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A Look Back on Six Years of Regulatory Enforcement at the SEC

Bruce Carton | September 9, 2014

“May you live in interesting times.”

Although that expression appears on the surface to be a blessing, it is actually thought to be a Chinese curse, with “interesting” meaning dangerous or turbulent.

This month, as I look back on six years of writing this column on regulatory enforcement which I began in August 2008 and will wrap up with this last installment, the expression seems fitting. The last six years have been arguably the most tumultuous, disruptive, and transformative years in the history of the Securities and Exchange Commission’s Enforcement Division. They have been interesting times indeed for the SEC, not to mention a blessing for someone writing about the agency on a regular basis.

When I began writing this column the SEC enforcement world—and the world’s impression of the SEC—was quite different than it is today. The SEC and its enforcement efforts operated largely under the radar without a lot of attention from the media. It was quite unusual at that time to see any kind of in-depth analysis of the SEC or the Enforcement Division’s resources, challenges, successes, or failures. When the SEC did receive attention, however, it was generally positive—as it had been for many years. Created as a stand-alone entity in 1972, the Division of Enforcement was widely regarded in August 2008 as the “gold standard” for regulatory agencies—an example of lean and effective government in action.

Consider, for example, the speech that then-SEC Chairman Christopher Cox delivered in mid-2007 in which he discussed the mission, record, and legacy of the Enforcement Division. “Never has the nation been blessed with a more professional team in enforcement in all of this agency’s history,” Cox said, as he recounted the Division’s successes in high-profile cases such as Drexel Burnham Lambert, Michael Milken, Enron, and many others. He described the enforcement staff as “1,100 smart, thoughtful, hardworking, measured individuals who come to work each day looking for the right answer. They are honest people who are committed to fairness.” He stated that “America can be very proud of them. I know I am.”

But then, just a month after I began writing about the SEC for Compliance Week, the solid ground beneath the agency began to shift dramatically. First, a global financial crisis began to unfold with previously unimaginable consequences. In September 2008 alone, Fannie Mae and Freddie Mac were taken over by the government, Lehman Brothers filed for bankruptcy, American International Group accepted an $85 billion bailout by the federal government, and the Dow Jones Industrial Average experienced its worst one-month decline ever.

The past six years have shown that the SEC will always be under the microscope and subject to second-guessing and criticism from the media, Congress, Wall Street, and others. As I write this final column, however, it seems to me that the SEC’s enforcement program has regained its footing and is back on the offensive.

As the finger-pointing began, commentators and many others began to take a closer look at the SEC. Critics charged that it was too passive in policing the wrongdoing that precipitated the financial crisis. Fairly or unfairly, the question of “Where Was the SEC?” began to circulate. Then-presidential candidate John McCain even added that SEC Chairman Christopher Cox had “betrayed the public’s trust. If I were president today, I would fire him.” Cox respectfully disagreed, stating that “it is precisely the wrong moment for a change in leadership that inevitably would disrupt the work of the SEC at just the wrong time.”

By October 2008, as the financial crisis deepened, the SEC was under such fire that Chairman Cox had to defend not only his own record but the SEC’s very existence. In response to critics who argued that the financial crisis showed that the SEC should be replaced in a new system that relied more on supervision than on regulation and enforcement, Cox testified before Congress that the financial crisis had, in fact, only highlighted the need for a strong SEC. “If the SEC did not exist, Congress would have to create it. The SEC’s mission is more important now than ever.”

A Failure of Epic Proportions

Less than two months later, the SEC’s reputation only worsened. That December, the name Bernard Madoff became known to the world outside of Wall Street when he confessed to building a massive Ponzi  scheme that had soaked investors for $50 billion. As Cox later admitted, “credible and specific allegations regarding Mr. Madoff’s financial wrongdoing, going back to at least 1999, were repeatedly brought to the attention of SEC staff, but were never recommended to the Commission for action.”

 The discovery that the SEC had failed to follow up on credible tips about Madoff created a panic at the agency not only about Madoff but also about every other case that had been closed without taking action in recent years. A growing chorus of critics took aim at the agency. At a January 2009 Congressional hearing on the Madoff affair, an enraged Rep. Gary Ackerman (N.Y.-D) shouted at senior SEC officials, “I want to know who is responsible for protecting the securities investor because I want to tell that person or those people whose job it is that they suck at it!” Another Congressman added at the same hearing, “We do not need the SEC at all!”

Enter Khuzami

Since that low point in early 2009, the Enforcement Division has been working to rebuild its program and its image. On January 27, 2009, Mary Schapiro took over as Chairman of the SEC, and she promptly named an aggressive former federal prosecutor, Robert Khuzami, as the new enforcement director. A new face not tied to the past criticisms of the SEC, Khuzami told his staff his first day on the job that the agency needed to use the Madoff episode “as a catalyst to undertake a rigorous self-assessment of how we do our job.”

Khuzami promptly launched the most significant restructuring in the agency’s history, introducing major changes such as specialized enforcement units; the elimination and redeployment of an entire layer of SEC management to create more investigators; a new Office of Market Intelligence to handle the tens of thousands of tips, complaints, and referrals the agency receives each year; a cooperation program that authorized the SEC’s use of non-prosecution agreements, deferred prosecutions agreements, and cooperation agreements to incentivize defendants to fully cooperate; and numerous other initiatives.

SEC Enforcement brought many important cases, including one against Goldman Sachs, and it pursued insider trading on Wall Street with renewed vigor under Khuzami’s leadership. As summed up by U.S. Judge Jed Rakoff, the most important contribution to the agency by Khuzami, who stepped down as director of the Enforcement Division in January 2013, was that he “restored a sense of pride and purpose to the SEC Enforcement Division, and we are all the better for it.”

The White Era

The most recent changing of the guard at the SEC occurred in February 2013 when President Obama selected Mary Jo White to succeed Mary Schapiro as chairman. White, a legendary former prosecutor, promptly brought on a former colleague of hers, Andrew Ceresney, to join George Canellos as co-directors of the Division of Enforcement. White wasted no time in setting out her own ambitious enforcement agenda and making several historic moves of her own.

White’s first major move in the enforcement area came in June 2013, when she decided to make a change to the SEC’s decades-old –and often criticized—settlement policy. White announced that going forward, the SEC would begin to require admissions of wrongdoing from defendants to settle enforcement actions in cases involving “egregious intentional misconduct” or misconduct that harmed large numbers of investors.

White also announced her highly ambitious goal for SEC enforcement under her leadership to be—or at least appear to be—“everywhere.” White said that she would instruct the Enforcement Division to attempt to enforce all infractions, no matter how small, referred to as the “broken windows” strategy.

To do so, White said, the SEC would expand its reach by incentivizing whistleblowers, cracking down on misconduct by gatekeepers, collaborating with other prosecutors and regulators, and maximizing its use of new technologies to help identify suspicious trading and financial fraud.

White also promised that under her leadership, the SEC would never shy away from taking defendants to trial. In November 2013, she explained that in her view, trials are critical because they foster the development of the law, and also “create public accountability for both defendants and the government through the public airing of charges and evidence.” To date, White’s SEC has made good on that promise and the agency has taken an extraordinary number of cases to trial—at least 17 by my count—in fiscal year 2014 alone.

The past six years have shown that the SEC will always be under the microscope and subject to second-guessing and criticism from the media, Congress, Wall Street, and others. As I write this final column, however, it seems to me that the SEC’s enforcement program has regained its footing and is back on the offensive. Here’s to slightly less “interesting” times ahead for the SEC in 2015 and beyond!