Remarks to the SEC Investor Advisory Committee

Jay Clayton is Chairman of the U.S. Securities and Exchange Commission. This post is based on Chairman Clayton’s recent remarks to the SEC Investor Advisory Committee, available here. The views expressed in this post are those of Mr. Clayton and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

I’d like to start by extending a special welcome to the three individuals who have generously agreed to serve as new Committee members. Paul Maloney, Lydia Mashburn, and J.W. Verret, thank you for joining us. I look forward to your contributions to the important work of this Committee.

I would also like to thank our host, the Georgia State University College of Law and Dean Wendy Hensel. The SEC has an outstanding Regional Office in Atlanta, and I think I speak for my colleagues when I say that we have all felt very welcome in Atlanta. Atlanta is a perfect place for the first IAC meeting outside of Washington. It is important to me that we—all of us at the SEC—spend time with Main Street investors across the country. These are the women and men who depend on our nation’s capital markets to provide quality, long-term investment opportunities that will enhance their lives and their futures.

As I hope you know, ensuring that Main Street investors have quality investment opportunities, and that they are well informed and well protected, are my focus and the focus of the staff at the SEC. In fact, I often say, the interests of our long term retail investors is the touchstone by which we should view each and every action we take. It is certainly at in the heart of the SEC staff and is central to the topics that we are discussing today.

Over the past year, the Commission has taken important actions on several fronts to improve our markets for Main Street investors:

The Retail Strategy Task Force

The Retail Strategy Task Force was established last year within the Division of Enforcement. This group draws on the wealth of experience and deep dedication to Main Street investors within the Enforcement Division to develop proactive, targeted initiatives to identify and deter misconduct affecting our retail investors. The Enforcement Division’s efforts in this area in the past have targeted microcap “pump-and-dump” frauds, Ponzi schemes, and the sales of unsuitable structured products to investors, among many others.

The Cyber Unit; Combating ICO Fraud

Our Division of Enforcement has also formed a new, specialized Cyber Unit staffed by women and men focused on emerging cyber-related threats and misconduct. Among the many areas of focus are market manipulation schemes involving false information spread through electronic and social media; misconduct perpetrated using the dark web; and intrusions into online retail brokerage accounts. The Unit also focuses on violations involving distributed ledger technology and initial coin offerings (or “ICOs”), ensuring that we provide the oversight of this emerging market that investors have come to expect from the SEC.

Our Division of Corporation Finance also continues to be on the front lines in the ICO space, and has recently added a Senior Advisor for Digital Assets and Innovation to coordinate efforts across all SEC divisions and offices.

Finally, you may also have seen the Commission’s recent investor education foray into the ICO space with HoweyCoins, where we quickly built out our own fraudulent initial coin offering website. Of course, if the offer on sounds too good to be true, that’s because it is.

Our Office of Investor Education and Advocacy created the site to demonstrate some of the hallmarks of fraud in the ICO market. It is very important to understand that we were able to build the entire website in-house very quickly with an out of pocket cost of less than $20. While fraud is very costly, it can be cheap to engineer.

Share Class Initiative

Earlier this year, the Division of Enforcement launched the Share Class Selection Disclosure Initiative. Through our inspection and enforcement efforts, we identified a problem: some firms were investing their clients’ money in mutual fund share classes that charged higher fees when lower-cost share classes of the same funds were available, without disclosing this conflict of interest. After we filed numerous enforcement actions addressing this misconduct on a firm-by-firm basis, we launched a wide-ranging self-reporting initiative that seeks to protect retail investors and return money to them as promptly and effectively as possible. While it is still the early days of this initiative, the problem could be widespread. In addition to getting money back to retail investors, one of the goals of this initiative is to deter advisers from continuing this practice.

Fixed Income Market Structure and Mark-Up/Mark-Down Disclosure

With regard to market structure, the Commission has formed the Fixed Income Market Structure Advisory Committee, or FIMSAC. It is difficult to overstate the significance of the fixed income markets to the American economy and our investing public. Individual investors are key participants in the corporate and municipal debt markets, both directly and indirectly through pension funds and other pooled vehicles. These markets are also critical to American companies and our national infrastructure. Companies across the country—both large and small—issue corporate bonds to borrow money to help grow their businesses, fund their operations and create jobs. And state and local governments issue bonds to finance a wide range of public projects and provide cash flows for governmental needs, among other things. The Committee is off to a great start, and I look forward to their continued work and advice.

Speaking of the fixed income markets, I am also pleased to report that last month, important new FINRA and MSRB requirements concerning the disclosure of corporate and municipal bond mark-ups and mark-downs went into effect. I have reviewed an array of confirmations and am pleased that investors now have substantially greater transparency into the costs of participating in our markets as well as the financial incentives of their investment professionals. I also commend Commissioners Piwowar and Stein for their continuous efforts—which began long before I arrived at the Commission—in this important area.

Modernizing Delivery Options for Fund Information

In our rulemaking capacity, the Commission has moved forward on a new policy to help to improve the ability of investors to receive timely, accurate and easily digestible information.

Last week we adopted new rule 30e-3, significantly modernizing delivery options for fund information while preserving the right of fund investors to receive information in paper form should they choose to do so. In particular, the new rule requires that investors receive a notice with a prominent legend about how to obtain a paper copy of shareholder reports. The new rule also includes several modifications from the proposal, including an extended transition period and several other important investor protections. Rule 30e-3 has been an area of focus for this committee, and I’d like to thank the Purchaser Subcommittee for its thoughtful study and recommendations.

Standards of Conduct for Investment Professionals

Today, the Committee will discuss two specific parts of the Commission’s important work to increase transparency and eliminate long-standing confusion in the market for investment advice—the proposed Regulation Best Interest and Proposed Customer Relationship Summary or CRS.

Our markets have thrived and provided retail investors with access to valuable advice for decades with a regulatory structure that accommodates two professional-retail investor relationship models—the broker-dealer relationship model and the investment adviser relationship model. There is, however, room for improvement. I will highlight two key areas.

First, the broker-dealer standards of conduct for both care and loyalty should be set to a level investors would expect. This is why we proposed to incorporate the essential element from fiduciary standards—that you cannot put your interest ahead of your client’s—into the standard applicable to broker-dealers. We are also proposing to codify the broker-dealer’s obligation of care, as well as to add policy and procedure requirements to ensure that broker-dealers act in accordance with our regulations and that we and other regulators can efficiently inspect for compliance.

Second, investors should be able to understand the terms of the relationship model and the incentives of their investment professional, as well as any disciplinary history. That is why we have proposed a standardized, concise disclosure form—Form CRS—applicable to both broker-dealers and investment advisers.

We encourage comment from all market participants and, in particular, retail investors. Yesterday, we had the pleasure of conducting a roundtable to talk about some of these issues with everyday investors from the Atlanta community, along with Dalia Blass, Director of the Division of Investment Management, and Lori Schock, our Director of the Office of Investor Education and Advocacy. Earlier this month, we did the same thing with a group of retail investors in Houston as part of a series of planned roundtables around the country, which are designed to ensure that we learn how our proposals would affect Main Street investors. The next two roundtables are planned for Miami and Denver later this summer.

The SALI Search Tool

Earlier this year, we announced the launch of the SEC Action Lookup for Individuals—or SALI—a new online search feature to further assist the public in making informed investment decisions and avoiding financial fraud.

It has been demonstrated time and again that fraud is especially prevalent among those who hold themselves out as investment experts but are not registered with the SEC or the states. We encourage retail investors to work with a registered investment professional (be it a broker-dealer or investment adviser). The risk of fraud and misconduct for retail investors when they receive advice from a person who is not registered goes up substantially.

SALI enables anyone to find out if the individual he or she is dealing with on an investment has been sanctioned as a result of SEC enforcement actions, whether or not the individual is registered. It is part of our ongoing efforts to help investors research financial professionals who they are entrusting with their savings.

SALI continues to be updated on an ongoing basis, making it an ever better resource for everyday investors.

Equity Market Structure Initiatives

I believe that just as retail investors need up-to-date, accurate information to make decisions about their money, the Commission also needs to ensure we collect data on the issues sparking the most debate in our regulatory space in order to best serve those investors.

To that end, earlier this year, the Commission proposed a transaction fee pilot in National Market System (NMS) stocks, which would provide the Commission with data to help us analyze the effects of exchange fees and rebates on order routing behavior, execution quality, and our market structure generally. In my view, the proposed pilot, if adopted, would lead to a more thorough understanding of these issues, which would help the Commission make more informed and effective policy decisions in the future, all to the benefit of retail investors.

That is just a brief sampling of the incredible work the Commission is doing to ensure our markets are fair, safe and open to Main Street investors, whether they are just starting to build their portfolios or whether they have been saving for decades. I am proud to work with a team that tries every day to make our markets better. You, the members of the IAC are part of that team.

Thank you all for being here today, and I look forward to a productive meeting.

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