venues and high-speed electronically based trading platforms.  Other themes emphasized this year included adapting enforcement tools to better monitor evolving capital markets, expanding the SEC’s partnership with other domestic and foreign regulatory agencies, and implementing congressional directives in the Dodd-Frank Act and Jumpstart Our Business Startups (JOBS) Act.

This Update highlights key topics from this year’s SEC Speaks. 

Chairman Walter’s Opening Remarks

The SEC’s interim Chairman Elisse B. Walter opened the program by emphasizing the agency’s role in both promoting an innovative yet stable economy on the macro level while protecting individual investors on the micro level.  Walter noted the importance of recent “increased prudential regulation of systematically important financial institutions,” but cautioned that “we don’t want to discourage all risk-taking.”  She observed that the government “should embrace a regulatory agenda that is consistent with the continued growth of public offerings” and emphasized the importance of small start-up companies to the economy.

Walter also touched on a number of themes that were repeated throughout the program, such as the SEC’s use of proprietary algorithms and whistleblower complaints to detect fraud, the regulation of exchanges that are becoming more technologically complex and the protection of the ordinary investor whose retirement savings hinges on a trustworthy market. 

Enforcement Update

Prioritizing in an Era of Evolving Technology and Limited Budgets

After another busy year for the Division of Enforcement, its management highlighted its recent successes and evolving strategies.

David Bergers, the acting deputy director of Enforcement, commented on the increasing importance of computer technology to detect and prevent fraud.  He noted that the SEC utilizes a forensic lab that mines data to detect “outliers” in trading activity for potential investigation.  Because the SEC’s resources are limited, these automated tools enable it to monitor much more activity than it could otherwise cover with manpower alone. 

Miami Regional Director Eric Bustillo noted, however, that in light of the SEC’s limited resources, cooperation from the private sector and other entities that the SEC regulates is of vital importance to the SEC’s mission.  He pointed out that in the past year, a number of entities initiated internal investigations promptly, disclosed securities law violations to the SEC and then fully cooperated with the SEC’s own investigation.  These were significant factors that SEC staff took into account when recommending that the SEC enter into non-prosecution or deferred prosecution agreements, rather than commencing an enforcement action.  In light of the increased volume of leads coming to light through the SEC’s use of automated tools, such cooperation should play an increasing role in shaping which matters the SEC chooses to pursue.

George Canellos, the acting director of the Enforcement, observed that the SEC is utilizing powerful specific conduct injunctions to prevent ongoing fraud rather than the more general “obey the law” injunctions that it has traditionally sought.  Canellos said that the SEC continues to examine ways in which it can invoke a court’s broad equitable authority to prevent future frauds and market manipulation.

But as the SEC has itself acknowledged before, its ability to regulate any new areas, or utilize any new tools in its arsenal is limited by the budgetary constraints being imposed government wide.  As Walter stated recently, the SEC “does not yet have all the resources necessary to fully implement the 2010 Dodd-Frank Wall Street reform law” and if the SEC does not receive additional resources, “many of the issues to which the Dodd-Frank Act is directed will not be adequately addressed.”  These budgetary concerns are all the more real for the SEC, along with other regulators, as sequestration (automatic across-the-board budget cuts) looms on the near horizon—kicking in as early as March 1, 2013.

Whistleblower Tips Continue to Roll In

Jane Norberg, deputy director of the Office of the Whistleblower, reported that in 2012 the SEC received 3,001 whistleblower tips, both from foreign and domestic sources.  The most common reports regarded corporate disclosures, fraud in securities offerings and market manipulation.  Although some whistleblowers are represented by counsel, many tips come in through the SEC’s whistleblower “hotline.”  

Norberg advised that companies should be more cognizant of the anti-retaliation provisions of the whistleblower laws.  The SEC has observed that in some instances, companies have required employees to sign confidentiality agreements that appear to bar an employee from becoming a whistleblower, despite the fact that the Dodd-Frank Act prohibits regulated entities from taking any action to impede employees from making whistleblower complaints.  Norberg says that she expects to continue working closely with whistleblowers and their counsel in 2013.

Insider Trading

Sanjay Wadhwa, the senior associate director of Enforcement in the SEC’s New York office, noted that insider trading is still a high-priority area.  Since the Raj Rajaratnam prosecution, the SEC has brought 175 enforcement actions alleging insider trading against 435 defendants involving illicit profits in the neighborhood of $900 million.  Wadhwa noted that hedge fund insider trading will continue to take up much of the SEC’s attention as the Galleon, and related expert network investigations, have revealed a “treasure trove of information.”

Wadhwa also commented on the SEC’s recent emergency action asset freeze of a Swiss Goldman Sachs account in which unknown traders are suspected of insider trading in connection with the Heinz merger announcement, believed to have potential profits of $1.5 million.  Minutes before Wadhwa spoke, a federal judge granted the SEC’s asset freeze motion, as the unknown defendants who allegedly traded in the Swiss account failed to appear in court.  Wadhwa explained that the SEC will continue to aggressively litigate actions in which suspicious trading is observed in offshore accounts and request asset freezes to preserve the status quo while the SEC investigates.

Optimism About SEC v. Citigroup Appeal

Several SEC speakers commented on recent oral arguments in the U.S. Court of Appeals for the Second Circuit, where the court will decide whether Judge Rakoff of the U.S. District Court for the Southern District of New York properly refused to enforce an SEC settlement and consent decree with Citigroup.  Specifically, Judge Rakoff ruled that because Citigroup did not admit any of allegations in the consent decree, and the agreement failed to specifically identify sufficient facts, he could not approve the settlement as being in the public interest.  SEC speakers noted, however, that the lower court’s decision ran counter to years of agency settlements and that future defendants could simply refuse to settle if admissions were mandatory, due to the impact those admissions might have in follow-on civil suits or parallel criminal proceedings.  SEC speakers noted that even the attorney that the court appointed to support the district court’s decision did not argue that admissions were required for a settlement to be approved, as the district court itself had implied.  SEC speakers appeared optimistic that the Second Circuit would reverse Judge Rakoff so that the Citigroup settlement could be approved, leaving the SEC and other defendants with greater flexibility in future settlements. 

Focusing on Emerging Trading Technologies

Several SEC speakers commented on the impact of new technologies on their regulatory efforts, particularly the growth of electronic trading centers and high-frequency trading.  To keep pace with these developments, the SEC utilizes proprietary algorithms to detect irregularities in both market trading and SEC filings, and has hired a number of industry experts, including former fund managers. 

Commissioner Luis Aguilar commented on the large number of trading centers that rely on fully electronic automated technology to execute trades, which has dramatically increased trading volume in recent years.  He noted that equities are now traded across 13 such national (electronic) trading exchanges, with no single exchange holding a volume over 20% of the consolidated volume for all National Market System stocks.  Daniel Hawke, the regional director of the Philadelphia Market Abuse Unit, commented that self-regulatory organizations that oversee the exchanges perform a “gatekeeping” function to ensure stability and fairness in trading.  But Aguilar noted that the two-day halt in stock trading that occurred because of Hurricane Sandy was unacceptable and electronic exchanges must have business continuity plans that they are prepared to implement in the face of natural disasters or other disruptions.

In the wake of the May 2012 “flash crash,” the SEC continues to monitor traders using high-frequency trading strategies.  Specifically, the SEC is using a new analytics tool dubbed “MIDAS” (Market Information Data and Analytics System) that allows the SEC to collect and process all information coming from the 13 national exchanges in real time.  MIDAS also enables the SEC to pinpoint specific trading techniques implemented by high-frequency traders and link the trades to subsequent “flash crashes” or market manipulation. 

Creating a Regulatory Framework for Crowdfunding

The JOBS Act of 2012 brought “crowdfunding” (in which emerging companies raise capital on the Internet from numerous investors making small contributions) into the SEC’s focus for the coming year as well.  Title III of the JOBS Act provides certain regulatory exemptions for crowdfunding and Internet “funding portals” that facilitate such transactions.  The JOBS Act prohibits the portal from taking possession of funds or making investment recommendations.  SEC speakers nonetheless indicated that they may revisit the rule on what constitutes “investment advice” so that portals can keep fraudulent dealers off their website without appearing to recommend any particular dealers.  The JOBS Act also provides a more limited disclosure framework for companies that receive investments from funding portals, which will need to be fine-tuned in 2013.  The SEC’s Trading and Markets Division and the Financial Industry Regulatory Authority (FINRA) will both take on monitoring roles to ensure that start-up companies and their funding portals comply with this new regulatory framework.

Increasing Partnerships With Other Regulatory Agencies

A repeated theme during the conference was the SEC’s relationship with other government agencies, both foreign and domestic.  SEC speakers emphasized the benefits of such partnerships and the value of sharing information with other regulatory entities on areas of common concern.  The most frequently mentioned partners were the Commodity Futures Trading Commission (CFTC), which has been given expanded authority under Dodd-Frank, and FINRA, which monitors self-regulatory organizations, broker dealers and insider trading. 

In addition, the SEC has partnered with several international organizations on enforcement efforts.  The SEC’s Office of International Affairs (OIA) has been working with its international counterparts as foreign regulators become more aggressive.  For instance, Alberto Arevalo, assistant director for OIA Enforcement, noted that Japan has ramped up its insider trading enforcement and Japanese regulators work closely with the SEC on international securities fraud matters.

But not all inter-agency partnerships were viewed as positively.  SEC Commissioner Daniel Gallagher criticized the Dodd-Frank Act as a threat to the SEC’s independent rule-making function because of its highly prescriptive directives and tight rule-making deadlines.  Gallagher encouraged the SEC to take a leadership role implementing the Volcker Rule in its partnership with the Federal Reserve, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation and the CFTC.  Gallagher argued that the Volcker Rule falls within the SEC’s core competencies, and that it is the SEC’s responsibility to balance bank regulator objectives with the SEC’s mission to protect the markets and investors alike.

Gallagher also criticized the Financial Stability Oversight Council (FSOC), established by Title I of the Dodd-Frank Act.  FSOC was created to promote coordination among financial service regulators (including the SEC), and to identify and monitor excessive risks in the U.S. financial system.  Gallagher argued that FSOC, which is chaired by the secretary of the Treasury, is making complex rules in areas that are within the SEC’s particular area of expertise, such as money market funds and broker dealer net capital rules.  Because FSOC is dominated by the heads of banking regulatory agencies, Gallagher fears that it may put too much emphasis on “safety and soundness” and inhibit the “inherently risky” capital markets.  In addition, because the voting members are appointed and removed by the president, Gallagher argued that FSOC may be subject to improper political influence.   

Other Rulemaking Updates

SEC speakers did not provide any hints on when proposed rulemaking for the Dodd-Frank Act and the JOBS Act would be completed.  Management from the Trading and Markets Division noted that Dodd-Frank Act swap dealer rules will require additional edits that the SEC is preparing.  In addition, new “circuit breaker” rules, in which trading could be shut down in a specific stock if trading activity falls outside a certain band of volatility, are expected to be implemented in the next several months.

Commissioner Troy Paredes gave a broad policy speech in which he noted that today’s investors are subject to “information overload” and volumes of corporate disclosures which are counterproductive.  He said that corporations often disclose nonmaterial information as a prophylactic measure, and that the SEC should consider a “top to bottom review of the disclosure regime” to ensure that information is more digestible and understandable to the ordinary investor.  But this year’s conference made clear that the SEC had enough on its plate complying with recent congressional legislation and that other sweeping reforms were not realistic in the foreseeable future. 

Conclusion

The SEC is in a period of transition as it awaits confirmation of recently nominated Chairman Mary Jo White.  But the priorities and challenges the SEC will face in the year ahead are clear.  Legislative, technological and international developments have made it necessary for the SEC to adapt its traditional regulatory regime.  The SEC is still catching up on numerous new congressional directives in the shadow of the financial crisis, but seems eager to get back to its historical mission of promoting a robust and stable market while protecting the ordinary investor.  However, regardless of how its role expands, either voluntarily based on its self-directed goals or forcibly due to legislation, it will have to overcome budgetary constraints that are also sure to be a permanent fixture of the regulatory landscape.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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