The message from Securities and Exchange Commission Chairman Mary Jo White to compliance officers: keep calm and carry on.
Speaking to an audience of nearly 1,000 compliance officers from financial services firms and broker-dealers on Tuesday at a “Compliance Outreach Program” sponsored by the Commission, White weighed in on the consternation many of those professionals have expressed about personal liability and potentially being targeted for enforcement actions.
“To be clear, it is not our intention to use our enforcement program to target compliance professionals,” White said. “We have tremendous respect for the work that you do. You have a tough job in a complex industry where the stakes are extremely high. That being said, we must, of course, take enforcement action against compliance professionals if we see significant misconduct or failures by them.”
“Being a CCO obviously does not provide immunity from liability, but neither should our enforcement actions be seen by conscientious and diligent compliance professionals as a threat,” White added. “We do not bring cases based on second guessing compliance officers’ good faith judgments, but rather when their actions or inactions cross a clear line that deserve sanction.”
White is the latest SEC official to address the controversy of CCOs landing on their enforcement radar. On June 18, Commissioner Daniel Gallagher issued a public statement to elaborate on his dissent in enforcement actions against Blackrock Advisors and SFX Financial Advisory Management Enterprise and compliance personnel at both firms. Among his concerns are that the SEC is overreaching with its application of Rule 206(4)-7 of the Investment Advisers Act, which requires registered investment advisers “to adopt and implement written policies and procedures reasonably designed to prevent violation of the federal securities laws, review those policies and procedures annually…and designate a chief compliance officer to be responsible for administering the policies and procedures.”
“Actions like these are undoubtedly sending a troubling message that CCOs should not take ownership of their firm’s compliance policies and procedures, lest they be held accountable for conduct that, under Rule 206(4)-7, is the responsibility of the adviser itself,” Gallagher wrote. “Or worse, that CCOs should opt for less comprehensive policies and procedures with fewer specified compliance duties and responsibilities to avoid liability when the government plays Monday morning quarterback.”
Later that month, Commissioner Lois Aguilar countered “the impression that the SEC is taking too harsh of an enforcement stance against CCOs.” The Commission, he wrote, “does not bring enforcement actions against CCOs who take their jobs seriously and do their jobs competently, diligently, and in good faith to protect investors.”
Over the years the Commission has brought relatively few cases targeting CCOs solely for their compliance-related activities, he added, promising that “CCOs not under siege.”