SEC Matters
Published date | 01 July 2015 |
Author | Donald A. Walker |
Date | 01 July 2015 |
DOI | http://doi.org/10.1002/jcaf.22075 |
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© 2015 Wiley Periodicals, Inc.
Published online in Wiley Online Library (wileyonlinelibrary.com).
DOI 10.1002/jcaf.22075
SEC Matters
Donald A. Walker Jr.
SEC Commissioners’ Speeches
One emerging trend in
public statements available on
the Commission’s website is
the increase in commentaries
by individual commissioners
and the chair of the Commis-
sion. Those statements provide
an interesting window into the
thinking of individual com-
missioners and often include
statements that describe open
disagreements between com-
missioners who have taken both
sides of an issue. Chair White
and the other commissioners
have provided speech commen-
tary on major issues at 2015
forums such as the Practicing
Law Institute’s SEC Speaks, the
Annual Conference on Securi-
ties and Business Law, and the
Corporate Counsel Institute at
Georgetown University.
The speeches of the chair
address major issues that she
believes deserve careful con-
sideration by registrants, their
officers and directors and
shareholders, and counsel and
auditors. Recently, the chair
has given prominence to two
topics: timely full disclosure;
and disqualifications, waivers,
and exemptions.
Recently, the Division of
Enforcement has brought a
number of cases regarding
going private transaction dis-
closures. The message in those
cases is that registrants are
responsible for providing timely
full and accurate disclosures
about going private transac-
tions, strongly stressing that
when terms of a transaction
change after initial disclosures
are made, timely full disclo-
sures should be made in SEC
filings. This is especially an
issue when a longer stretch of
time elapses between initial
disclosure and stockholder and
company actions to complete
a transaction. The chair, as has
the Division of Enforcement,
has stressed the importance not
only of initial disclosure fil-
ings, but also of the updating
function to keep shareholders
aware of changes and the cur-
rent state of transactions in
progress. The stress on updat-
ing transaction disclosures
is consistent with the SEC
staff emphasis on timely and
accurate disclosures in current
reports filed under the 1934
act. This is a common recurring
theme for which recent enforce-
ment cases serve as a reminder.
The chair, on March 12,
2015, at the Corporate Coun-
sel Institute initiated her dis-
cussion of disqualifications,
waivers, and exemptions as
follows:
Today, I will discuss my
views on how we have
and should be exercising
our waiver authority. My
bottom line is that as we
have been doing, we must
carefully scrutinize each
waiver decision, faithfully
apply the applicable legal
standards and always keep
in mind the purpose of
the inquiry—to determine
whether the entity or indi-
vidual, going forward, can
engage responsibly and
lawfully in the activity at
issue in the particular dis-
qualification. If the answer
is “no” at the end of that
analysis, we should deny
the waiver, no matter the
size of the institution or
consequences. But waiv-
ers were never intended
to be, and we should not
use them as, an additional
enforcement tool designed
to address misconduct
or as an unjustified
mechanism for deterring
misconduct....
As you can see from
these examples, the poten-
tial scope of disqualifica-
tions under the federal
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