Securities Regulation

Andrew Ceresney

SEC Enforcement Chief Ceresney Discusses Focus on Auditors and Auditing

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Good morning and thank you for that very kind introduction. It’s a pleasure to speak with you all today. Before I start, I must give our standard disclaimer that the views I express today are my own and do not necessarily reflect the views of the Commission or its staff.[1]

This morning, I want to discuss our enforcement work in the area of auditing, a topic that is sure to be of interest to all of you. There is no doubt that the work of auditors, who function as critical gatekeepers in the area of issuer reporting and disclosure, … Read more

Debevoise & Plimpton Discusses Disclosure of Government Investigations

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Registrants, particularly those involved in highly regulated industries, frequently must determine whether and when a government investigation and related pending or threatened litigation must be disclosed in its periodic reports filed with the Securities and Exchange Commission (“SEC”).  On September 9, 2016, the SEC filed a complaint against a company and its general counsel that should serve as a reminder for any registrant subject to a government investigation to ensure that it has robust procedures in place to review disclosure requirements in connection with government investigations in light of the facts uncovered by any internal investigation and the course of … Read more

sharma.tanyi

The Hidden Costs of Rotating Auditors

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The avalanche of accounting scandals in the late 1990s and early 2000s triggered major changes in the corporate accounting world. The Sarbanes-Oxley Act of 2002 (SOX) stampeded in, promising tightened audit regulation aimed at easing the minds of frightened market participants. Given heightened concern over excessively “chummy” relationships between corporate management and its auditors, one rule set forth in SOX requires more frequent client rotation of audit partners (every five years rather than seven) and greater time required before partners may return to the same client (five years rather than two).

While there is little doubt that this rule was … Read more

PwC Discusses New York’s Proposed Cybersecurity Rules

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On September 13, 2016, the New York State Department of Financial Services (DFS) proposed a broad set of cybersecurity regulations for banks, insurers, and other financial institutions.[1] The proposal is largely consistent with existing guidance (e.g., under the NIST Cybersecurity Framework or the FFIEC[2] IT Handbook), but it goes further in some ways.

The proposed rule is the result of DFS’ focus on cybersecurity over the past several years, in which DFS conducted three industry surveys, held cybersecurity discussions with various financial institutions, and issued a letter to US regulators asking for feedback on potential cyber-specific requirements.[3]… Read more

Wulf Kaal

What Happens When Technology Is Faster Than the Law?

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Designing a regulatory framework that ensures the safety of users and the public while facilitating the commercial use and consumer enjoyment of disruptive innovation is a challenging undertaking. This is particularly true in contemporary settings, where innovation is quicker and the global dissemination of that technology is much faster. The so-called “pacing problem” between innovation and regulation suggests that innovation driven by science and technology is accelerating, yet, simultaneously, federal and state agencies’ regulatory processes have slowed down as I discuss here. Given the intensifying pacing problem between regulation and innovation, regulators often struggle to keep up. The last … Read more

Cleary Gottlieb Discusses SEC’s Changes to Investment Adviser Filings

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On August 25, 2016, the Securities and Exchange Commission (the “SEC”) adopted amendments to Form ADV to modernize and enhance information reported by investment advisers (the “Amendments” or the “Form ADV Amendments”).[1]  Among other changes, advisers will be required to use a new Schedule R for each relying adviser when using umbrella registration for multiple entities in a single advisory business and will be required to provide additional information about separately managed accounts.  The adopting release also amends Rule 204-2 (the “Books and Records Rule”) under the Investment Advisers Act of … Read more

Joshua White

Quantified Cost-Benefit Analysis at the SEC

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In their recent article, Jeff Schwartz and Alexandra Nelson critique the Securities and Exchange Commission’s cost-benefit analysis accompanying the Conflict Minerals Rule.[1] This rule requires public companies using conflict minerals in their production to annually disclose whether the minerals come from certain war-torn areas such as the Democratic Republic of Congo. Schwartz and Nelson contend that the SEC’s estimate of $3-4 billion in compliance costs was grossly overstated due to numerous flaws. They point to early evidence estimating actual compliance costs at $710 million to support their criticism. The article also chastises the SEC for failing to quantify expected … Read more

fisch.gelbach

Toward a Better Understanding of Event Studies in Securities Litigation

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In June 2014, the Supreme Court issued its second decision in the Halliburton securities fraud litigation.[i]  Halliburton II reaffirmed the court’s prior decision in Basic Inc. v. Levinson,[ii] which provided plaintiffs in federal securities fraud litigation with a presumption of reliance based on the fraud on the market theory.  Halliburton II also heightened the importance for both plaintiffs and defendants of using event studies at the class certification stage in order to address price impact. Price impact concerns whether allegedly fraudulent statements significantly affected market price.  Event studies had already become a critical litigation tool for establishing … Read more

tabak2

Gauging Share-Price Response to News in Securities Litigation

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Courts handling shareholder class actions and other types of securities litigation have expressed different views about how often stocks should respond to material news.  Despite the importance of this issue in determining whether shares trade in an efficient market, these views are not attributed to any empirical evidence.  My new study, available here, examines how often companies in the S&P 500 Index exhibit a statistically significant response to earnings announcements, documenting that the typical company has a statistically significant response on either the day of or the day following the earnings announcement only about 50 percent of the time.  Thus, … Read more

David Zaring

Financial Reform’s Internationalism

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Financial reform has driven many changes in American governance, but the most dramatic one may prove to be the government’s cautious, but wide-ranging, embrace of a revised global regime to regulate international finance. That reform has moved the equilibrium of the separation of powers in foreign affairs towards Congress and uses the informal way that financial regulatory standards spread across the globe to do the work that customary international law used to do.

Both of these developments derive from the way that international financial cooperation has evolved.  The agencies charged with implementing Dodd-Frank have embraced “soft law” in their international … Read more

darrough2

M&A Buyers Pay a Premium for Their Weak Financial Controls

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The Sarbanes-Oxley Act (SOX) was enacted by the U.S. Congress in 2002 in the aftermath of a series of corporate scandals. It aims to strengthen investor protection by promoting better corporate governance and auditor independence. In particular, Sections 302 and 404 require top management to assess and certify the effectiveness of internal controls over financial reporting and an external auditor to attest to the validity of management’s assessment. Firms that cannot do so must disclose the existence and nature of their internal control weaknesses (ICWs). While a number of academic studies have documented associations between ICWs and suboptimal corporate behaviors … Read more

larcker.tayan

Gadflies at the Gate: Why Do Individual Investors Sponsor Proxy Resolutions?

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Individual investors are active participants in the shareholder resolution process. According to Proxy Monitor, shareholder proposals sponsored by individual investors represent approximately one-quarter of the total number of shareholder resolutions voted on each year.[1] During the 10-year period 2006-2015, individual investors brought forth over 1,100 resolutions at Fortune 500 companies. These resolutions span a vast array of topics, including proposed changes to board structure, executive compensation, shareholder rights, and corporate social policy (see Figure 1). [2]

larcker4

Figure 1: Individual Shareholder Resolutions, per Company (2006-2015)

Individual activism is a controversial topic. Critics contend that the large number of proposals filed … Read more

bochkay-chychyla-dnanda

How New CEOs Use Disclosure to Cut Uncertainty and Boost Their Careers

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For chief executive officers, communication is essential. It allows them to help stakeholders understand a company’s strategies and form opinions  about the company’s prospects as well as the CEO’s ability to create value. While effective communication is important at every stage of a CEO’s career, it is most salient at times of increased uncertainty around CEO transitions. A new CEO does not get a second chance to make a good first impression on employees, customers and investors, and because a CEO is in the spotlight as the company’s leader, a CEO’s every statement and move are scrutinized for what he … Read more

PwC explains New Margin Rule for Broker-Dealers in To-Be-Announced Transactions

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On August 15, the Financial Industry Regulatory Authority (FINRA) issued a regulatory notice adopting a requirement that U.S. registered broker-dealers collect margin on To-Be-Announced (TBA) transactions (FINRA Rule 4210).[1] FINRA’s action follows the Securities and Exchange Commission’s approval of FINRA’s earlier proposal[2] which was amended several times.

TBA transactions serve as a significant funding and hedging vehicle for consumer mortgage originations and provide liquidity in the secondary market for mortgage loans. These products have over $184 billion in average daily trading volume, second only to U.S. Treasuries, and have historically not been subject to margin requirements. The Rule … Read more

venderelst

A Plea for a Better Response to a Failed Say on Pay Vote

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The 2010 Dodd-Frank Act provided shareholders of U.S. public corporations the right to vote on chief executive officers’ compensation, at least every three years. The so–called say on pay vote is advisory but was designed to curb overly generous executive pay packages.

Since 2011, the financial press, consultants and academic scholars have considered how shareholders make use of this right. According to the latest results of Semler Brossy[1], 93 percent of the Russell 3000 companies received say on pay support of more than 70% in 2016, and the failure rate dropped to 1.7 percent, the lowest level since … Read more

leone-parise-sommavilla

Family First: How Nepotism Lowers Investment at U.S. Firms

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Family does matter in the United States. Census data indicate that more than 20 percent of men have worked for the same employers as their fathers, while a recent New York Times article suggests that the sons of senators have a 8,500 times higher chance of becoming senators than the average American male. A large body of empirical research in economics and finance has been devoted to the study of family firms and their role in the economy. Yet little is known about the implications of widespread family ties outside family-owned firms.

In an attempt to measure how widespread family … Read more

Steven Schwarcz, J.D. Stanley A. Star Professor of Law & Business Faculty

Changing Law to Address Changing Markets: A Consequence-Based Inquiry

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When should changes in markets for financial securities drive changes in law? In my forthcoming essay, available here, I argue that a normative framework for making that examination would increase transparency and legitimacy. It would also help counter the tendency of politics to distort legal responses to market changes. During economic prosperity, for example, the political push for deregulation can leave financial markets under-protected. But when the bubble of prosperity inevitably bursts, the political push for regulation can lead to over-protective laws.

The essay argues that the extent to which financial market changes should drive legal changes should depend on … Read more

Gibson Dunn identifies a Corporate Paradigm Shift: Public Benefit Corporations

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Since 2010, 30 states and the District of Columbia have passed legislation authorizing for-profit “public benefit corporations” (“PBC”), known in many states just as “benefit corporations.”[1] Although these laws vary slightly by state, each requires the board of directors of a PBC to consider the public benefit, in addition to shareholder return on investment, in their decision-making. Although state corporate law statutes and the tax code treat PBCs as for-profit enterprises, the legal focus of this new corporate model contrasts with that of traditional corporations, which focuses solely on maximizing shareholder wealth. The PBC laws are designed to empower … Read more

BGR1

Insider Trading Penalties: An International Study

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Insider trading is a serious form of misconduct and can result in defendants receiving lengthy prison sentences and significant monetary sanctions.  Our working paper, ‘Sanctions Imposed for Insider Trading in Australia, Canada (Ontario), Hong Kong, Singapore, New Zealand, the United Kingdom and the United States: an Empirical Study’, provides a detailed analysis of the insider trading enforcement landscape across a range of common law jurisdictions over the seven year period from January 1, 2009 to December 31, 2015. In particular, our study examines custodial sentences, banning orders and pecuniary sanctions imposed for insider trading. The study is based on … Read more

saguato

Fixing the Repo Market: The Piece Regulators Missed When Reforming the Financial Markets

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We all remember the hectic summer and fall of 2008, when the U.S. financial system was at the brink of collapse. Since then, policymakers have enacted structural reforms to the financial system but left the market in repurchase agreements largely untouched.

A repurchase agreement, or repo, is a sale of financial assets coupled with a promise to repurchase them later. Repos have economic characteristics similar to those of secured loans and bank deposits and are one of the main sources of liquidity for the U.S. financial system. Having developed free from the watchful eyes of regulators, the repo market has … Read more