Crown image Columbia Law School

SEC Commissioners Dissent to Charges Against McDonald’s for Flawed Disclosure of CEO Firing

We are unable to support the charges against McDonald’s Corporation (“McDonald’s”) for failing to disclose sufficient information regarding the termination of its former CEO, Stephen Easterbrook, in its 2020 proxy statement.  The Order[1] casts McDonald’s, the victim of Mr. Easterbrook’s deception, as a securities law violator through a novel interpretation of the Commission’s expansive executive compensation disclosure requirements.

The Commission’s Order finds, among other things, that McDonald’s violated Section 14(a) of the Securities Exchange Act of 1934 and Rule 14a-3 thereunder because the company failed to provide the disclosure required by Item 402(b) and (j)(5) of Regulation S-K.  Item … Read more

SEC Commissioner Peirce on Flaws in New Clawback Rules

What we are doing today [October 28]—implementing the statutory clawbacks mandate—is commendable. But how we are doing it—expansively, inflexibly, and impractically—is not. Accordingly, I cannot vote to adopt this rule.

Section 954 of the Dodd-Frank Act generally requires the Commission to direct exchanges to require listed companies to “develop and implement a policy” for disclosing how they handle incentive-based compensation tied to reported financial information and, when that reported information has to be restated, a policy for clawing back related erroneously awarded compensation.[1] Congress did not prohibit us from allowing listing exchanges and issuers some flexibility in crafting, respectively,

Read more

SEC Commissioner Peirce Discusses Chief Compliance Officer Liability

I write in support of the settled administrative proceeding against Hamilton Investment Counsel LLC (“HIC”) and Jeffrey Kirkpatrick.[1] Because Mr. Kirkpatrick was both a principal and the chief compliance officer (“CCO”) of HIC, the action against him merits close consideration.

The SEC’s determinations about whether to charge a compliance officer are consequential not only for the particular compliance officer, but more generally for the profession. CCOs play a vital role in ensuring that investment advisers, broker-dealers, and other registered entities comply with the securities laws. A good CCO expertly weaves compliance into all of a firm’s activities. Attracting well-qualified

Read more

SEC Commissioner Peirce Criticizes Regulatory Flexibility Agenda

Chair Gensler’s Regulatory Flexibility Agenda[1] for the Securities and Exchange Commission sets forth flawed goals and a flawed method for achieving them. The agenda, if enacted, risks setting off the regulatory version of a rip current—fast-moving currents flowing away from shore that can be fatal to swimmers. Just as certain wave and wind conditions can create dangerous rip currents,[2]the pace and character of the rulemakings on this agenda make for dangerous conditions in our capital markets.

I. The Agenda Devotes the Agency’s Limited Resources to Rulemaking Proposals Disconnected from Our Core Mission

The Agenda continues to shun

Read more

SEC Commissioner Peirce on ESG Disclosures Proposal

Thank you, Mr. Chair. A key impetus for today’s [May 25’s] rulemaking[1] is a legitimate concern about the practice of greenwashing by investment advisers and investment companies. This concern is real because advisers can mint money by calling their products and services “green” without doing anything special to justify that label. Only days ago, we settled an enforcement proceeding in which we alleged that an adviser said one thing about ESG and did another.[2] Yet while enforcement proceedings of this sort illustrate the problem, they also show that we already have a solution: when we see advisers that

Read more

SEC Commissioner Dissents on Shell Companies, Projections, and SPACs Proposal

Thank you, Chair Gensler, Renee [Jones], Charles [Kwon], and Jessica [Wachter] for the presentation. The Commission’s 2022 budget request includes additional resources to address “an unprecedented surge in non-traditional IPOs by special purpose acquisition companies.”[1] If we adopt the rule that we are voting on today, we will not need additional resources to deal with Special Purpose Acquisition Companies (“SPACs”). The proposal—rather than simply mandating sensible disclosures around SPACs and de-SPACs, something I would have supported—seems designed to stop SPACs in their tracks. The proposal does not stop there; it also makes a lot of sweeping interpretations of the

Read more

SEC Commissioner Peirce Criticizes Proposed Mandatory Climate Risk Disclosures

Thank you, Chair Gensler.  Many people have awaited this day with eager anticipation.  I am not one of them.  Contrary to the hopes of the eager anticipators, the proposal will not bring consistency, comparability, and reliability to company climate disclosures.  The proposal, however, will undermine the existing regulatory framework that for many decades has undergirded consistent, comparable, and reliable company disclosures.  We cannot make such fundamental changes to our disclosure regime without harming investors, the economy, and this agency.  For that reason, I cannot support the proposal.

The proposal turns the disclosure regime on its head.  Current SEC disclosure mandates

Read more

SEC Commissioner Peirce Dissents on Cybersecurity Proposal

Thank you, Renee, Ian, and Jessica. Cybersecurity risk is top of mind for everyone. The Commission’s consideration of this topic—whether for investment advisers, as we did a month ago,[1] or public companies, as we are doing today [March 9]—is, therefore, reasonable. We must approach this topic, of course, through the prism of our mission. We have an important role to play in ensuring that investors get the information they need to understand issuers’ cybersecurity risks if they are material. This proposal, however, flirts with casting us as the nation’s cybersecurity command center, a role Congress did not give us. … Read more

SEC Commissioner Peirce Speaks on Private Fund Advisers Proposal

Today’s [February 9] proposal represents a sea change. It embodies a belief that many sophisticated institutions and high net worth individuals are not competent or assertive enough to obtain and analyze the information they need to make good investment decisions or to structure appropriately their relationships with private funds. Therefore, the Commission judges it wise to divert resources from the protection of retail investors to safeguard these wealthy investors who are represented by sophisticated, experienced investment professionals. I disagree with both assessments; these well-heeled, well-represented investors are able to fend for themselves, and our resources are better spent on retail

Read more

SEC Commissioner Peirce Dissents on Proposal to Amend Regulation ATS

Events in the U.S. Treasury market (as well as the related repo market) over the past several years strongly suggest that the market for government securities suffers from inadequate levels of intermediation, liquidity, and transparency that in times of stress can dramatically decrease its ability to function properly and significantly increase risks to market participants.[1]  Commentators have suggested a number of possible reforms,[2] and, although I am skeptical of some of these suggestions, I agree that the Commission should be considering carefully how it might use its authority to make changes that could relieve some of these pressures

Read more

SEC Commissioner Peirce Dissents on Universal Proxy Rules

I support universal proxy, but not today’s version of universal proxy.

Shareholders voting by proxy should be able to split their vote among company and dissident nominees.  Allowing shareholders a straightforward way of choosing a mixed slate through a universal proxy card can facilitate sensible changes to board composition.  Universal proxy makes sense for both operating companies and investment companies.  This particular universal proxy rule, however, may facilitate changes to the company that advance special interests rather than enhancing corporate value by serving as a tool for frivolous, as well as serious, activists.  I might have been able to support

Read more

SEC Commissioners Discuss Report on “Meme Stock” Episode

Today [October18], the staff issued a report on the so called “meme stock” episode that occurred this past January.  We would like to thank the staff not only for their hard work on this report, but also for keeping the Commission fully and timely informed during the period of extreme volatility discussed in the report.  While the report includes an interesting account of the events, it does not appear that many conclusions can be drawn from the data.  This report should have been an anodyne report on the events of earlier this year and, if evident from the data, an … Read more

SEC Commissioner Peirce on Nasdaq Board Diversity Proposal

I write in opposition to the approval of the Board Diversity Proposal (“Board Diversity Proposal” or “Proposal”) submitted for approval by the Nasdaq Stock Market LLC (“the Exchange”).[1] The Proposal attempts to expand opportunity, a goal I share,[2] but it does so in a way that improperly leverages authority that Congress has entrusted to it under the Exchange Act. Because the Exchange cannot show that its Proposal is consistent with the Exchange Act, and because the Proposal is in fact outside the scope of the Act and contrary to fundamental Constitutional principles, I cannot support its approval.[3]

Read more

SEC Commissioner Peirce Speaks on ESG Disclosure

This summer was the summer of the cicadas. The dull hum of their song permeated the solitude of an evening stroll, along with the disconcerting crunch as pedestrian attempts to avoid squashing the creatures inevitably failed. Every seventeen years the beady-eyed cicadas emerge from underground—a natural wonder, perhaps therefore to be forgiven for their uncouth habits and off-putting appearance.[1] As eighteenth century farmer and self-taught naturalist Benjamin Banneker, having observed three appearances of cicadas, wrote:

[I]f their lives are Short they are merry, they begin to Sing or make a noise from the first they come out of Earth … Read more

SEC Commissioners Comment on Chair Gensler’s Regulatory Agenda

Last Friday, the Office of Information and Regulatory Affairs released the Spring 2021 Unified Agenda of Regulatory and Deregulatory Action (“Agenda”), which includes the SEC Chair’s Agenda.[1] While there are important and timely items on the list, including rules related to transfer agents and government securities alternative trading systems, the Agenda is missing some other important rulemakings, including rules to provide clarity for digital assets, allow companies to compensate gig workers with equity, and revisit proxy plumbing. Perhaps the absence of these rules is attributable to the regrettable decision to spend our scarce resources to undo a number of

Read more

SEC Commissioners Respond to Chairman’s Call for Review of Proxy-Voting Advice Rules

Today [June 1], Chair Gensler announced that he has directed the SEC staff to consider whether to recommend that the Commission revisit its recent regulatory actions taken with respect to proxy voting advice businesses and its longstanding interpretation of proxy solicitation.[1] Additionally, the staff announced that it will not recommend an enforcement action against a proxy voting advice business that fails to comply with the Commission’s existing requirements for proxy voting advice.[2]

As background, last July, the Commission adopted requirements that proxy voting advice businesses, in order to rely on exemptions from the information and filing requirements of

Read more

SEC Commissioner Speaks at Asset Management Advisory Committee Meeting

Good morning to you all and thank you Ed [Bernard]. It is always a pleasure to welcome the hard working volunteers of AMAC back to the Commission. I also want to thank Sarah ten Siethoff and the staff of the Division of Investment Management for their work in keeping AMAC’s wheels turning. In particular, I would like to thank Christian Broadbent, Jay Williamson, Walé Oriola, and Emily Rowland who are so instrumental in making these meetings happen.

We are now well into the New Year but in some respects, 2021 is looking a lot like 2020. We continue to interact

Read more

Commissioners Discuss SEC’s Enhanced Climate-Change Efforts

Over the past two weeks, we and the public have seen a steady flow of SEC “climate” statements and press releases.[1]  Our Divisions of Corporation Finance, Examinations, and Enforcement all have announced climate- or ESG-related initiatives.  What does this “enhanced focus” on climate-related matters mean?  The short answer is: it’s not yet clear.  Do these announcements represent a change from current Commission practices or a continuation of the status quo with a new public relations twist?  Time will tell.  In the meantime, it is important to contextualize the recent announcements by providing some historical and procedural background.

The Division

Read more

SEC Commissioner Peirce on Shareholder Proposals under Exchange Act Rule 14a-8

Thank you, Chairman Clayton. I support today’s amendments to certain procedural requirements and the resubmission thresholds under the shareholder proposal rule. While it can be difficult to discern the signal from the noise around today’s amendments, the reality of the situation is that we are making simple, sensible, and long over-due changes to the shareholder proposal rule.

Shareholder proposals are costly: they require the thoughtful attention of management and the board, procurement of legal advice, engagement with shareholder proponents and SEC staff, the printing and mailing of proposal materials, and vote tabulations. The shareholder-proponent does not bear these costs; the

Read more

SEC Commissioner Speaks on Financial Market Regulation

Whenever I talk to economists, since I cannot awe you with a fancy equation, I have to start with a bad joke.  It is a knock-knock joke, which is especially hard to pull off when trying to physically distance.  “Knock, knock.”  “Who’s there?”  “Economist.”  “Economist who?” “I kin’ o’ missed you too!”  It is a really bad joke, but I really do miss having you all here at the SEC in person and hope that will soon be a possibility. Before I begin, I must give my usual disclaimer: the views I will be expressing today are my own, and

Read more