More shots fired this week in the continuing war of words at the Securities and Exchange Commission about whether the SEC is unfairly taking enforcement action against chief compliance officers.
This time, Commissioner Luis Aguilar again defended the agency (as he has done several times this spring) with a statement published Monday calling for the SEC to be more clear in its enforcement orders—so people will not get the wrong impression that the agency is looking to scalp CCOs as part of its enforcement regime.
“When a Commission enforcement action involves a violation by the CCO, there is no doubt that the larger CCO community will take notice and try to learn as much as possible about the behavior that resulted in the Commission’s enforcement action,” Aguilar said. “Therefore, the importance of clarity in commission orders, especially the ones involving CCOs, cannot be overstated.”
The larger CCO community has indeed taken notice at SEC enforcement this spring, as the agency twice imposed sanctions on compliance officers at investment advisory firms. Those actions prompted Aguilar’s political bête noir, Republican Commissioner Dan Gallagher, to publish a statement in June scorching the SEC’s decision to punish CCOs as counter-productive. Aguilar first fired back with his own statement defending the SEC in June, and now this follow-up comes today.
The two enforcement actions that started this summer’s contretemps were against the chief compliance officer of Blackrock Advisors, doled out in April (fine paid by the compliance officer: $60,000); and against the CCO of SFX Financial Advisory, handed down on June 15 (fine paid by the compliance officer: $25,000).
Aguilar’s latest declaration, however, seems motivated by an SEC enforcement action just last week. On Aug. 6 the SEC imposed sanctions on another investment advisory firm, Parallax Investments Corp., and fined chief compliance officer Robert Falkenberg $40,000 as part of that action. In a footnote to his statement, Aguilar pointed out that Falkenberg failed to establish procedures to protect client assets, failed to draft and maintain a code of conduct, and even lied to SEC examiners that he had conducted an annual review of Parallax’s compliance procedures when in fact he had not. “This is unacceptable behavior, especially for a CCO whose very job is to prevent others from violating the law,” Aguilar wrote.
Aguilar stressed in his statement that when the SEC is trying to settle a case of misconduct, the facts included in the final, published settlement are often subject to intense negotiation—and facts that might help the public understand the full scope of misconduct (by a chief compliance officer or anyone else) end up excluded from the published statement in the interest of settling a case expediently. So the more clear an SEC order can be about relevant facts, and why people deserved the punishment they received, the better.
“In dealing with this tension, the Commission and its staff must avoid creating confusion and must strive to make sure that issued orders—typically the only public record of what transpired in a particular case—are fulsome and transparent, especially in describing the misconduct that resulted in an enforcement action,” he said.
This may be the last word from Aguilar and Gallagher on CCO liability; both are planning to depart the SEC this summer. For his part, Gallagher already gave his farewell address as a commissioner on Aug. 4 at the U.S. Chamber of Commerce, where he gave a rhetorical raspberry to the Dodd-Frank Act and then exited the public stage. Both will be missed.