(4). SEC to seek fiduciary standard for broker-dealers
The conventional wisdom is that Trump appointees will remove, rather than add, new regulatory requirements, but there are a few critical areas that belie this expectation. For example, Jay Clayton, chairman of the Securities and Exchange Commission, has expressed a strong commitment to tackle the fiduciary standard for brokers in 2018. The Department of Labor recently delayed until mid-2019 the implementation of key provisions of its fiduciary rule that applies to transactions with retirement account clients. The delay provides breathing room for coordination on a consistent approach by the two agencies. Look for possible complications, however, due to the arrival of two new commissioners at the SEC this year, each of whom may have very different views of the necessity and impact of moving from a suitability to a fiduciary standard for brokers.
(5). More enforcement actions related to virtual currencies
We expect the explosion of public interest in the trading of virtual currencies and virtual-currency-related products to continue. US regulators spent much of the second half of 2017 actively focused on these products and the regulatory issues they raised. The SEC, CFTC and state regulators all warned the public of the potential risks of trading in these products. While agencies brought enforcement actions in instances of clear fraud or manipulation, for the most part their efforts have been focused on clarifying the scope of their authority and the application of their regulations to these activities. We believe this approach is likely to shift very quickly and sharply as the regulators pivot to an enforcement mode. Market participants, particularly those involved in offering or selling unregistered securities or who deal in these products without the necessary licences, will be much more likely to face enforcement action than in the past.
The Trump administration on Wednesday abandoned its defense of the Securities and Exchange Commission’s in-house judicial system, siding with opponents who say the hiring process for the SEC’s judges is unconstitutional. In a brief filed with the U.S. Supreme Court, lawyers for the Justice Department wrote they now consider the SEC’s administrative law judges to be officers like other presidential appointees, instead of employees who are picked through a human-resources process. That means the way the SEC hires the judges may violate a constitutional clause that safeguards separation-of-powers principles.
The Justice Department’s brief didn’t explicitly describe the judges’ appointments as unconstitutional, but said the selection process for the in-house judge at issue in the case “did not conform” to a constitutional requirement. Mark Perry, a partner at Gibson, Dunn & Crutcher LLP who represented the challengers, said the Supreme Court’s involvement is still needed to resolve a disagreement between lower courts over the judges’ status. The Supreme Court would have to appoint an outside party to argue the case since the Justice Department has turned its back on defending it, the brief says. “We are one step closer to victory,” Mr. Perry said Wednesday.
The SEC didn’t sign the Justice Department’s brief. The regulator likely felt it couldn’t join the position because SEC commissioners have previously issued opinions in contested cases stating that judges are employees, not officers, said Andrew Vollmer, a professor at the University of Virginia School of Law and a former deputy general counsel of the SEC. An SEC spokesman declined to comment.
Clayton is a partner at Sullivan & Cromwell, a well-known law firm, and has represented some of the biggest names on Wall Street, including Goldman Sachs, and helped them weather regulatory scrutiny. He also has helped large companies raise money through an initial public offering, including Alibaba, a Chinese retail giant that held one of the largest IPOs in history. But, according to the biography on the Sullivan & Cromwell website, Clayton has not held any government positions and has never served as a prosecutor.
Yet Mr. Clayton’s nomination will be sure to fuel criticism that Goldman Sachs could wield too much influence in the Trump administration. Sullivan & Cromwell, where Mr. Clayton is a partner, has been Goldman’s go-to law firm for more than a century. Mr. Clayton advised Goldman Sachs on perhaps its most important deal, the $5 billion investment by Warren E. Buffett’s Berkshire Hathaway amid the financial crisis. Mr. Clayton’s wife works as a private-wealth adviser at Goldman.
via DealLawyers, Sullivan & Cromwell
Given the importance of economic analysis to its work, I commend the Board for adopting formal guidance on the subject. Like the SEC’s own internal guidance on conducting economic analysis, the PCAOB’s guidance on rulemaking recognizes four main elements: (1) the need for the rule, (2) the baseline for measuring the rule impacts, (3) the alternatives considered, and (4) the economic impacts of the rule and alternatives. With respect to the last point, there are consequences when rules are adopted – some intended, others not. It is the latter set of consequences, the unintended consequences, for which a robust economic analysis can particularly helpful. …
Myth 1: “Economic analysis” and “cost-benefit analysis” are the same thing …
Myth 2: Economic analysis in rulemaking just slows down the rulemaking process …
Myth 3: Economic analysis is a partisan political issue …
Myth 4: Economic analysis is only relevant to rulemaking …
Myth 5: Economic analysis is only a fad … (footnote omitted)
See also Staff of the U.S. Securities and Exchange Commission, Current Guidance on Economic Analysis in SEC Rulemakings (Mar. 16, 2012).
仕事中にPaul Dudek氏とのやり取りを垣間見る機会があり、それをメモにとっていた頃を思い出します。弁護士だけでなく、日本企業の担当者でもお世話になった方は、多いのではないでしょうか。証券取引委員会を退職した後は、Latham & Watkinsに勤務するようです。
Sarah C. Haan, Shareholder Proposal Settlements and the Private Ordering of Public Elections
… As a form of private electoral regulation, the proposal settlement mechanism raises issues of democratic transparency, participation, accountability, and enforcement. This Article challenges the characterization of proposal settlements as “voluntary” corporate self-regulation, provides a framework for understanding settlement-related agency costs, and shows how settlement subverts the traditional justifications for the shareholder proposal itself. Solutions that address the democratic and corporate governance problems of settlement largely overlap, suggesting a path forward.