Keynote Address, SEC Regulation Outside the United States "The SEC at Home and Abroad"

Andrew J. Donohue, Chief of Staff

InvestoRegulation Conference, London

June 28, 2016

Introduction[1]

Thank you, Mark, for that kind introduction. Let me begin by providing the standard SEC disclaimer that the views I express today are my own and do not necessarily reflect the views of the Commission, the Commissioners or my colleagues on the Commission staff.[2]

I am honored to be here and to have the opportunity to give the keynote address at this important event. I see that I am joined by many of my exceptional SEC colleagues, including senior representatives from our largest divisions and offices — Scott Friestad from the Enforcement Division, Melissa Gainor from Investment Management, Gary Goldsholle from Trading and Markets, Barbara Jacobs from Corporation Finance and Jane Jarcho from our Office of Compliance Inspections and Examinations. That is an impressive group and they will no doubt provide very useful insight into the great work being done in their respective divisions and offices.

So how should I spend my time with you today, knowing that the Commission is so ably represented? I thought it would be helpful to tackle the Commission's work from a different, broader perspective.

Over the last forty years, I have had a variety of experiences throughout the industry, many of which have required me to have responsibility for individuals and operations outside the U.S. I have had, among others, legal and compliance responsibilities for broker-dealers, investment advisers, investment companies, and private funds. I also have had the great privilege of doing two tours at the SEC — first as Director of the Investment Management Division from May 2006 until November 2010, and now, as Chief of Staff since last June.

Throughout my career, whether at the SEC or in the private sector, I have witnessed the expanding intersection between U.S. securities regulation and the global securities community. This can be seen in the number of SEC-regulated parties that reside abroad, the amount of cross border holdings, and the ever-growing level of cooperation among international regulators.

Given this growing connection, today I would like to address three developments. First, I will provide a clearer picture of the SEC's global reach within the securities industry. Second, I will discuss the importance of international cooperation on the major issues we face in today's markets. Finally, I will highlight the great work of the Commission and its staff during Chair White's tenure.

The Globalization of the Securities Markets

Our mandate at the SEC is quite broad. The Commission, for example, is charged with overseeing approximately 27,000 market participants, including nearly 12,000 investment advisers, almost 11,000 mutual funds and exchange-traded funds, over 4,000 broker-dealers, and over 400 transfer agents. In addition, the SEC is responsible for selectively reviewing the disclosures and financial statements of over 9,000 reporting companies.

The globalization of our securities markets touches on most facets of this work — from investment advisers and broker dealers, to cross-border holdings and foreign issuers, as well as our enforcement and examination efforts.

In the investment adviser space, for example, the number of investment advisers registered with the Commission that have their principal office and place of business outside the U.S. has increased nearly 150% over the last 13 years, while the amount of corresponding regulatory assets under management of those foreign advisers has more than quadrupled during that time to $8.7 trillion.[3] This growth necessitates broad international cooperation especially as U.S. domestic-registered investment advisers are also registered with over 50 different foreign financial regulatory authorities.[4]

The amount of cross-border holdings also has grown exponentially. In 1994, according to U.S. Treasury data, U.S. investors held $870 billion in foreign securities. By the end of 2014, the latest data available, that number had risen to nearly $9.6 trillion.[5] During roughly that same period, foreign holdings of U.S. securities rose from $1.2 trillion to over $17.1 trillion.[6] In addition, there were over 900 foreign private issuers registered with the SEC at the end of 2015.[7]

Although less dramatic compared to the investment adviser and investor communities, the Commission's global reach can also be seen among broker-dealers registered with the Commission as 60 are headquartered abroad.[8]

The Importance of International Engagement

As these numbers make clear, the SEC is tasked with carrying out its mandates in an increasingly global financial regulatory system. The SEC is not alone in this challenge. As one of the hundreds of financial regulators around the world, the Commission seeks to find common ground with our international counterparts. The SEC works hard to do this, both bilaterally and through our work in various international groups, such as the International Organization of Securities Commissions (IOSCO) and the Financial Stability Board (FSB). In all these efforts, we seek to enhance investor protection, facilitate capital formation, and encourage the development of fair, orderly, and efficient markets.

The SEC's international engagement is not new. Our Office of International Affairs (OIA) was founded in 1989 in recognition of the need to navigate international waters. Today, virtually all of the SEC's offices and divisions with regulatory, supervisory and enforcement responsibilities are working on rule-makings, inspections and investigations with significant international components.

What is relatively new are the post-crisis efforts to address systemic risks on an international stage. In 2008 and 2009, the G20 called for a stronger institutional framework and a larger membership for an entity then known as the Financial Stability Forum.[9] The G-20 saw a need for a strong international mechanism to address vulnerabilities and promote financial stability and, in April 2009, the Financial Stability Board (FSB) was formed.[10]

The SEC is an active member of the FSB, with SEC staff participating in the relevant committees, work streams, and governing bodies, and — as the Commission is one of the few market regulators on the FSB's primary governing body — can provide real world expertise and perspective about how securities markets operate. The SEC also continues to be an active participant in IOSCO,[11] the leading international standard-setting body for securities regulators.

SEC staff has been a strong voice in both organizations, for example, in the asset management dialogue, sharing its experienced views on where and how best to identify, evaluate and address issues in this area. As many of you know, the FSB and IOSCO have been engaged in constructive efforts to address potential systemic risks arising from asset management activities. Similar to what the SEC is doing domestically, which I will discuss shortly, international efforts are focusing on potential risks posed by funds' offering daily redeemability but investing in less liquid assets, risks from leverage within funds, operational risk, and risk from securities lending activities.

The benefits from international collaboration are broad and considerable. Effective cooperation among regulators, for example, can foster the development of stronger standards and greater market efficiencies. In 2012, IOSCO and the Committee on Payments and Market Infrastructures (CPMI) jointly published the Principles for Financial Market Infrastructures, or PFMI, intended "to enhance safety and efficiency in payment, clearing, settlement, and recording arrangements, and more broadly, to limit systemic risk and foster transparency and financial stability."[12] SEC staff worked alongside U.S. regulators and our foreign counterparts on these robust standards. Building on the framework set forth in the PFMI, in 2015 CPMI, IOSCO, the Basel Committee on Banking Supervision (BCBS), and the FSB launched an ambitious joint workplan aimed at enhancing the resilience, recovery planning, and resolvability of central counterparties (CCPs) that are systemically important in multiple jurisdictions. The development of updated, targeted guidance in these critical areas is currently underway, and expected sometime next year.[13]

To help facilitate and strengthen regulatory reform, the SEC aims to be a thought leader in international discussions because of our extensive regulatory experience. For example, after the 2008 financial crisis, both the SEC and many foreign financial regulators focused on money market funds. The SEC, which oversees money market funds with over $3 trillion of assets,[14] served as a global leader by instituting regulatory reforms in both 2010[15] and 2014[16] that enhanced the resiliency of such funds and provided investors with important protections. Many of the reforms that the SEC has incorporated into its money market fund regulation are now being considered in other jurisdictions, particularly in Europe where the European Union is evaluating various proposals.[17]

International engagement also plays an important role in a regulator's ability to detect and combat fraud. Collaboration among countries and agencies in the enforcement and supervisory area is critical because, as the global markets become more interconnected and complex, no one country or agency can effectively fight fraud alone. Global threats require global cooperation.

Through our international cooperation, we have been able to leverage the information and resources of our counterparts to strengthen our own enforcement efforts. Over the past few years, we have worked with our international partners to establish meaningful channels for sharing information. Through the IOSCO Multilateral Memorandum of Understanding (MMOU),[18] which now has over 100 signatories, we obtain crucial documents and testimony from individuals and entities overseas. We also have 20 bilateral MOUs with our partners abroad that allow us to further bridge international borders. It should thus come as no surprise that more and more of our investigations each year have an international component.

Our efforts to foster greater cooperation continue to produce tangible results. For example, in the VimpelCom case we filed in February,[19] the SEC worked seamlessly with Dutch authorities and reached a global resolution that resulted in monetary sanctions of more than $795 million — one of the largest in the history of the FCPA — divided between the SEC, the U.S. Department of Justice, and Dutch regulators. The international cooperation in this case was exceptional — and truly global in nature — as we received valuable assistance from fifteen separate foreign securities or law enforcement agencies.

The newswire case, which the Commission filed in August of last year,[20] also benefited from significant international cooperation. There, the Commission charged over thirty defendants — located in the U.S. and abroad — including two men who allegedly hacked into U.S. newswire services and sold material nonpublic information about corporate earnings announcements to traders in Russia, Ukraine, Malta, Cyprus, France, and the U.S. The international scheme was unprecedented in terms of the scope of the alleged hacking, the number of traders, the number of securities traded and profits generated. Through the assistance of our foreign partners, we were able to quickly freeze more than $80 million of trading proceeds. To date, the Commission has obtained settlements from 11 defendants, who have agreed to pay more than $50 million.[21]

Significantly, this case was developed through the use of innovative analytical tools at the SEC designed to find suspicious trading patterns and expose misconduct. Our international counterparts, including the UK FCA and Danish FSA, helped with identifying suspicious trading, obtaining beneficial ownership information, and ultimately in securing the international asset freezes.

Opportunities for Enhanced International Engagement

Although the progress in, and benefits from, international engagement are significant, more still needs to be done. Our increasingly complex and integrated markets demand no less. This need is particularly prevalent with respect to regulatory risks that transcend borders. Cybersecurity, for example, is a growing, global threat that requires our immediate and collective attention.

At the Commission, we have taken a holistic approach to cyber threats by addressing it on multiple fronts — from guidance and regulation to examinations and enforcement. As Chair White has noted on many occasions,[22] cybersecurity is one of the greatest risks facing the financial services industry because the consequences here can have far-reaching impacts.

Our own regulatory efforts are focused primarily on encouraging our registered entities to have policies and procedures that address the risks posed to their systems and data by cyberattacks. In the asset management area, staff from the Division of Investment Management issued guidance discussing a number of measures that funds and advisers should consider.[23] We also are keeping close watch on how public companies are addressing the issue in accordance with the 2011 guidance issued by the Division of Corporation Finance.[24]

On the exam front, our staff is building on its successful Cybersecurity Examination Initiative from 2015, and continues to focus on cybersecurity compliance and controls. [25] This year's efforts will involve more testing to assess firms' preparedness and implementation of firms' procedures and controls. Last November also marked the compliance date for most entities covered by Regulation SCI, which requires key market participants to have comprehensive policies and procedures regarding their technological systems to make them more resilient.[26]

In terms of enforcement, last September the Commission settled charges against an investment adviser for failing to establish the required cybersecurity policies and procedures in advance of a breach that compromised the personally identifiable information of approximately 100,000 individuals, including thousands of the firm's clients.[27] The staff investigation identified indications that the firm may have violated this "safeguards rule" during a nearly four-year period when it failed to adopt any written policies and procedures to ensure the security and confidentiality of the information and protect it from unauthorized access.

Although the Commission continues to make great strides, cybersecurity will be a significant risk for market participants and regulators alike over the foreseeable future. As a result, there is a growing need and urgency for all — in both the public and private sectors — to enhance communication, information sharing and cooperation globally. Cyber threats are not constrained by space or jurisdiction. Our efforts to prevent, detect and combat such risks shouldn't be either.

The Commission's Achievements Over the Last Three Years[28]

Of course, our ability to effectively address issues abroad is not unrelated to our ability to be productive at home. And in that regard, the Commission has been firing on all cylinders. So I would like to spend my remaining time highlighting the exceptional work and commitment of our superb staff.

Over the last few years, the Commission has pursued an extensive program of rulemaking and other policy efforts designed to protect investors, strengthen markets, and facilitate capital formation. Since April 2013, the Commission has proposed or adopted over 40 significant packages of rules, including critical reforms that address, among other areas, money market funds,[29] credit rating agencies,[30] asset-backed securities,[31] proprietary trading,[32] security-based swaps,[33] and municipal advisors.[34] The Commission also has made major strides in improving U.S. market structure, while completing important rules to promote capital formation. At the same time, our enforcement and examination programs have been operating at a record-setting pace, finding ways to better harness technology to detect fraud and hold wrongdoers accountable.

Enhancing Asset Management Regulation

Over the last several years, the Commission has made significant progress in the realm of asset management regulation. While our initiatives have targeted discrete areas of the asset management industry, taken together, they have created a broad foundation of regulation in this area.

In 2010, for example, the Commission adopted the first set of pivotal reforms that reduced money market funds' credit risk exposure, required liquidity buffers, and increased disclosure to the Commission and to investors, among other things.[35] Four years later, the Commission adopted structural and operational reforms to address risks of investor runs in money market funds, while preserving the benefits of the funds and supporting capital formation.[36] Among other things, those reforms require a floating net asset value (NAV) for institutional prime money market funds, and provide non-government money market fund boards new tools — liquidity fees and redemption gates — to address runs. Our strong yet tailored reforms are enhancing the resiliency of money market funds while providing investors with important protections that could be critical during periods of market stress.

The Commission has also been busy with another important initiative for the asset management industry that Chair White announced in December 2014.[37] This set of reforms — which consist of five core recommendations regarding liquidity risk management, the use of derivatives, data gathering, transition planning, and stress testing — are intended to lay the foundation for a modernized regulatory regime focused on regulating the unique and complex risks presented by certain asset management industry practices, particularly in times of market stress.

Since that announcement, the Commission has proposed rules relating to strengthening funds' liquidity risk management,[38] limiting the amount of leverage that funds are permitted to obtain through the use of derivatives,[39] and modernizing funds' disclosure and reporting of information.[40] Each of these reforms is significant as I believe they would position the SEC to better monitor and protect America's investors and the integrity of the industry.

One of the Commission's key proposals focuses on funds' use of derivatives, including measures to limit the amount of leverage funds can obtain through these instruments. The Commission also proposed modernizing the reporting and disclosure of information provided by registered funds in order to enhance the quality of — and access to — key data. Our third initiative — the proposal on liquidity risk management — would require open-end funds, such as mutual funds and ETFs, to adopt liquidity risk management programs. In addition, these funds would classify the liquidity of fund portfolio assets, establish a three-day liquid asset minimum, and be subject to a 15% limit on investments in illiquid securities.

The SEC staff is also working on recommendations to address the two remaining initiatives: transition planning and stress testing. The former, on which I expect a rule proposal to soon be issued, would require investment advisers registered with the Commission to adopt and implement business continuity and transition plans to prepare for a significant disruption in their business. And staff is working hard on the latter by developing a recommendation that the Commission propose new requirements for stress testing by large investment advisers and large investment companies, as required by the Dodd-Frank Act.

Addressing Market Structure

We also have made great strides with our efforts to address issues in our equity and fixed income markets.

As noted earlier, in 2014, the Commission adopted Regulation SCI, which requires critical market participants to implement wide-ranging measures to strengthen the technology infrastructure of the U.S. securities markets.[41] To enhance market transparency and disclosure, the Commission proposed the first-ever major update of our regulations regarding alternative trading systems, including "dark pools,"[42] and Chair White has indicated that she expects the Commission will soon consider rules requiring new disclosures for how investor orders are handled by broker-dealers.

The Commission also has advanced measures related to proprietary trading firms. In March 2015, for example, the Commission proposed important amendments to our broker-dealer rules to enhance our oversight of large proprietary trading firms.[43]

Fixed income market structure has been a long-time focus at the Commission, and we continue to deepen our oversight and ensure technology is being effectively deployed to benefit investors. Chair White has indicated her interest in the broad availability of pre-trade pricing information, lower search costs, and greater price competition in this market.[44]

One important step is to help ensure that the best execution and pricing disclosure rules for the corporate bond and municipal securities markets are robust and useful to investors, and FINRA and the Municipal Securities Rulemaking Board (MSRB) have made great progress in that regard. At the Commission's urging,[45] the MSRB adopted a best execution rule for the municipal bond market similar to FINRA's best execution rule.[46] In 2014, Chair White also urged both FINRA and the MSRB to move forward on markup and markdown disclosure rules.[47] Both have advanced proposals and SEC staff has been working closely with them. Pre-trade transparency for corporate bonds and municipal securities also remains a very important objective, and the Commission staff continues to evaluate the challenging issues inherent in such a transformative market structure change.

On top of these important developments, the Commission has implemented a substantial portion of a regulatory regime for security-based swaps,[48] and proposed new rules to address key market participants, including rules to enhance the oversight of certain clearing agencies,[49] and taking the first major step in decades regarding the regulation of transfer agents.[50]

Facilitating Capital Formation and Improving Disclosure

Another important aspect of the Commission's work is the critical role we play for issuers seeking to raise capital. Our rules seek to facilitate offerings by a diverse set of companies, while ensuring that investors have the protections they deserve and to maintain confidence in our capital markets. Over the last few years, the SEC has continued our commitment to this responsibility through a number of key initiatives, with a particular emphasis on smaller businesses.

The Commission completed all of its mandates from the Jumpstart Our Business Startups Act (JOBS Act),[51] including adopting rules to: (1) increase access to capital for smaller companies by revamping and enhancing an exemption from registration for small offerings of securities;[52] (2) permit companies to offer and sell securities through equity crowdfunding,[53] and (3) allow general solicitation for unregistered offers and sales made under certain rules.[54]

The Commission also has gone beyond the JOBS Act and developed and adopted a number of additional initiatives that are designed to facilitate capital formation. In October 2015, for example, the Commission proposed rules to modernize Rule 147, which would establish a new exemption to help facilitate intrastate and regional securities offerings. [55] We also worked with our self-regulatory organizations to build a pilot program to widen the minimum quoting and trading increments — or tick sizes — for stocks of some smaller companies.[56]

The staff also is undertaking a comprehensive assessment of the effectiveness of our disclosure regime for investors and issuers. As part of that assessment, the Commission issued a concept release in April that seeks input on modernizing certain business and financial disclosure requirements in Regulation S-K for the benefit of investors and companies.[57]

Other Important Rulemakings

These rulemaking accomplishments are only a subset of the Commission's impressive work over the last few years. Pursuant to mandates of the Dodd-Frank Act,[58] for example, the Commission has established an entirely new regulatory regime for municipal advisors[59] and adopted a comprehensive package of reforms for the regulation and oversight of credit ratings agencies, including new controls on the management of conflicts of interest.[60] The Commission also adopted, jointly with other regulators, rules to implement a prohibition on proprietary trading and certain interests in hedge funds and private equity funds.[61]

In all of these efforts, our Division of Economic and Risk Analysis continues to play an integral role, providing the economic analyses that inform our rules and policies. DERA staff perform novel and complex data analyses, while consistently producing an impressive and diverse array of research that enhances our overall understanding of the securities market. In 2015 alone, our DERA economists produced more than 30 incisive papers and publications, including two major analyses to inform our work on asset management.[62]

Needless to say, DERA and our policy divisions deserve great credit for their herculean effort over these last few years.

Robust Enforcement and Examination Programs

Of course, rulemaking is only one aspect of the Commission's important work. The last three years also have been marked by a vigorous enforcement and examination program, empowered with new tools and methods to protect investors and pursue wrongdoers. In fiscal year 2015, the Commission brought over 800 enforcement actions and secured over $4 billion in monetary relief[63] — both SEC records — and performed approximately 2,000 regulatory exams,[64] a five-year high.

The strength of our enforcement program is most visible through the quality and breadth of the cases we brought — cases that span the entire securities industry, including "first of their kind" actions and heightened attention on gatekeepers, financial reporting and issuer disclosure, asset management, and market structure issues. As a testament to the staff's dogged efforts, approximately two-thirds of our substantive actions in the last fiscal year included charges against individuals.[65]

The Office of Compliance Inspections and Examinations (OCIE) also plays a critical role in protecting investors and the integrity of our capital markets by evaluating registrants' compliance with their applicable regulatory requirements. This work is essential to address deficiencies directly with registrants and, more broadly, to improve industry compliance, detect and prevent fraud, inform policy, and identify risks. Over the last few years, OCIE has continued to bolster its risk-based approach by using data analytics to better identify entities' activities that may warrant examination as well as deploying technology to make our examinations more targeted and efficient.

Conclusion

As you can see, thanks to the hard work of our dedicated staff, these last few years at the Commission have been incredibly successful and impactful. You can expect more of the same in the year ahead as staff continue to generate significant rulemakings and groundbreaking examination initiatives and enforcement actions.

Such productivity is crucial because our markets face new and rising challenges, like cybersecurity, and are confronted with new financial innovations that bring both promise and risks. These developments compel us to work harder and more collaboratively across the globe, because the challenges are not unique to any one regulator or country. By working together, we can pool our collective knowledge and expertise to ensure that 21^st century problems are met with 21^st century solutions. Thank you for allowing me to speak with you today.