What Chairman Jay Clayton’s Resignation Could Mean for Future of Financial Regulation

On November 16^th, 2020 Securities and Exchange Commission (“SEC”) Chairman, Jay Clayton announced he will be stepping down from his position at the end of 2020[1]. The Chairman’s announcement comes as no surprise, mainly due to Joe Biden’s presidential victory. SEC chairs typically step down when there is a new president elect[2]. (Former Chair Mary Jo White stepped down in 2016 after current President Donald Trump’s election[3] and former Chair Mary Schapiro resigned in 2012 after former President Barack Obama’s election.[4]) President-Elect Joe Biden is likely to nominate a new chairman before his inauguration on January 20^th, 2021.

SEC Commissioner, Allison Lee is positioned to become the acting Chair until President Biden appoints a replacement for Jay Clayton[5]. Possible appointments include former SEC commissioner Kara Stein, Former commissioner Rob Jackson, Preet Bharara, a former United States attorney for the Sothern District of New York, Maxine Waters head of the House Financial Services Committee and, Gary Gensler who is currently leading the financial policy transition team for the future Biden administration[6].  

An appointment of a democratic chair will create a democratic majority within the commission. Historically, democratic members of the SEC rely heavier on enforcement than their republican counterparts. Gary Gensler, for example, aggressively implemented regulations such as the Dodd-Frank Act during his tenure as chairman of the Commodities Futures Trading Commission (“CFTC”)[7]. The appointment of a democratic chair within the SEC will result in increased enforcement and investigations.

The main question lies in where the priorities of enforcement will be.  Over the previous 3-years, the SEC commission focused more on deregulation and lowering business costs[8].  A democratic commission will possibly shift focus onto increased regulation, specifically on private markets. Additionally, environmental, social, and corporate governance (“ESG”) disclosures are likely to become a larger part of SEC enforcement in a democratic commission, particularly regarding environmental disclosures. Democratic Commissioner Allison Herren-Lee has advocated for standardized reporting for public companies regarding their climate risk[9] efforts which could lead to another amendment to Regulation S-K. Regulation Best Interest and Shareholder Proxy Voting are both expected to come under review with a democratic commission[10]. While these are just theories about what could potentially happen, it is still not for certain. When a new chair is nominated and confirmed, we will have a better idea of what to expect from the SEC. Here at Cosgrove Law Group, LLC we will keep an eye on future changes within the SEC and CFTC.

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[1] Sorkin, A., Karaian, J., Merced, M., Hirsch, L., & Livni, E. (2020, November 16). Trump's S.E.C. Chairman Is Stepping Down. Retrieved November 30, 2020, from https://www.nytimes.com/2020/11/16/business/dealbook/clayton-sec-stepping-down.html 

[2] Cox, J. (2020, November 16). Jay Clayton says he will step down early as head of the SEC at the end of 2020. Retrieved November 30, 2020, from https://www.cnbc.com/2020/11/16/jay-clayton-says-he-will-step-down-early-as-head-of-the-sec-at-the-end-of-2020.html 

[3] Merle, R. (2019, March 28). SEC chair to step down, clearing path for Trump to eliminate tough Wall Street regulations. Retrieved November 30, 2020, from https://www.washingtonpost.com/news/business/wp/2016/11/14/sec-chair-to-step-down-clearing-path-for-trump-to-eliminate-tough-wall-street-regulations/ 

[4] Press Release. (2012, November 26). Retrieved November 30, 2020, from https://www.sec.gov/news/press-release/2012-2012-240htm 

5 Schroeder, P., Price, M., & Johnson, K. (2020, November 27). Factbox: The top contenders to run Biden's financial agencies. Retrieved November 30, 2020, from https://www.reuters.com/article/us-usa-biden-wallstreet-regulators-factb/factbox-the-top-contenders-to-run-bidens-financial-agencies-idUSKBN28716L 

[6] Schroeder, P., Price, M., & Johnson, K. (2020, November 27). Factbox: The top contenders to run Biden's financial agencies. Retrieved November 30, 2020, from https://www.reuters.com/article/us-usa-biden-wallstreet-regulators-factb/factbox-the-top-contenders-to-run-bidens-financial-agencies-idUSKBN28716L

 [7] Miedema, D. (2014, January 03). Swaps regulator Gensler: Banker turned Wall Street scourge. Retrieved December 01, 2020, from https://www.reuters.com/article/us-financial-regulation-gensler/swaps-regulator-gensler-banker-turned-wall-street-scourge-idUSBREA020OC20140103 

[8] Zanki, T. (2020, October 20). 4 Ways A Biden Election Could Swing SEC Priorities. Retrieved December 01, 2020, from https://www.law360.com/articles/1319347 

[9] Pisani, B. (2020, November 12). What a Democrat-controlled SEC might look like and what it would mean for markets. Retrieved December 01, 2020, from https://www.cnbc.com/2020/11/11/what-a-democrat-controlled-sec-might-look-like-and-what-it-would-mean-for-markets.html 

[10] Rasmussen, P., & Tehrani, P. (2020, November 7). ANALYSIS: Four Spots Biden Is Likely to Reverse SEC Deregulation. Retrieved December 01, 2020, from https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-four-spots-biden-is-likely-to-reverse-sec-deregulation

 AUTHOR: Julianna M. Ness

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REGULATION BEST INTEREST A MONTH AFTER REPLACING SUITABILITY LOOKING AT STANDARD

As of June 30, 2020, broker-dealers are required to be in compliance with the new Regulation Best Interest (“Reg BI”) standard of conduct. Firms were given one year to mold their compliance apparatus, train representatives, draft policies, and implement procedures to fit the heightened standard. However, anyone working in corporate compliance or project management understands that implementing change on a company wide scale in such a short time is an enormous task.  Now that the new standard has been in effect for a month, we believe it is important to highlight some aspects of the Reg BI standard which may have been overlooked when overhauling a firm’s compliance systems. 

Reg BI replaces the suitability standard and sets out more robust investor protections than had been required under suitability. 

§240.15l-1   Regulation best interest.

(a) Best interest obligation. (1) A broker, dealer, or a natural person who is an associated person of a broker or dealer, when making a recommendation of any securities transaction or investment strategy involving securities (including account recommendations) to a retail customer, shall act in the best interest of the retail customer at the time the recommendation is made, without placing the financial or other interest of the broker, dealer, or natural person who is an associated person of a broker or dealer making the recommendation ahead of the interest of the retail customer.

 

Reg BI goes on to enumerate four obligations which must be satisfied when making any security or investment recommendation. Broadly speaking, those obligations are: 1) Disclosure- written disclosure of material facts relating to the scope of the relationship including fees, limitations on securities investments^[1]; 2) Care- suitability on steroids^[2]; 3) Conflict- identification, disclosure, and/or mitigation of incentives, limitations, and conflicts which may exist; and 4) Compliance- maintenance and enforcement of written policies and procedures designed to achieve compliance with Reg BI. 

Over the past year, broker-dealers should have received training on each of these obligations and firms’ compliance departments should have implemented the use of new forms to document their adherence. However, given the deluge of new forms broker-dealers are using to evidence compliance, two of the most important differences between suitability and Reg BI may have gone overlooked. 

Reg BI requires that a broker-dealer act in the customer’s best interest at the time the recommendation is made. Under the new standard, “recommendation” will be interpreted broadly and even includes instances where a recommendation is made but the customer does not execute the order.^[3] 

Reg BI also defines “retail customer” more broadly than it was defined under the suitability standard. Under the suitability standard, certain high net worth individuals could be treated as institutional investors rather than retail customers if certain other circumstances applied. Thus changing the applicability of the suitability analysis. However, that is not the case under Reg BI: any “natural person” regardless of their wealth or accredited investor status is a “retail customer”. It should also be noted that there is no de minimus exception. So, in any instance that a broker-dealer makes a recommendation to a natural person for their personal, household or family use, Reg BI applies. 

Now that Reg BI is in effect, FINRA expects all firms and broker-dealers to be in compliance. However, even firms giving their best efforts may fall short of full Reg BI compliance. The attorneys at Cosgrove Law Group, LLC have decades of experience interpreting securities regulations, auditing firm compliance, and responding to regulatory investigations. If there is any doubt as to whether your firm has met its Reg BI obligations, it may be time to contact experienced securities counsel to navigate the regulatory landscape.

Author: Max Simpson

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^[1] Reg BI also creates an obligation to make supplemental oral disclosures for topics not covered in forms which would create a conflict given the specific circumstance. Best practice is to follow oral disclosure with written disclosure to memorialize that the disclosure did in fact occur.

^[2] Of course this is an oversimplification of Reg BI’s care standard which deserves its own separate blog. Suffice it to say, the obligation of care is robust.

^[3] FINRA UNscripted, EP63, Regulation Best Interest: Implementing a New Standard of Conduct, July 7, 2020.