FROM: U.S. SECURITIES AND EXCHANGE COMMISSION
Introductory Remarks at The Evolving Role of Compliance in the Securities Industry Presentation
Commissioner Daniel M. Gallagher
Washington, D.C.
May 12, 2014
Thank you, David [Blass]. I’m very pleased to be here this morning to kick off today’s discussion of a timely and critical topic: the evolving role of compliance professionals. I’d be remiss if I didn’t begin by expressing my thanks to the team responsible for today’s event: Mike Stone, who suggested the event in the first place, our panelists Howard Plotkin and Jerry Baker, and David Blass [and Steve Benham] from the Division of Trading and Markets, who worked with our panelists to put together today’s event. It’s very heartening to me that there are people like Mike, Howard, and Jerry who are willing to so generously volunteer their time to help the Commission better understand the myriad and complicated challenges facing today’s compliance professionals. I often speak of the scoundrels and miscreants in the securities industry; it’s a genuine pleasure to be here today with folks from the other end of the spectrum.
In recent years, a variety of factors have combined to significantly expand the scope and complexity of the issues facing compliance officers at securities firms. Today’s compliance personnel have to address an ever-broadening array of complex and novel financial products, new trading and communication technologies, and multiple, diverse market venues. They must do so in the face of an unprecedented torrent of new laws and regulations promulgated in response to the financial crisis, most particularly the Compliance Officer and Securities Attorney Full Employment in Perpetuity Act of 2010, or as it’s more commonly known, Dodd-Frank.
And although securities firms have been generally increasing the amount of resources they devote to compliance matters, compliance budgets have increased in a linear manner while the demands faced by compliance officers have increased exponentially. A member of the House Financial Services Committee, citing a study issued by the Committee,[1] stated, “It will take over 24 million man hours to comply with Dodd-Frank rules per year. It took only 20 million to build the Panama Canal.”[2] On the plus side, at least Dodd-Frank has caused fewer deaths by malaria or yellow fever.
Our system of oversight for regulated entities such as broker-dealers and investment advisers is predicated upon the active participation of compliance personnel. It is a system of shared responsibility, in which the Commission oversees the firms that, in turn, oversee their associated persons, with SROs providing an additional level of oversight for broker-dealers. Broker-dealer and investment adviser firms in essence serve as the first line of defense in this system, and the system does not work if firm legal and compliance officers are too timid to jump into the difficult regulatory issues firms face on a regular basis.
All the more important, then, that the Commission does everything in its power to encourage a robust, effective compliance function at the entities we regulate. This includes, crucially, providing additional certainty on the topic of “failure to supervise” liability. The Exchange Act vests the Commission with the authority to impose sanctions on a person associated with a broker-dealer if that person “has failed reasonably to supervise, with a view to preventing violations of the provisions of [the securities] statutes, rules, and regulations, another person who commits such a violation, if such other person is subject to his supervision.”[3] Nearly identical language in the Investment Advisers Act grants the Commission the same authority with respect to associated persons of investment advisers.[4]
The Commission’s ability to impose sanctions for failures to supervise is a valuable part of our regulatory toolkit, encouraging a broker-dealer or investment adviser’s managers and executives to proactively monitor subordinate employees’ compliance with laws and regulations. We must make sure, however, that our rules establishing failure to supervise liability do not act as a deterrent to in-house legal and compliance officers, discouraging them from departing from their clearly delineated roles.
After all, we don’t want compliance officers or in-house attorneys spending their days drafting policies and sending out memoranda while avoiding interaction with the individuals governed by those policies or the recipients of those memos out of fear of being deemed a supervisor and subjecting themselves to liability. Indeed, we want to encourage such personnel to bring their expertise to bear in addressing important, real-world compliance issues and in providing real-time advice for concrete problems the firms and their employees face.
To do so, we need to provide guidance that is as clear as possible on our position on supervisory liability for legal and compliance personnel. In this vein, I was especially pleased when last September, the Division of Trading and Markets, in an effort led by David Blass, issued a set of FAQs on the topic of failure to supervise liability.[5] The feedback on these FAQs has been very positive, and I hope and expect that we will continue to address new or unsettled issues in this manner.
Events like today's training complement outward-facing initiatives such as the FAQs by providing our own staff with informed and current guidance on compliance issues, and I'm glad to be able to add my enthusiastic support. Once again, thank you to our panelists, and thanks as well to the SEC staff here today for taking advantage of this wonderful opportunity to learn from our distinguished guests. I wish you all a productive and educational training.
[1] Dodd-Frank Burden Tracker (spreadsheet), House of Representatives Committee on Financial Services, available at http://financialservices.house.gov/uploadedfiles/dodd-frank_pra_spreadsheet_7-9-2012.pdf.
[2] Rep. Randy Randy Neugebauer, quoted at Dodd-Frank Burden Tracker, House of Representatives Committee on Financial Services, available at http://financialservices.house.gov/burdentracker/default.aspx.
[3] 15 U.S.C. 78o(b)(4)(E)
[4] 15 U.S.C. 80b-3(e)(6).
[5] Frequently Asked Questions about Liability of Compliance and Legal Personnel at Broker-Dealers under Sections 15(b)(4) and 15(b)(6) of the Exchange Act, U.S. Securities and Exchange Commission, Division of Trading and Markets, available at http://www.sec.gov/divisions/marketreg/faq-cco-supervision-093013.htm.
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