Four Ways To Improve SEC Enforcement

Abstract

The enforcement program at the Securities and Exchange Commission has been the subject of severe criticism in recent years. The occasional reforms that have been adopted have not begun to root out the deeper, structural defects with the investigation and charging process at the SEC. Reforms going to the essence of the process and the way the Division of Enforcement operates are needed.

The three fundamental problems with SEC enforcement are that the Commission and the Division of Enforcement (1) advance legal theories that are outside settled boundaries, (2) misunderstand or mischaracterize the factual record, and (3) fail to accord fair and impartial treatment to persons being investigated. The result is an unacceptably high number of cases that lack merit, meaning either that the extensive evidence collected by the SEC does not support the alleged violation or that the case relies on a legal theory that is not likely to be accepted by a court.

The SEC can do better and be more effective. It can extend more fairness and consideration to those being investigated without any damage to tough enforcement. The paper describes four ways to improve SEC enforcement:

• use established and accepted legal theories and do not base claims on new, untested liability theories,

• create an objective and balanced investigative record that considers both potential wrongdoing and innocent explanations,

• apply rigorous, neutral standards before opening investigations and initiating cases. A formal investigation should be based on credible evidence justifying a reasonable suspicion of a possible violation and on an evaluation of enforcement priorities. The Commissioners should not authorize a proceeding unless they believe a reasonable person would conclude that the SEC is more likely than not to prevail on the facts and the law and believe that a proceeding would serve broad and legitimate enforcement goals, and

• substantially shorten investigations. Each member of the staff should make an effort to limit the number of documents requested and the number of individuals called for testimony.

A fifth possible reform, discussed in an earlier article, is that the SEC should significantly narrow investigative subpoenas.

Keywords: SEC enforcement, SEC subpoena, length of SEC investigation, cost of SEC investigation, Section 20(b), fair notice of unlawful conduct