For compliance programs to be effective, bad behavior must be reported internally to management and an avenue must exist to report externally to regulators and the media. For whistleblowers to be willing to come forward, it is critical that they are protected.
On May 18, 2022, the United States Court of Appeals for the Fifth Circuit issued a novel and divisive decision that greatly restricts the administrative enforcement powers of the SEC and its use of Administrative Law Judges (ALJs) in Jarksey v. SEC. Although much deliberation has been had over the implications and immediate impact of this ruling, the takeaway is that the Securities and Exchange Commission (SEC) may be facing significant challenges to its internal enforcement procedures in the near future.
The Great Financial Crisis of 2008 was a story of greed. In markets where incentives lead to bad behavior, disparately affecting a great deal of society, we rely on regulatory oversight. A domino effect of decisions spanning decades resulted in a global economic disaster, but it could have been prevented with effective regulators.
For several years, broker-dealers and investment advisory firms have typically required harmed investors to dispute matters through arbitration rather than the court system. However, the House of Representatives’ Financial Services Committee has approved a bill aimed at prohibiting mandatory arbitration commonly imposed by broker-dealers and investment advisory firms. H.R. 2620, known as The Investor Choice Act, restricts investment advisors and broker-dealers from including pre-dispute binding arbitration clauses in their client agreements. The Investor Choice Act addresses “long-standing and deeply unfair practices of forcing customers to resolve their claims through arbitration instead of as part of a class action,” according to Maxine Waters, Chairwoman of the Financial Services Committee.
Proxy access is not about giving shareholder’s rights, it is about checking C-suite power so that everyone wins instead of just the CEOs. Proxy access has the potential to address some of the pressing issues with corporate power. Corporate power and influence are concentrated in the board of directors, proxy access gives shareholders the opportunity to infiltrate this exclusive “inner circle” of power. Shareholder access to the board can push change towards greater diversity in the boardroom and demand greater transparency and compliance.
As a part of the large and cumbersome Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”), Section 1071 was enacted to amend the Equal Credit Opportunity Act (15 U.S.C. 1691 et. seq.) to impose data collecting requirements on financial institutions. Pursuant to Section 1071 (the “Rule”), financial institutions are required to compile, maintain, and submit to the Consumer Financial Protection Bureau (“CFPB”) certain information concerning credit applications by women-owned, minority-owned, and small businesses. The Rule was not slated to go into effect until the CFPB issues necessary implementing regulations. Unfortunately, nearly 8.5 years later, there is still no guidance. Consumers and financial institutions alike are at a sort of standstill, unclear on the contours of its reporting requirements. In November of 2019, the CFPB published a letter to financial institutions promising to develop rules “expeditiously;” the CFPB later hosted an information-gathering symposium on the Rule, yet there is still no clear guidance.
In a 9-0 decision, the Supreme Court on February 22, 2018 decided Digital Realty Trust, Inc. v. Paul Somers, a case challenging the definition of a whistleblower under the Dodd-Frank Wall Street Reform and Consumer Protection Act, commonly referred to as Dodd-Frank. The court held that “Dodd-Frank’s anti-retaliation provision does not extend to an individual, like Somers, who has not reported a violation of the securities laws to the SEC [Securities and Exchange Commission].” This is a narrowing of the definition of whistleblower and as such has a number of implications for companies and their compliance departments.
New discussions in the U.S. Senate indicate a likely repeal of 2010’s controversial Dodd-Frank Act. Designed in response to the 2008 economic crisis, the Dodd-Frank Act implemented regulations on banks and lending agencies to provide greater financial stability and consumer protection. The fundamental purpose of Dodd-Frank was to increase oversight and transparency among financial institutions. However, the Dodd-Frank Act has been the target of much criticism, most notably that its imposed regulations stifle the growth of smaller institutions. As of March 2018, Senate discussions indicate an intent to lay the foundations to remove this regulation.
In September 2017, United States economic markets implemented swap-regulating rules to reduce risk to U.S. investment firms. Signed into law in 2016, this regulation curbs the risk associated with swap derivatives in the United States. The Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Financial Conduct Authority, and the Federal Housing Finance Agency (the “Agencies”), constructed a joint rule requiring taxpayer-insured banks and financial institutions to collect greater collateral and provide greater transparency when involved in swap derivative agreements.