Each year, anyone who is anyone at the Securities and Exchange Commission, reflects upon the year that was—and the year ahead—at the Practising Law Institute’s SEC Speaks Conference. The event was held over the weekend in Washington D.C.
In her keynote address, SEC Chair Mary Jo White said she is looking to 2016 as the year her agency may finally complete rulemaking required under the Dodd-Frank Act. Of “particular focus and priority” will be remaining security-based swap rules. On tap are finalizing “substantive requirements for security-based swap dealers, notably rules governing business conduct and requirements for capital, margin, and asset segregation.”
Another of White’s stated priorities is addressing the “increasingly complex portfolios and operations” of mutual funds and exchange-traded funds. In May, the SEC proposed enhanced reporting for investment advisers and mutual funds. For the first time, funds would be required to report basic risk metrics, and new information would be required about, among other things, their use of derivatives, securities lending activities, and liquidity of their holdings. In September 2015, the Commission also proposed reforms designed to promote more effective liquidity risk management across open-end funds. In December, the SEC approved a proposal requiring that funds monitor and manage derivatives-related risks. “ Finalizing these rules, as well as advancing proposals for transition planning and stress testing, are among our 2016 priorities for the asset management industry,” White said.
In her keynote, Commissioner Kara Stein called for more disclosures and greater transparency in not just ETFs, “but other exchange-traded products that hold commodities, currencies or derivatives.” The Commission should “look at how these products are being marketed and by whom [and] assess whether certain products are even suitable for buy-and-hold investors.”
“These products are not traditional equity securities,” Stein said. “They do not always behave in the same manner as equity securities. The attempt to fit such non-equity products into the rules designed for traditional equity securities has left potential gaps in investor protection and also raised questions about market integrity.”
Stein also addressed the “importance of a board’s accountability to its shareholders.”
“Our rules have created an anomalous situation between shareholders who physically attend a meeting and those who do not,” she said. “Shareholders in physical attendance can receive a universal ballot that allows them to pick and choose from all the candidates nominated for the board, regardless of whether the nominees were put forward by management or a shareholder. In contrast, shareholders voting by proxy, who do not physically attend the meeting, generally are limited to choosing from among either the company’s nominees or the shareholder-proponent’s nominees.”
The issue is the result of the “bona fide nominee rule,” which allows only nominees who have consented to be named in the proxy statement to be included on the proxy card. “I do not think we should be treating investors differently and limiting their voting rights based solely upon whether they are able to attend a meeting in person or vote by proxy,” Stein said. “It is time to amend our proxy rules and to facilitate more robust shareholder enfranchisement.”