Chairman’s Address at SEC Speaks 2014
Chair Mary Jo White
Washington, D.C.
Feb. 21, 2014
Good
morning. I am very honored to be giving the welcoming remarks and to
offer a few perspectives from my first 10 months as Chair. Looking back
at remarks made by former Chairs at this event, the expectation seems
to be for me to talk about the “State of the SEC.” I will happily
oblige on behalf of this great and critical agency.
In
1972, 42 years ago at the very first SEC Speaks, there were
approximately 1,500 SEC employees charged with regulating the activities
of 5,000 broker-dealers, 3,500 investment advisers, and 1,500
investment companies.
Today
the markets have grown and changed dramatically, and the SEC has
significantly expanded responsibilities. There are now about 4,200
employees – not nearly enough to stretch across a landscape that
requires us to regulate more than 25,000 market participants, including
broker-dealers, investment advisers, mutual funds and exchange-traded
funds, municipal advisors, clearing agents, transfer agents, and 18
exchanges. We also oversee the important functions of self-regulatory
organizations and boards such as FASB, FINRA, MSRB, PCAOB, and SIPC.
Only SIPC and FINRA’s predecessor, the NASD, even existed back in 1972.
Today
the agency also faces an unprecedented rulemaking agenda. Between the
Dodd-Frank and JOBS Acts, the SEC was given nearly 100 new rulemaking
mandates ranging from rules that govern the previously unregulated
derivatives markets, impose proprietary trading restrictions on many
financial institutions, increase transparency for hedge funds and
private equity funds, give investors a say-on-executive pay, establish a
new whistleblower program, lift the ban on general solicitation, reform
and more intensely oversee credit rating agencies, and so many others.
These rulemakings, coupled with the implementation and oversight effort
that each one brings, have added significantly to our already extensive
responsibilities and challenge our limited resources. These mandates
also present the risk that they will crowd out or delay other pressing
priorities. But we must not let that happen.
All
of this is upon us at a time when our funding falls significantly short
of the level we need to fulfill our mission to investors, companies,
and the markets. As Chair, I owe a duty to Congress, the staff, and to
the American people to use the funds we are appropriated prudently and
effectively. But it also is incumbent upon me to raise my voice when
the SEC is not being provided with sufficient resources. The SEC is
deficit neutral. Our appropriations are offset by modest transaction
fees we collect from SROs. What does that mean? It means that if
Congress provides us with increased funding, it will not increase the
budget deficit or take resources from other programs or agencies, but it
would go directly to protecting investors and strengthening our
markets. Given the critical role we play for investors and our expanded
responsibilities, obtaining adequate funding for the SEC is and must be
a top priority.
Fortunately,
what has remained a constant over the years at the SEC is its
magnificent and dedicated staff. Indeed, it was the commitment,
expertise, and moral, apolitical compass of the staff that led me here.
The SEC staff is a deep reservoir of extraordinary talent and expertise
with a strong and enduring commitment to public service and
independence. And that is what has sustained the excellence of this
agency since its founding.
Exercising
my prerogative as Chair, I would now like to ask each SEC employee in
the audience to stand and be recognized. Please remain standing while I
ask that everyone here today who once worked at the SEC to please also
stand to be recognized. In our most challenging moments, I urge all of
us to think about the colleagues we just recognized, marvel at their
public service and say thank you.
Back to the state of the SEC in 2014.
When
I arrived at the SEC last April, I initially set three primary
priorities: implementing the mandatory Congressional rulemakings of the
Dodd-Frank and the JOBS Acts; intensifying the agency’s efforts to
ensure that the U.S. equity markets are structured and operating to
optimally serve the interests of all investors; and further
strengthening our already robust enforcement program. Ten months later,
I am pleased with what we have accomplished.
Rulemaking
When
I arrived, it was imperative to set an aggressive rulemaking agenda.
Congress had seen to that and our own core mission demanded it. And,
through the tireless work of the staff and my fellow Commissioners, we
made significant progress.
On
the day I was sworn in as Chair, we adopted identity theft rules
requiring broker-dealers, mutual funds, investment advisers, and others
regulated by us to adopt programs to detect red flags and prevent
identity theft.[1]
A
month later, we proposed rules to govern cross-border swap transactions
in the multi-trillion dollar global over-the-counter derivatives
markets.[2]
A month after that, we proposed rules to reform and strengthen the structure of money market funds. [3]
Last
summer and fall, we made significant progress in implementing the
reforms to the private offering market mandated by Congress in the JOBS
Act. We lifted the ban on general solicitation[4] and we proposed rules
that would provide new investor protections and important data about
this new market.[5] We also proposed new rules that would permit
securities-based crowdfunding and update and expand Regulation A.[6]
We adopted a Dodd-Frank Act rule disqualifying bad actors from certain private offerings.[7]
We adopted some of the most significant changes in years to the financial responsibility rules for broker-dealers.[8]
We adopted rules governing the registration and regulation of municipal advisors.[9]
We adopted rules removing references to credit agency ratings in certain broker-dealer and investment company regulations.[10]
In December, together with the banking regulators and the CFTC, we adopted regulations implementing the Volcker Rule.[11]
And,
just last week we announced the selection of Rick Fleming, the deputy
general counsel at the North American Securities Administrators
Association, as the first Investor Advocate, a position established by
Dodd-Frank.[12]
As
even this partial list shows, we have made significant progress on our
rulemakings, although more remains to be done. But we must always keep
the bigger picture in focus and not let the sheer number nor the
sometimes controversial nature of the Congressional mandates distract us
from other important rulemakings and initiatives that further our core
mission as we set and carry out our priorities for the year ahead.
Other Critical Initiatives
To
be more specific, in 2014, in addition to continuing to complete
important rulemakings, we also will intensify our consideration of the
question of the role and duties of investment advisers and broker
dealers, with the goal of enhancing investor protection. We will
increase our focus on the fixed income markets and make further progress
on credit rating agency reform. We will also increase our oversight of
broker-dealers with initiatives that will strengthen and enhance their
capital and liquidity, as well as providing more robust protections and
safeguards for customer assets.
We
also will continue to engage with other domestic and international
regulators to ensure that the systemic risks to our interconnected
financial systems are identified and addressed – but addressed in a way
that takes into account the differences between prudential risks and
those that are not. We want to avoid a rigidly uniform regulatory
approach solely defined by the safety and soundness standard that may be
more appropriate for banking institutions.
In
2014, we also will prioritize our review of equity market structure,
focusing closely on how it impacts investors and companies of every
size. One near-term project that I will be pushing forward is the
development and implementation of a tick-size pilot, along carefully
defined parameters, that would widen the quoting and trading increments
and test, among other things, whether a change like this improves
liquidity and market quality.
In
2013, our Trading and Markets Division continued to develop the
necessary empirical evidence to accurately assess our current equity
market structure and to consider a range of possible changes. Today we
have better sources of data to inform our decisions. For example,
something we call MIDAS collects, nearly instantaneously, one billion
trading data records every day from across the markets. We have
developed key metrics about the markets using MIDAS and placed them on
our website last October so the public, academics, and all market
participants could share, analyze, and react to the information that
allows us to better test the various hypotheses about our markets to
inform regulatory changes.[13]
The
SEC, the SROs, and other market participants are also proceeding to
implement the Consolidated Audit Trail Rule,[14] which when operational
will further enhance the ability of regulators to monitor and analyze
the equity markets on a more timely basis. Indeed, it should result in a
sea change in the data currently available, collecting in one place
every order, cancellation, modification, and trade execution for all
exchange-listed equities and equity options across all U.S. markets. It
is a difficult and complex undertaking, which must be accorded the
highest priority by all to complete.
We
also are very focused on ensuring the resilience of the systems used by
the exchanges and other market participants. It is critically
important that the technology that connects market participants be
deployed and used responsibly to reduce the risk of disruptions that can
harm investors and undermine confidence in our markets. A number of
measures have already been taken and, in 2014, we will be focused on
ensuring that more is done to address these vulnerabilities. One
significant vulnerability that must be comprehensively addressed across
both the public and private sectors is the risk of cyber attacks. To
encourage a discussion and sharing of information and best practices,
the SEC will be holding a cybersecurity roundtable in March.[15]
Enforcement
Let
me turn to enforcement at the SEC in 2014 because vigorous and
comprehensive enforcement of our securities laws must always be a very
high priority at the SEC. And it is.
When
I arrived in April, I found what I expected to find – a very strong
enforcement program. Through extraordinary hard work and dedication,
the Commission’s Enforcement Division achieved an unparalleled record of
successful cases arising out of the financial crisis. To date, we have
charged 169 individuals or entities with wrongdoing stemming from the
financial crisis – 70 of whom were CEOs, CFOs, or other senior
executives. At the same time, the Commission also brought landmark
insider trading cases and created specialized units that pursued complex
cases against investment advisers, broker dealers and exchanges, as
well as cases involving FCPA violations, municipal bonds and state
pension funds. In 2013 alone, Enforcement’s labors yielded orders to
return $3.4 billion in disgorgement and civil penalties, the highest
amount in the agency’s history. But there is always more to do.
Admissions
Last
year, we modified the SEC’s longstanding no admit/no deny settlement
protocol to require admissions in a broader range of cases. As I have
said before,[16] admissions are important because they achieve a greater
measure of public accountability, which, in turn, can bolster the
public’s confidence in the strength and credibility of law enforcement,
and the safety of our markets.
When
we first announced this change, we said that we would consider
requiring admissions in certain types of cases, including those
involving particularly egregious conduct, where a large numbers of
investors were harmed, where the markets or investors were placed at
significant risk, where the conduct undermines or obstructs our
investigative processes, where an admission can send a particularly
important message to the markets or where the wrongdoer poses a
particular future threat to investors or the markets. And now that we
have resolved a number of cases with admissions, you have specific
examples of where we think it is appropriate to require admissions as a
condition of settlement.[17] My expectation is that there will be more
such cases in 2014 as the new protocol continues to evolve and be
applied.
Financial Fraud Task Force
Last
year, the Enforcement Division also increased its focus on accounting
fraud through the creation of a new task force.[18] The Division formed
the Financial Reporting and Audit Task Force to look at trends or
patterns of conduct that are risk indicators for financial fraud,
including in areas like revenue recognition, asset valuations, and
management estimates. The task force draws on resources across the
agency, including accountants in the Division of Corporation Finance and
the Office of the Chief Accountant and our very talented economists in
the Division of Economic Risk and Analysis (DERA). The task force is
focused on more quickly identifying potential material misstatements in
financial statements and disclosures. The program has already generated
several significant investigations and more are expected to follow.
In
addition to the new admissions protocol and the Financial Fraud Task
Force, the Enforcement Division also has other exciting new initiatives
including a new Microcap Task Force[19] and a renewed focus on those who
serve as gatekeepers in our financial system, just to name a few.
* * *
We
have talked about our rulemaking agenda, some of our ongoing market
structure initiatives, and a bit about what is new and developing in
Enforcement. But what else lies ahead?
Corporation Finance: JOBS Act and Disclosure Reform
As
we move to complete our rulemakings in the private offering arena, it
is important for the SEC to keep focused on the public markets as well.
Our JOBS Act related-rulemaking will provide companies with a number of
different alternatives to raise capital in the private markets. Some
have even suggested that if the private markets develop sufficient
liquidity, there may not be any reason for a company to go public or
become a public company in the way we think of it now. That would not
be the best result for all investors.
While
the JOBS Act provides additional avenues for raising capital in the
private markets and may allow companies to stay private longer, the
public markets in the United States also continue to offer very
attractive opportunities for capital. They offer the transparency and
liquidity that investors need and, at the same time, provide access to
the breadth of sources of capital necessary to support significant
growth and innovation. For our part, we must consider how the SEC’s
rules governing public offerings and public company reporting and
disclosure may negatively impact liquidity in our markets and how they
can be improved and streamlined, while maintaining strong investor
protections.
Last
year, I spoke about disclosure reform[20] and in December the staff
issued a report that contains the staff’s preliminary conclusions and
recommendations as to how to update our disclosure rules.[21]
What is next?
This
year, the Corp Fin staff will focus on making specific recommendations
for updating the rules that govern public company disclosure. As part
of this effort, Corp Fin will be broadly seeking input from companies
and investors about how we can make our disclosure rules work better,
and, specifically, investors will be asked what type of information they
want, when do they want it and how companies can most meaningfully
present that information.
Investment Management: Enhanced Asset Manager Risk Monitoring
The
SEC of 2014 is an agency that increasingly relies on technology and
specialized expertise. This is particularly evident in the SEC’s new
risk monitoring and data analytics activities. One important example is
the SEC’s new focus on risk monitoring of asset managers and funds.
Last
year featured a very concrete success from these risk monitoring
efforts when the SEC brought an enforcement case against a money market
fund firm charging that it failed to comply with the risk limiting
conditions of our rules.[22]
In
the past year, the SEC has established a dedicated group of
professionals to monitor large-firm asset managers. These professionals
who include former portfolio managers, investment analysts, and
examiners track investment trends, review emerging market developments,
and identify outlier funds.
The
tools they use include analytics of data we receive, high-level
engagement with asset manager executives and mutual fund boards,
data-driven, risk-focused examinations, and with respect to money market
funds certain stress testing results.
What is next?
I
asked the IM staff for an “action plan” to enhance our asset manager
risk management oversight program. Among the initiatives under
near-term consideration are expanded stress testing, more robust data
reporting, and increased oversight of the largest asset management
firms. To be an effective 21st century regulator, the SEC is using 21st
century tools to address the range of 21st century risks.
OCIE: Innovation in Exam Planning
We
also are using powerful new data analytics and technology tools in our
National Exam Program to conduct more effective and efficient risk-based
examinations of our registrants.
OCIE’s
Office of Risk Assessment and Surveillance aggregates and analyzes a
broad band of data to identify potentially problematic behavior. In
addition to scouring the data that we collect directly from registrants,
we look at data from outside the Commission, including information from
public records, data collected by other regulators, SROs and exchanges,
and information that our registrants provide to data vendors. This
expanded data collection and analysis not only enhances OCIE’s ability
to identify risks more efficiently, but it also helps our examiners
better understand the contours of a firm’s business activities prior to
conducting an examination.
What is next?
The
Office of Risk Assessment and Surveillance is developing exciting new
technologies – text analytics, visualization, search, and predictive
analytics – to cull additional red flags from internal and external data
and information sources. These tools will help our examiners be even
more efficient and effective in analyzing massive amounts of data to
more quickly and accurately hone in on areas that pose the greatest
risks and warrant further investigation. In an era of limited resources
and expanding responsibilities, it is essential to identify and target
these risks more systematically. And we are doing that.
Conclusion
Let
me stop here. Hopefully, I have at least given you a window into the
strong, busy, and proactive state of the SEC in 2014. More importantly,
throughout the next two days, you will hear directly from our staff
about the many ways we are meeting the current challenges that we all
face in our complex and rapidly changing markets and how we are
preparing for tomorrow’s challenges.
This
year as in every year, we look forward to hearing your ideas and input
on our rulemakings and other initiatives. Your views are very important
to us and assist us to implement regulations that are true to our
mission, effective, and workable.
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