Securities And Exchange Commission Staff Research Articles

The SEC's September spike: Regulatory inconsistency within the fiscal year

We examine whether performance reporting leads to inconsistent enforcement at the Securities and Exchange Commission (SEC). In a sample of over 13,000 SEC enforcement actions, we show that SEC staff respond to performance-reporting pressures and file more enforcement actions in September, the final month of the SEC's fiscal year, than in any other month. The increase in case volume in September is not fully explained by staff filing more procedural cases or accelerating case filings. Instead, SEC staff pursue less complex cases and agree to more lenient financial and non-financial sanctions to increase case volume in September. We attempt to rule out alternative explanations for our results, including natural SEC workflow and resource constraints. Overall, our findings suggest that performance reporting creates agency conflicts that lead to regulatory inconsistency within the fiscal year.

Regulator Continuity and Decision-Making Quality: Evidence from SEC Comment Letters

ABSTRACTStaff at the U.S. Securities and Exchange Commission (SEC) conduct recurring reviews of firms’ filings to deter misconduct and facilitate investor access to high-quality information. We identify the names of SEC staff who work on a comment letter and examine whether their prior involvement (i.e., continuity) is associated with comment letter quality. Our results are consistent with continuity leading to lower-quality comment letters. Continuity is associated with fewer substantive comments, agreed-upon disclosure changes, and greater similarity between consecutive comment letter reviews. These results are consistent with continuity increasing staffs’ tendency to focus on familiar issues and overlook other areas of potential deficiencies. Time, changes in firms’ operations, and increasing staffs’ feelings of accountability can mitigate the negative effect of continuity on comment letter quality. Our study suggests benefits to a fresh perspective in regulatory monitoring.JEL Classifications: G18; M41; M48.

SEC Rule 14a-8 shareholder proposals: No-action requests, determinants, and the role of SEC staff

Under SEC Rule 14a-8, shareholders can petition management to include a topic for vote on the annual proxy statement. In response, management may request no-action relief from the Securities and Exchange Commission (SEC) staff to exclude unwelcome proposals. Using a sample of 3,040 no-action letters from the SEC between 2008 and 2019, I examine the determinants of the SEC staff’s decision to grant no-action relief. I find that legal characteristics, pressures on the staff, and proposal attributes have a statistically significant association with the SEC’s decision. Beyond these factors, I find evidence individual SEC staff members differ in the likelihood that they grant no-action relief. On average, these staff members appear to add value, as evidenced by a positive market response to their decisions, but this favorable valuation effect is concentrated among relatively more experienced staff.

Regulator Continuity and Decision-Making Quality: Evidence from SEC Comment Letters

High quality financial information depends on the effectiveness of regulators charged with ensuring compliance with financial reporting regulation. We use the Securities and Exchange Commission (SEC) filing review process as a setting to test whether individual regulators’ prior involvement (i.e., review team continuity) is associated with the quality of their decision-making. Although continuity may allow regulators to develop valuable knowledge to improve their decision-making, our results are more consistent with continuity leading to lower-quality reviews. Specifically, we find that review team continuity is associated with shorter reviews that ask fewer questions related to authoritative guidance or materially deficient areas, are more similar to the prior review, and are less likely to elicit an acknowledgement that the firm will change their filings. Our inferences are robust to using SEC staff turnover as an instrument for continuity. Overall, our results suggest new team members may provide a fresh perspective.

SEC Rule 14a-8 Shareholder Proposals: No-Action Requests, Determinants, and the Role of SEC Staff

Under SEC Rule 14a-8, shareholders have the right to petition management to include a topic for vote on the annual proxy statement. In response, management may request no-action relief from the Securities and Exchange Commission (SEC) staff to exclude unwelcome proposals. Using a sample of 2,972 no-action letter responses from the SEC between 2008 and 2019, I examine the determinants of the SEC staff’s decision to grant no-action relief. I find the legal characteristics, pressures on the SEC staff, and proposal attributes have a statistically significant association with the SEC’s decision. Beyond these factors, I find evidence individual SEC staff members differ in the likelihood they grant no-action relief, suggesting heterogeneity among SEC staff characteristics is important for understanding no-action relief decisions.

SEC announces new guidance for public company disclosures on cybersecurity risks

PurposeTo discuss the new guidance on public companies’ disclosure obligations regarding cybersecurity risks and incidents, which was recently unanimously approved by the Securities and Exchange Commission (SEC).Design/methodology/approachOutlines the general disclose requirements and the materiality standard set forth by the SEC, explains specific guidance on public company cybersecurity disclosure, and discusses cybersecurity risk management and insider trading policies.FindingsIn addition to clarifying the disclosure requirements with respect to cybersecurity issues, the article discusses two additional areas of concern identified by the New Guidance that public companies should consider in the context of cybersecurity and related disclosure. First, public companies must design and maintain policies and procedures to help manage cybersecurity risks and respond to incidents as they occur. Second, public companies should consider adopting insider trading policies that specifically prohibit management and other corporate insiders from trading on the basis of material non-public information regarding a cybersecurity risk or incident.Originality/valuePractical analysis of the guidance on disclosure obligations regarding cybersecurity risks and incidents, including discussion surrounding two aspects of cybersecurity not previously addressed in prior SEC staff guidance on the topic.

SEC staff issues guidance on Rule 14a-8 calling for board involvement in evaluating shareholder proposals

PurposeThis paper examines a legal bulletin issued by the staff of the Securities and Exchange Commission (SEC) in November 2017 that provides significant new guidance to SEC-reporting companies on the application of the “ordinary business” and “economic relevance” exceptions in Rule 14a-8 under the Securities Exchange Act of 1934. Rule 14a-8 governs an SEC-reporting company’s obligation to include shareholder proposals in its proxy materials for a shareholder meeting.Design/methodology/approachThis paper provides in-depth analysis of the new interpretive guidance against the background of continuing controversy between companies and shareholder-proponents over the bases on which companies should be permitted to exclude from their proxy materials proposals that proponents believe raise social, ethical or other policy issues that are appropriate for shareholder action.FindingsIn acting on a company’s request to exclude a proposal, the SEC staff must make difficult judgments regarding the connection between policy issues reflected in the proposal and the company’s business operations, which the company’s directors and officers seek to conduct free of inappropriate shareholder oversight. In the new guidance, the staff calls for assistance in making these judgments by soliciting greater board-level involvement in the exclusion determination and encouraging the company in its no-action submission to discuss the board’s analysis and decision-making process. Greater board participation should encourage a more probing assessment of the considerations weighed in these determinations.Originality/valueThis paper provides expert guidance on a major new SEC disclosure requirement from experienced securities lawyers.

U.S. Securities and Exchange Commission (SEC) Staff issues no-action relief to facilitate implementation of Markets in Financial Instruments Directive II (MiFID II) research provisions

PurposeThe purpose of this paper is to summarize and discuss the implications of three related U.S. Securities and Exchange Commission (SEC) no-action letters dated October 26, 2017 that seek to address the provisions of MiFID II related to “inducements”.Design/methodology/approachProvides background information regarding MiFID II and summarizes each of the three SEC Staff no-action letters: the SIFMA letter, the ICI letter and the AMG letter.FindingsThe no-action letters provide market participants with increased clarity as to how certain aspects of their business activities, in particular the “bundling” or “unbundling” of payments for research and execution, can comply with potentially competing systems of regulations.Originality/valuePractical guidance from experienced financial industry and investment management lawyers.

Regulatory Oversight of Financial Reporting: Securities and Exchange Commission Comment Letters

AbstractThe Securities and Exchange Commission (SEC) reviews company filings (10‐Q, 10‐K, S‐1, etc.) submitted to them. If a review identifies potential deficiencies, the SEC staff sends the company a comment letter seeking clarification, additional information, and ultimately, perhaps, revision of the filing or future filings. We examine the content, resolution, and ensuing informational consequences of SEC comment letters. The content analysis shows that nearly half of all comments involve accounting application, financial reporting, and disclosure issues. More than 17 percent of our sample cases result in immediate amended filings to resolve the issue(s) arising from the comment letters, and financial statements and/or footnotes are frequently revised. Following comment letter resolution, the adverse selection component of the bid‐ask spread declines and Earnings Response Coefficients (ERCs) increase. Our results provide little support for the conjecture that the market interprets the receipt of a comment letter as a signal that the firm has poor reporting quality. Finally, we find no evidence that comment letter firms increase the quantity or change the type of voluntary disclosure, thereby eliminating a possible competing explanation for the improved information environment. We conclude the SEC's oversight has beneficial informational effects.

Improvements in SEC Economic Analysis Since Business Roundtable: A Structured Assessment

Several D.C. Circuit decisions that remanded regulations to the Securities and Exchange Commission (SEC) between 2005 and 2011 provide a natural experiment that permits researchers to identify the correlation between judicial review and the quality of regulatory agencies’ economic analysis and its use in regulatory decisions. Subsequent to the D.C. Circuit decisions, the SEC staff in 2012 issued new guidance for economic analysis. This paper offers a structured assessment of the economic analysis accompanying a sample of post-2012 SEC regulations, using the evaluation method developed for the Mercatus Center at George Mason University’s Regulatory Report Card. SEC economic analysis improved substantially following the 2012 guidance. Improvement occurred on all major elements that the SEC staff identified as important in its guidance: explanation of the justification for the rule, clear definition of the baseline against which to measure the rule’s economic impacts, identification and discussion of reasonable alternatives, and analysis of the benefits and costs of the proposed rule and the principal alternatives. The improvement occurred both on criteria that address “conceptual” economic analysis and on criteria that require quantification of benefits or costs to receive full credit. Although substantial room for improvement still exists, the court decisions appear to have motivated the SEC, in just a few years, to close the gap between the quality of its economic analysis and the average quality of economic analysis produced by executive branch agencies.

SEC issues guidance on business continuity planning for registered investment companies

Purpose To explain guidance from the US Securities and Exchange Commission (SEC) Division of Investment Management concerning registered investment companies’ business continuity and transition plans (BCPs). Design/methodology/approach Discusses the SEC’s concerns with fund complexes’ operational complexity and reliance on technology and third-party service providers, lists notable practices in the BCPs of some registered fund complexes, and addresses practical considerations. Findings While the SEC staff recognizes that it is not possible for a fund complex to anticipate or prevent every business continuity event, the staff also believes that fund complexes’ preparedness would be enhanced if in addition to complying with the federal securities laws, fund complexes and their advisers consider additional factors related to BCPs discussed in the Guidance. Practical implications It would be prudent for the fund boards to consider discussing the Guidance with fund investment advisers and fund CCOs to determine the status of fund complex BCPs and any gaps related to the Guidance. Boards may also want to review with their counsel the current BCP reporting framework and any enhancements needed in light of the Guidance. Originality/value Practical guidance from experienced securities, fund management, regulatory and compliance lawyers.

US Securities and Exchange Commission settles administrative action against fund manager concerning use of fund assets to pay management company expenses

Purpose – To explain a recently settled administrative proceeding that the US Securities and Exchange Commission (SEC) brought against a private fund manager in connection with the use of fund assets to pay for the manager’s operating expenses. Design/methodology/approach – Explains the major takeaways from the settled case, and places them in the context of prior administrative proceedings and public statements from SEC staff. Findings – This case is the latest example of the SEC taking action against a private fund manager related to the improper deduction or allocation of expenses, and related disclosure lapses, and further cases are expected in the future. Practical implications – Private fund managers should examine their practices involving the reimbursement and allocation of expenses and related disclosures to fund investors. Originality/value – Practical guidance and explanation from experienced securities regulatory lawyers.

SEC staff issues money market fund reform frequently asked questions

Purpose – To explain the background and details of the responses from the Staff of the Division of Investment Management of the US Securities and Exchange Commission (SEC) to certain frequently asked questions (FAQs) regarding the July 23, 2014 amendments to Rule 2a-7 and other rules that govern money market funds under the Investment Company Act of 1940 (1940 Act). Design/methodology/approach – In July 2014, the SEC adopted sweeping amendments to Rule 2a-7 and other rules that govern money market funds under the 1940 Act (Amendments). The Amendments (i) require “institutional” money funds to operate with a floating net asset value (NAV), rounded to the fourth decimal place (e.g. $1.0000) and (ii) permit (and, under certain circumstances, require) all money funds to impose a “liquidity fee” (up to 2 per cent) and/or “redemption gate,” once weekly liquidity levels fall below the required regulatory threshold. The article briefly discusses the background and the events leading up to the FAQs and describes key responses from the Staff on a variety of issues. Findings – The Amendments set forth sweeping changes to money fund regulation and will have a profound effect on the money fund industry. Although the most significant provisions of the Amendments – the floating NAV requirement and the imposition of liquidity fees and redemption gates – will not go into effect for two years, the changes to the industry will be apparent almost immediately. The FAQs provide clarity on a number of issues that are relevant to the money fund industry. Practical implications – Money fund managers and boards of directors should begin assessing the potential impact of the Amendments and develop a schedule to come into compliance. Originality/value – Practical guidance from experienced financial services lawyers.

SEC issues proposed investment adviser reporting and disclosure rules

Purpose – To explain proposed rules and amendments recently issued by the USA Securities and Exchange Commission (SEC) that would impose more detailed reporting requirements for investment advisers that file Form ADV. A companion article describes the SEC’s proposed registered investment company reporting rules which were issued simultaneously. Design/methodology/approach – Describes the SEC’s reasoning for collecting more detailed data, introduces the proposed separate account reporting requirements for SEC-registered investment advisers, explains proposed amendments to Part 1A of Form ADV, describes a proposed codification of SEC staff positions that provide for so-called “umbrella registrations” by closely related advisory firms, and details two proposed amendments to Advisers Act Rule 204-2, the books and records rule, which would require investment advisers to maintain additional materials related to the calculation and distribution of performance information. Findings – Many questions still remain as to how the final rules will eventually take shape; however, it is evident that investment advisers will be subject to a wider array of reporting requirements. Investment advisors are likely to incur increased costs as a result of the proposed rules and amendments, and production of the reports could necessitate a revamp of their various internal procedures. Also, access to additional and enhanced information will have consequences for investment companies with respect to SEC examinations and enforcement activity. Practical implications – Investment advisers should understand that detailed new regulatory reporting is coming and, more specifically, separately managed account clients of investment advisers should be made aware of the proposed reporting requirements. Originality/value – Practical guidance from experienced investment funds lawyer.

SEC issues Staff Legal Bulletin after four-year comprehensive review of proxy system

Purpose – To provide an overview of the guidance for proxy firms and investment advisers included in the Staff Legal Bulletin released this year by the Securities and Exchange Commission (SEC) after its four-year comprehensive review of the proxy system. Design/methodology/approach – Discusses briefly the context in which the SEC’s review was conducted; the general themes of the guidance provided; the most notable aspects of the guidance; and the matters that were expected to be, but were not, addressed by the SEC. Findings – The guidance does not go as far in regulating proxy advisory firms as many had anticipated it would. The key obligations specified in the guidance are imposed on the investment advisers who engage the proxy firms. The responsibilities, policies and procedures mandated do not change the fundamental paradigm that has supported the influence of proxy firms – that is, investment advisers continue to be permitted to fulfill their duty to vote client shares in a “conflict-free manner” by voting based on the recommendations of independent third parties, and continue to be exempted from the rules that generally apply to persons who solicit votes or make proxy recommendations. Practical implications – The SEC staff states in the Bulletin that it expects that proxy firms and investment advisers will conform to the obligations imposed in the Bulletin “promptly, but in any event in advance of [the 2015] proxy season.” Originality/value – Practical guidance from experienced M&A lawyers.

SEC issues guidance update regarding enhanced mutual fund disclosure

Purpose – To explain a guidance update recently issued by the USA Securities and Exchange Commission (SEC) Division of Investment Management that furthers the SEC’s goal of clear and concise, user-friendly disclosure by focusing on certain specified requirements of Form N-1A and the rules under the Securities Act of 1933. Design/methodology/approach – Discusses five areas where the SEC staff had been providing significant numbers of comments related to mutual fund disclosure after the adoption of the amendments to Form N-1A in 2009 by summarizing the applicable instructions of Form N1-A and/or rule and the SEC staff’s observations with respect to such instruction or rule. Findings – Funds should ensure that during their next annual update they review their prospectus disclosure in light of this guidance update and make necessary changes so that the disclosure is clear and concise and not overly technical. Originality/value – A concise summary of the SEC’s guidance update from experienced investment management lawyers.

Tweeting corporate disclosures: SEC staff issues guidance permitting hyperlinks to cautionary statements and legends in social media communications

Purpose – To review guidance issued in April 2014 by the staff of the USA Securities and Exchange Commission (SEC) that clarifies how participants in regulated securities offerings, business combinations, proxy contests, and tender offers may transmit required cautionary statements and legends to the securities marketplace via social media technology platforms whose space limitations preclude display of the full text of the required statements. Design/methodology/approach – Examines the new SEC staff interpretative guidance in light of the tension between the disclosure requirements of the SEC’s communications rules and the characteristics of some social media platforms that do not permit compliance with the SEC rules in the same manner as traditional paper-based disclosure vehicles. Findings – The staff’s new guidance permits issuers and other parties to comply with the communications rules by using in their social media transmissions an active hyperlink that connects to the text of the required statements, thereby dispelling the legal uncertainty about the hyperlinking approach that has discouraged parties from using some social media outlets to disseminate information about their transactions. The article notes that the staff’s conditions place important limitations on the use of hyperlinks, especially in connection with the use of popular social media platforms such as LinkedIn, Facebook, and others that do not impose a cap on the number of characters or amount of text that may be included in a communication, and fails to address the permissibility of other approaches to overcoming the space limitations of some platforms. Originality/value – Provides expert guidance from experienced securities lawyers.

Private Fund Disclosures Under the Dodd-Frank Act

Title IV of the Dodd-Frank Act requires the Securities and Exchange Commission (SEC) to collect sensitive proprietary information from private fund advisers. Prior studies suggest that the SEC’s mandated collection of private fund data in Form PF created several core challenges for the private fund industry and for the SEC. This article presents the results of a survey of SEC-registered investment advisers to private funds after the SEC’s first mandatory collection of private fund data. The key findings of this study indicate that the majority of private fund advisers responding to the survey incurred less than $10,000.00 to prepare their initial data reporting to the SEC, with the cost of subsequent annual Form PF filings at about half the initial cost. Larger private fund advisers, required to file quarterly, are faced with substantially higher compliance cost, both for their initial data reporting and for subsequent quarterly filings. The data analysis in this study affirms SEC cost estimates for smaller private fund advisers’ Form PF compliance costs. The SEC appears to have overestimated the costs of Form PF compliance for larger private fund advisers. While the data analysis in this study suggests that the overall effect of private fund disclosure requirements on the private fund industry is moderate, the data analysis also indicates that the data reporting requirements for private funds and the corresponding SEC forms can be further improved. The majority of SEC-registered private fund advisers identified the ambiguity of Form PF data reporting requirements as the most pressing issue. However, the majority of respondents also considered their existing reporting systems adequate for capturing the information required by the SEC and agreed with the SEC’s definitions and instructions for Form PF. Respondents predominantly assessed the best level of guidance available from the SEC staff to assist in private fund advisers’ data reporting efforts as sufficient or good.

An investigation of SEC “Speech GAAP”

This study investigates the financial reporting regulation effects of the Securities and Exchange Commission (SEC) staff comments made during the American Institute of Certified Public Accountants (AICPA) Annual Current SEC & Public Company Oversight Board (PCAOB) Developments Conference in Washington, D.C. (SEC Conference). At this conference, the SEC staff communicates its preferences about areas where it believes companies are misapplying GAAP (Generally Accepted Accounting Principles). We call this communication SEC Speech GAAP. One outcome of the SEC Conference may be that companies re-evaluate their previous financial reporting by restating their financial statements. We find, first, that firms with restatement issues similar to those covered at the SEC Conference experience a decrease in the association between earnings and future cash flows after the restatement. Second, we find little market reaction to the disclosure of restatements related to SEC Conference issues, but the disclosure of non-conference related restatement issues has a significantly negative affect on investors’ valuation decisions. Our findings suggest that SEC Speech GAAP is associated with financial statements that are less informative to investors and investors find the valuation consequences of restatements prompted by SEC Speech GAAP to be less important than the valuation consequences for restatements prompted for other reasons.

The Regulation of Non-GAAP Disclosure: The Effect of New Compliance and Disclosure Interpretations by the SEC in 2010

The U.S. Securities and Exchange Commission (SEC) issued new a Compliance and Disclosure Interpretation (CDI) in 2010, relaxing the stringent enforcement requirements of Regulations G and S-K. In this paper, we investigate whether this new, non-binding, SEC staff interpretation is an economically significant event and whether they allowed for a change in a firm’s voluntary disclosure. Using hand-collected non-GAAP earnings disclosure for S&P500 firms from 2006 to 2013, we find significantly positive 3-days cumulative abnormal returns on the announcement of new CDI announcement only for firms with informative non-GAAP reporters prior to the announcement, suggesting investors anticipate the benefits of relaxed interpretive guidance to be limited to informative non-GAAP reporters and investors view SEC staff interpretations as important regulatory actions that affects managers’ behaviors. We also find that managers more frequently use aggressive non-GAAP reporting in the post-CDI period, especially when managers have incentives to report non-GAAP earnings more aggressively and when the governance system is poor. This paper contributes to the voluntary disclosure and regulation literatures by providing empirical evidence that SEC interpretative guidance is economically important events and effective in shaping firms’ disclosure practices.