United States: House Financial Services Committee Introduces Legislation To Overhaul SEC Waiver Process

I. Introduction

Over the past several weeks, competing views have emerged from Capitol Hill and the SEC over how the Securities and Exchange Commission ("SEC" or "Commission") should approach waivers of collateral consequences for parties that settle enforcement proceedings.

On June 19, 2019, Rep. Maxine Waters (D-CA), Chairwoman of the House Financial Services Committee, introduced draft legislation, entitled the "Bad Actor Disqualification Act of 2019" (the "Disqualification Act"), that would make it significantly more difficult for the SEC or its Staff to grant waivers from automatic disqualification provisions. The proposed legislation is similar to legislation that Chairwoman Waters introduced in 2015 and 2017, which did not gain traction in Congress. The legislation states that its purpose is to increase transparency and accountability for large financial institutions; its actual effect, however, may be to introduce significant difficulties to consensual resolution of enforcement proceedings.

Two weeks after Chairwoman Waters reintroduced her bill, SEC Chairman Jay Clayton announced a new policy allowing: (i) a settling entity to request that the Commission consider settlement offers that simultaneously address both the underlying enforcement action and any related waiver requests; and (ii) the settling parties to withdraw from settlement if a waiver request is not granted.1 In practice, settlement offers and waiver requests generally have been submitted to the Commission together but have required separate recommendations by different divisions and separate Commission votes. Under the new policy, the Commission may consider the offer of settlement and the waiver requests together and assess whether the complete resolution would best serve investors and the Commission's mission. As Chairman Clayton explained, "[t]his approach will honor substance over form and enable the Commission to consider the proposed settlement and waiver request contemporaneously."2

II. Automatic Disqualifications Under the Federal Securities Laws

The federal securities laws provide that individuals and entities that are found to have violated certain securities laws or to have engaged in specified types of misconduct are automatically disqualified from conducting certain securities-related activities or relying on specified exemptions. The disqualifying events vary by statute but include court-ordered injunctions, administrative actions (including negotiated settlements), or criminal indictments and convictions. The violations that trigger disqualification can be scienter or non-scienter based and can be based on the conduct of an affiliate or one or more employees.

The Commission has recognized the significant breadth and implications of the automatic disqualification provisions. Former Chair Mary Jo White explained that "the sweep of disqualifications is intentionally broad, both in terms of what conduct may trigger them and the range of activities covered by their prohibitions."3 As a consequence, disqualifications can effectively serve as a "corporate death penalty."4 Automatic disqualifications, however, were not intended to be punitive or even an enforcement tool—they instead are meant to serve as prophylactic measures to maintain the integrity of the financial markets and reduce recidivism. Indeed, the Commission's Division of Enforcement has historically refused to discuss waivers when negotiating settlements, on the grounds that disqualifications themselves are not penalties.

To "temper the potential over-breadth of the disqualification provisions,"5 the securities laws give the Commission discretion to waive the automatic disqualification when the affected company or individual can demonstrate that the disqualification is unnecessary. In granting waivers, the Commission considers a broad range of factors, including the duration of the conduct, the nature of the offense, whether the conduct was "willful," and the remedial steps taken in response.6 The Commission also considers the severity of the consequences if the waiver request were denied. In the past, the Commission has recognized that waivers are particularly appropriate when "the misconduct at issue . . . involves a relatively limited number of a firm's employees or a specific business line, and is wholly unrelated to the activities that would be the subject of the disqualification."7

III. The Proposed Legislation

The Disqualification Act proposes to change a number of key aspects of the waiver process to address concerns by some that the Commission has historically been too permissive in granting waivers, particularly to large financial institutions.8 The proposed legislation notes that "[automatic disqualification provisions] are inappropriately underutilized and waivers of the automatic disqualification provisions are disproportionately granted to the largest financial institutions on Wall Street."9 If enacted, the legislation would transform the process for waiver of certain automatic disqualification from one primarily handled by SEC Staff to a statutorily mandated procedure with multiple layers of SEC and public deliberation.10

To obtain a waiver for a disqualification covered under the Disqualification Act, a waiver applicant would first need to petition the Commission for a single 180-day temporary waiver, which the Commission could grant only upon a showing of "immediate irreparable injury."11 Each temporary waiver request would be published, accompanied by a written explanation from the Commission explaining its rationale for granting or denying the request. If a temporary waiver were to be granted, the Commission would then publish notice of the waiver in the Federal Register and allow the "public and interested persons an opportunity to present their views, including at a public hearing."12 Following the 180-day temporary waiver period, the Commission would hold a public hearing to determine whether to grant a permanent waiver. The Commission would be authorized to grant a permanent waiver only when it determines that such waiver "(i) is in the public interest; (ii) is necessary for the protection of investors; and (iii) promotes market integrity."13 In making this determination, the Commission could not consider direct costs arising from a waiver denial.

The Disqualification Act would prohibit the SEC Staff from providing information to waiver applicants on the likelihood that a waiver would be granted.14 The Disqualification Act would also require the Commission to establish and maintain a public database of "ineligible persons," i.e., any entities or individuals who received a disqualification and whose waiver request was denied.15 Finally, the proposed legislation would require the U.S. Government Accountability Office to conduct a study of the Commission's existing waiver process and the standard used in granting waivers under Section 9 of the Investment Company Act of 1940.16

IV. Revised SEC Guidance on the Waiver Process

On July 3, 2019, Chairman Clayton released a statement revising the Commission's policy with respect to waiver requests in negotiated settlements. Under its existing practices (i.e., prior to this statement), the Commission has generally considered settlement offers and waiver requests contemporaneously but required separate recommendations by the relevant divisions and separate Commission votes. In practice, this means that settling parties often must agree to settle without complete certainty as to whether a waiver will be granted, which reduces companies' appetite for settlement and increases the complexity of the entire settlement process. As Chairman Clayton explained, "such a formulaic separation [between settlement offers and waiver requests] often is inconsistent with appropriate consideration of the substance and interconnected nature of the matters at issue and undermines factors that drive appropriate settlements."17 By considering two related matters separately, the separation can "substantially complicate and lengthen the negotiating process, which, among other consequences, may not lead to the best outcome for investors and can unnecessarily tap Commission resources."18

Given these practical implications, Chairman Clayton announced that the Commission has adopted a new process moving forward. Rather than considering settlement offers and waiver requests separately, a settling entity can now request that the Commission consider an offer of settlement that simultaneously addresses both the underlying enforcement action and any related waiver request. Chairman Clayton noted that the Commission permitted these types of simultaneous settlement offers and waiver requests in the past (often they were framed as an offer of settlement contingent upon the receipt of a specified waiver). In addition, under the new policy, companies will have the ability to withdraw from a settlement if the settlement offer is accepted but the waiver request is not approved in whole or in part. Chairman Clayton indicated broad support for the new integrated process, noting that "[t]he Directors of the Divisions of Enforcement, Corporation Finance and Investment Management, as well as other senior members of the Enforcement Division, believe that . . . the practice of permitting simultaneous offers of settlement and waiver requests will benefit investors and the Commission's mission more generally."19

V. Analysis

Chairman Clayton's statement draws a sharp contrast to Chairwoman Waters' proposal on how the SEC should approach waiver decisions, a topic that has been the subject of considerable political dialogue in recent years. Critics have argued that the Commission has granted disqualifications too freely, particularly to large financial institutions that have engaged in repeated wrongdoing. The Disqualification Act seeks to address those concerns. On the other side of the debate, former Financial Services Committee Chairman Jeb Hensarling (R-TX) introduced the Financial CHOICE Act (the "CHOICE Act") in 2016 as a direct alternative to an earlier version of Chairwoman Waters' proposal. The CHOICE Act sought to amend the waiver process so that disqualifications would be discretionary, requiring the Commission to issue an order—after notice and an opportunity for hearing—to impose a disqualification. The CHOICE Act passed the Republican-controlled House but failed to gain support in the Democrat-led Senate. While the waiver process has elicited spirited debate on Capitol Hill, the Commission has sought to avoid politicizing the issue. As former Chair White noted, debate over the Commission's waiver decisions "can take on a political tone that can blur the analysis."20

As an initial matter, there are practical reasons why large financial institutions receive more waivers than other market participants.

  • First, larger firms, by definition, have wider operations and more employees. This not only increases the risk of misconduct and rogue behavior, but the sheer size of large firms also increases complexity and creates more opportunities for oversights or disconnects between different operating units and control functions. In either event, it is not surprising that larger organizations have more frequent interactions with the Commission's enforcement process compared to smaller entities with less expansive operations.
  • Second, waivers are most appropriate in cases where the violation occurred in a business unit "wholly unrelated to the activities that would be the subject of the disqualification."21 A larger firm is more likely to have the mature supervisory system and compliance program that are necessary to effectively segregate business units and independently satisfy the Commission's programmatic goals, without the need for the automatic disqualification.
  • Third, large financial institutions are often better positioned to credibly make the policy and personnel changes necessary to remediate historic issues than smaller institutions, where misconduct may have been conducted by senior management or part of the firm's core business activity.
  • Finally, certain types of disqualifications predominantly apply to large financial firms. For example, to qualify as a WKSI, a firm must have a public float of $700 million or must have issued at least $1 billion of nonconvertible securities over the prior three years. Because many smaller firms do not meet these capital requirements, the WKSI disqualification has no effect and there is no reason to apply for a waiver.

Additionally, despite the bill's stated purpose to protect the public and promote market integrity, the Disqualification Act could undermine those goals by introducing significant obstacles to negotiated settlements. As Chairman Clayton noted in his recent statement, the desire for final resolution is a strong motivation for firms to enter negotiated settlements, and "[t]he Commission's ability to provide such certainty can be [a] critical factor in reaching a settlement that is in the best interest of investors."22 Indeed, the Commission's revised policy is aimed at, among other things, providing a level of certainty so the Commission can provide a full and final resolution of a matter. By contrast, the Disqualification Act proposes a greater bifurcation of the settlement and waiver processes. Without knowing whether those settlements could result in a disqualification seriously hindering a particular business, firms will be less likely to resolve cases through settlement—and more likely to litigate. As Chairman Clayton's statement notes, "[a]ppropriate settlements, particularly those settlements that occur without undue delay . . . allow the Commission to allocate resources that would be used in support of any given litigation to other matters."23 Given the Commission's finite resources, the reduced incentive to settle could require the Commission to be even more selective in choosing cases to pursue, limiting the scope and effect of its enforcement program.

VI. Conclusion

The Commission's recent guidance and the Disqualification Act represent sharply different views on how to improve the process for granting waivers from the automatic disqualification provisions under the securities laws. Whereas the Commission's newly-announced waiver process permits the Commission and its Staff greater flexibility and discretion given the complexities inherent in waiver decisions, the Disqualification Act seeks a more defined process and to grant waivers sparingly. If the Disqualification Act is enacted, the changes to the waiver process may require firms to reconsider their approach to Commission enforcement actions, including the long-standing preference to settle most investigations before litigation. Potentially affected firms should monitor developments in this area closely.

Footnotes

  1. Jay Clayton, Chair, SEC, Statement Regarding Offers of Settlement (July 3, 2019).
  2. Id.
  3. Mary Jo White, Chair, SEC, Remarks at the Corporate Counsel Institute, Georgetown University: Understanding Disqualifications, Exemptions and Waivers Under the Federal Securities Laws (Mar. 12, 2015).
  4. Daniel M. Gallaher, Comm'r, SEC, Why is the SEC Wavering on Waivers? Remarks at the 37th Annual Conference on Securities Regulation and Business Law (Feb. 13, 2015).
  5. Mary Jo White, Chair, SEC, Remarks at the Corporate Counsel Institute, supra note 3.
  6. See, e.g., Div. of Corp. Fin., SEC, Waivers of Disqualification under Regulation A and Rules 505 and 506 of Regulation D (Mar. 13, 2015); Div. of Corp. Fin., SEC, Revised Statement on Well-Known Seasoned Issuer Waivers (Apr. 24, 2014).
  7. Mary Jo White, Chair, SEC, Remarks at the Corporate Counsel Institute, supra note 3.
  8. For example, certain former SEC Commissioners argued that the Commission should refuse to grant waivers to firms that engage in repeated misconduct. See, e.g., Kara M. Stein, Comm'r, SEC, Dissenting Statement Regarding Certain Waivers Granted by the Commission for Certain Entities Pleading Guilty to Criminal Charges Involving Manipulation of Foreign Exchange Rates (May 21, 2015).
  9. Disqualification Act, Sec. 2(2).
  10. The Disqualification Act would apply to requests for waivers from the following types of disqualifications: (i) ineligibility to rely on status as a well-known seasoned issuer ("WKSI") under Rule 405 of Regulation C; (ii) ineligibility to rely on the "forward-looking statements" safe harbor under the Private Securities Litigation Reform Act; (iii) ineligibility to rely on the private offering exemptions under Regulation D; (iv) ineligibility to rely on offering exemptions under Regulations A or E; and (v) ineligibility to receive a cash solicitation payment from an investment adviser under Rule 206(4)-3 of the Investment Advisers Act of 1940 ("Advisers Act").
  11. Disqualification Act, Sec. 3(d)(1)(A)(ii).
  12. Id. at Sec. 3(d)(1)(C).
  13. Id. at Sec. 3(d)(1)(B).
  14. Id. at Sec. 3(d)(1)(D).
  15. Id. at Sec. 3(d)(2).
  16. Id. at Sec. 4.
  17. Jay Clayton, Chair, SEC, Statement Regarding Offers of Settlement, supra note 1.
  18. Id.
  19. Id.
  20. Mary Jo White, Chair, SEC, Remarks at the Corporate Counsel Institute, supra note 3.
  21. Id.
  22. Jay Clayton, Chair, SEC, Statement Regarding Offers of Settlement, supra note 1.
  23. Id.

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