The SEC's Dollar-Short-and-Day-Late Reforms

January 13, 2010

Likely feeling the sting of criticism about its lackluster record of timely detecting fraud on Wall Street, the Securities and Exchange Commission (SEC) announced a series of measures that it hopes will strengthen its enforcement program by encouraging greater cooperation from individuals and companies in the agency's investigations and enforcement actions.  See, SEC Announces Initiative to Encourage Individuals and Companies to Cooperate and Assist in Investigations (January 13, 2010). 

First, the SEC's Division of Enforcement amended its enforcement manual with a new section: Fostering Cooperation, which largely incorporates policies and procedures long used by the United States Department of Justice in its criminal investigations and prosecutions: 

Cooperation Agreements - Formal written agreements in which the Enforcement Division agrees to recommend to the Commission that a cooperator receive credit for cooperating in investigations or related enforcement actions if the cooperator provides substantial assistance such as full and truthful information and testimony.

Deferred Prosecution Agreements - Formal written agreements in which the Commission agrees to forego an enforcement action against a cooperator if the individual or company agrees, among other things, to cooperate fully and truthfully and to comply with express prohibitions and undertakings during a period of deferred prosecution.

Non-prosecution Agreements - Formal written agreements, entered into under limited and appropriate circumstances, in which the Commission agrees not to pursue an enforcement action against a cooperator if the individual or company agrees, among other things, to cooperate fully and truthfully and comply with express undertakings.

Second, the SEC streamlined the process for submitting witness immunity requests to the Justice Department.

Third, the Commission has set out a protocol of four specific considerations by which it will credit cooperation by individuals.  It is hoped that such clarity will provide guidance and serve as an incentive for individuals to report violations and to cooperate fully and promptly in enforcement cases: 

    1. The assistance provided by the cooperating individual.
    2. The importance of the underlying matter in which the individual cooperated.
    3. The societal interest in ensuring the individual is held accountable for his or her misconduct.
    4. The appropriateness of cooperation credit based upon the risk profile of the cooperating individual.

Not merely satisfied with taking the above steps in atonement for its outdated policies and procedures -- guidelines that frequently confounded its adversaries and just as often frustrated its own staff -- the SEC tries to spin its belated reforms as something new, wonderful, and dynamic.  Consider this lovely self-congratulatory phrase in the SEC press release: 

The developments announced today are the latest in a series of initiatives that are part of the most significant reorganization of the Enforcement Division in more than 30 years. These reforms include vastly expanding staff training programs, hiring staff with new skill sets, streamlining management, adding more experienced investigators to the front lines, revising internal enforcement procedures, restructuring processes to ensure better sharing of information, leveraging the knowledge of third parties, and revamping the way tips are handled.

As a three decade regulatory veteran of Wall Street, I hardly view the announced changes as brilliant, imaginative reforms -- nor have I seen anything during the Schapiro administration that constitutes the "most significant reorganization" of the SEC in more than 30 years. In lieu of a dramatic overhaul, I merely see a belated effort to catch up with practices that have long been in place at other enforcement organizations.  I'm not sure that "a dollar short and a day late" is something to trumpet.

Nonetheless, let me give credit where credit is due and applaud SEC Director of Enforcement Robert Khuzami, who seems to have brought an invigorated sense of change to his moribund organization. After an 11-year stint at the United States Attorney's Office for the Southern District of New York (in addition to service as General Counsel for the Americas at Deutsche Bank AG), Khuzami may well have been shocked by the SEC's ineffective practices and policies.  While Khuzami too has fallen for some of the misplaced rah-rah mentality at the SEC - "This is a potential game-changer for the Division of Enforcement," he is quoted in the press release as saying - there is no denying that many of the recent SEC Enforcement reforms have his fingerprints on them. 


Of course, one must wonder whether Khuzami's star is shining so bright that it may occlude SEC Chair Schapiro's?  I suspect that SEC Enforcement Director Khuzami may be far more effective an agent of reform.