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SEC Chair Clayton Highlights Past Progress and Risks for FY 2019

Steven.Lofchie@cwt.com's picture
Commentary by Steven Lofchie

SEC Chair Jay Clayton outlined progress made on the agency's 2018 agenda, key initiatives planned for 2019 including review of the proxy process, and risks associated with Brexit, the LIBOR transition and cybersecurity.

In a recent speech, Chair Clayton stated that in 2019, the SEC intends to:

  • complete the proposed rules regarding the standards of conduct for financial professionals, e.g., Regulation Best Interest;
  • review the private offering framework to improve capital formation and access to investment opportunities;
  • provide that SEC regulations encourage long-term, rather than short-term, investment; and
  • address concerns regarding "distributed ledger technology, digital assets and initial coin offerings."

Mr. Clayton offered a number of observations about the proxy process, which will be a subject of review for the SEC in 2019. He noted a consensus among panelists at a recent SEC proxy roundtable that "the proxy 'plumbing' needs a major overhaul." Mr. Clayton opined that the SEC should review the ownership and resubmission thresholds for shareholder proposals, which has been $2,000 for the last 20 years. Mr. Clayton said the agency will look at clarification of the different responsibilities of proxy advisors and investment advisers and information as to proxy advisers' analytical and decision-making processes. He stated that some matters which are put to a shareholder vote should be analyzed on a company-specific basis, rather than a "more general market or industry-wide policy." Mr. Clayton also said that the SEC should consider (i) the existing structure for addressing conflicts of interest at proxy advisory firms, and (ii) whether investors have "effective access to issuer responses to information in certain reports from proxy advisory firms."

Mr. Clayton added that the SEC will continue to monitor risks to U.S. investors and markets arising from (i) the UK's exit from the European Union, (ii) the transition away from LIBOR, and (iii) cybersecurity breaches.

Commentary

Chair Clayton's view that the SEC should discourage short-term investment is debatable. The more liquid the equities markets are, the more attractive they are; discouraging short-term investment is clearly antithetical to liquidity. By contrast, the remaining issues enumerated by Mr. Clayton are clearly at the heart of the SEC's reasons for being, as set out in the securities laws.  

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