OPINION: Change to SEC Enforcement Director’s authority could affect pace, scope of investigations

Independent power to order investigations stripped by SEC.

The SEC updated rules for its enforcement actions in an interesting and not well-publicized way on Tuesday.

According to a rather pithy document posted on the SEC’s website, the Director of Enforcement will no longer be able to issue formal orders of investigation and must seek Commission approval before pursuing the investigation.

The move is already listed as final and will become effective following its publication in the Federal Register; the agency stated it felt it had good reason to establish “an effective date less than 30 days after publication.”

Kind of expected

Reuters reported last month that the SEC was considering easing up a bit on enforcement actions and that the Commission will have the final say on pursuing allegations leveled by the staff of the SEC enforcement division. The report claims that lawyers will need permission from the Commission before they “formerly launch probes,” a move that will “slow down investigations.”

The current SEC has a structure of three Republican and two Democratic commissioners, given the Republican administration in office, and an easing up on enforcement was expected, with the agency moving toward a more business and innovation-friendly regulatory body.

But also kind of concerning

In August 2009, the SEC embarked on a trial period in which authority for bringing enforcement actions was delegated to the Director of Enforcement and his or her staff.

The new Final Rule states the enforcement staff has been authorized to issue subpoenas in connection with investigations under the federal securities laws, but that due to the SEC’s “experience with its nonpublic investigations” this new rule “is intended to increase effectiveness by more closely aligning the SEC’s use of its investigative resources with SEC priorities.”

Why should we care?

The change could affect the pace and scope of SEC investigations, and possibly lead to a parade of investigative activity and cases that all focus on the higher-priority issues and are of specific interest to the SEC’s current senior leadership. For the industry, this means that investigations may now be far more targeted to the Trump administration’s and SEC’s broader enforcement agenda and less broadly shaped than those previously brought by career SEC staff who likely had a less narrowly focused agenda.

To be sure, this does not mean fraud cases are going away, or that bad actors from certain companies are going to have permission to dupe investors and break securities laws.

But it does take away from career professionals (and an office groomed in this work) a critical tool in their arsenal and throws it into seemingly more partisan hands.

Watch this space.