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Examining U.S. Securities and Exchange Commission Enforcement: Recommendations on Current Processes and Practices

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Examining U.S. Securities and Exchange Commission Enforcement: Recommendations on Current Processes and Practices Examining U.S. Securities and Exchange Commission Enforcement: Recommendations on Current Processes and Practices July 2015 The U.S. Chamber of Commerce is the world’s largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations. Copyright © 2015 by the United States Chamber of Commerce. All rights reserved. No part of this publication may be reproduced or transmitted in any form—print, electronic, or otherwise—without the express written permission of the publisher. Table of Contents Preamble ........................................................................................................................................2 SUMMARY OF RECOMMENDATIONS ................................................................................................3 Recommendations on SEC Enforcement Policies ..........................................................................3 Recommendations on Commission Oversight of The Enforcement Program ......................................6 Recommendations to Improve The Efficiency and Effectiveness of The SEC Investigation Process .....6 INTRODUCTION .............................................................................................................................9 SUMMARY OF PAST STUDIES OF THE SEC ENFORCEMENT PROGRAM ...........................................10 RECOMMENDATIONS ON SEC ENFORCEMENT POLICIES ................................................................11 Providing a Structure for the Choice of Forum Decision that Incorporates Due Process Protections ..11 Strengthening the Wells Process ................................................................................................21 Clarifying the SEC Policy on Admissions ....................................................................................25 Reducing Duplication in Regulatory Enforcement ........................................................................28 The Broken Windows Policy and the Need for Alternative Methods of Resolving Matters .................30 RECOMMENDATIONS ON COMMISSION OVERSIGHT OF THE ENFORCEMENT PROGRAM .................32 Improving Commission Oversight ...............................................................................................32 Improving Transparency and Public Dialogue ..............................................................................35 RECOMMENDATIONS TO IMPROVE THE EFFICIENCY AND EFFECTIVENESS OF THE SEC INVESTIGATION PROCESS .............................................................................................................38 Streamlining the SEC Investigation Process ................................................................................38 Document Requests, Production, and Preservation ......................................................................40 Improving the Efficiency of the Investigation Process ..................................................................43 Appendix A ...................................................................................................................................47 End Notes .....................................................................................................................................56 www.CenterForCapitalMarkets.com 1 Preamble The U.S. Chamber of Commerce is releasing several recommendations to the U.S. Securities and Exchange Commission (SEC) in an effort to support the agency’s ongoing enforcement activities and to ensure clear, predictable, and efficient practices for market participants while eliminating unnecessary ambiguity. The mission of the SEC is to promote investor protection, competition, and capital formation. Capital markets that are efficient for both investors and businesses must be a level playing field with the certainty that clear rules provide. This level playing field can occur only if there is a strong Enforcement Program that helps to keep bad actors out of the marketplace. The SEC has always been recognized for its Enforcement Program. SEC Chair Mary Jo White and Enforcement Division Director Andrew Ceresney have put in place measures to strengthen the program and this report looks to build on those efforts. The certainty of clear rules of the road also means that SEC Enforcement should have a fair process for all to ensure that the rights of the accused are preserved while allowing the process to achieve its goals of finding the truth, punishing the wrong-doers, and preventing future harm. We believe that the recommendations found in this report will ensure that the process is fair and that all stakeholders can benefit from the SEC Enforcement activities that will engender efficient capital markets. In developing these recommendations we first surveyed more than 75 companies to identify areas where there is ambiguity or lack of clarity in the process. Second, we conducted extensive interviews with a wide range of more than 30 former SEC officials, legal experts, and corporate counsels to develop specific recommendations. We included the ideas that have broad support from those who generously participated in this process. It would be a mistake to misinterpret any of these recommendations as calling for changes that would either weaken enforcement or erect any process barriers that would impede vigorous action by the SEC. We were very careful to propose changes that will both further enable tough-as-nails efforts to punish and deter fraud while ensuring that honest market participants benefit from a clear and predictable process. Investors, market participants, and the SEC all benefit from this approach—vigorous, effective enforcement coupled with a clear and fair process. Examining U.S. Securities and Exchange Commission Enforcement: 2 Recommendations on Current Processes and Practices SUMMARY OF RECOMMENDATIONS RECOMMENDATIONS ON SEC its discretion, are subject eventually to review by an ENFORCEMENT POLICIES independent judiciary. In decades past, aggressive Commission positions in enforcement actions have been Providing a Structure for the Choice of Forum Decision overturned by appellate courts.1 For this reason, the that Incorporates Due Process Protection Commission’s reputation within the judiciary as a fair and evenhanded regulator is a precious commodity that must Congressional action has expanded the administrative be protected. proceeding process so that it is possible to bring almost all enforcement actions as either an administrative proceeding The following recommendations identify how the or as a civil action. While the types of actions and the Commission can adopt policies and procedures that would remedies that may be obtained are similar, the two forums achieve these objectives. have substantial differences in process. These differences can have a significant impact on the procedural rights of a RECOMMENDATION 1: The Commission should formally adopt, defendant/respondent and, ultimately, on the respondent’s and uniformly apply, a policy that it will use administrative ability to obtain a full, fair, and impartial adjudication. proceedings to adjudicate contested matters if: The Division of Enforcement, as the prosecutor, should • The proceeding is based upon well-established legal consider the different aspects and implications of the two principles that have been adopted by Article III courts; forums in making its recommendation to the Commission. However, the Commissioners acting as a decisional body • The factual predicate for the alleged violations should not view their role in the same way as a prosecutor. is substantially equivalent to those asserted and The Commission has a responsibility to consider the broader upheld in past enforcement actions; and statutory questions of what is “necessary and appropriate in the public interest for the protection of investors.” • The matter does not entail an extensive investigative More broadly, it must also adhere to its multiple statutory record such that considerations of fairness warrant mandates to protect investors, promote capital formation, providing the respondent/defendant with adequate and ensure fair and orderly markets. Accordingly, the opportunity for pretrial discovery and time within Commission should predicate its forum selection decisions which to fully review the investigative record; or solely upon a clear determination that its choices uphold and further its responsibility as a government agency to • The staff is alleging a cause of action that may be promote the public interest and the protection of investors, brought only in an administrative proceeding, such while respecting the important rights of those whose as a stop order proceeding, a section 12(j) revocation conduct the SEC chooses to scrutinize. proceeding, a license revocation or bar proceeding, or a rule 102(e) proceeding, or proceedings based upon The Commission must recognize that its decisions, a failure reasonably to supervise or causing a violation. even those that are fundamentally a matter within www.CenterForCapitalMarkets.com 3 RECOMMENDATION 2: The Commission should create RECOMMENDATION 6: The Division should consistently a procedure to enable respondents to challenge the provide access to its investigative files with adequate time choice of forum by filing a motion for change of forum to permit a meaningful response to a staff Wells Notice or with the Commission prior to institution of the proceeding request for a white paper
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