Risk & Compliance

SEC to Get Tougher on Corporate Wrongdoers

In a direct rebuke to her predecessor, newly appointed SEC chairman Mary Schapiro reverses policies that made it harder to investigate corporations...
Tim ReasonFebruary 6, 2009

Securities and Exchange Commission chairman Mary Schapiro announced Friday she would make it easier for SEC staff to launch formal investigations of corporations, and she overturned her predecessor’s policy of requiring commission approval for levying financial penalties against public companies.

The latter move, in particular, represents a rebuke to her predecessor, Christopher Cox, and to former SEC commissioner Paul Atkins. Atkins, in particular, had long complained that financial penalties against corporations represented a form of double jeopardy for shareholders already wounded by financial fraud. Under Cox, the SEC instituted a “penalty pilot” program requiring that staff in the Division of Enforcement to seek special approval from the commission to levy monetary fines against public companies involved in securities fraud.

Schapiro’s announcement also puts all corporations back in the spotlight at a time when blame for most of the nation’s economic woes and cries for reform have been aimed primarily at financial institutions. “At a time when the SEC needs to be deterring corporate wrongdoing, the ‘penalty pilot’ sends the wrong message,” she said. “No one should be heard credibly to question whether enforcement is a priority at the SEC.”

Schapiro said the enforcement staff had told her the pilot program had “introduced significant delays into the process of bringing a corporate penalty case; discouraged staff from arguing for a penalty in a case that might deserve a penalty; and sometimes resulted in reductions in the size of penalties imposed.” 

Schapiro also said it was too difficult for enforcement staff to launch a formal investigation, which currently also requires permission from the SEC. The commission regularly questions companies, an event sometimes characterized by companies in financial filings as “informal” inquiries. A formal investigation gives SEC staff the ability to issue subpoenas to potential witnesses. Companies almost always consider the launching of a formal investigation to be a material event requiring disclosure under securities laws.

Today, Schapiro noted, many formal investigations are approved only after a full review at a meeting of all five commissioners — a process that can take weeks. “In investigations that require use of subpoena power, time is always of the essence, and every additional day of delay can be costly,” she said.

She said the agency would immediately revert to its former practice — in place when she herself was a commissioner 15 years ago — in which staff requests to launch formal investigations can be approved by a single commissioner acting as “duty officer,” or signed off on individually by each commissioner in turn.

Schapiro also urged companies to police themselves, adding: “There is much we can do to accelerate that process, including giving shareholders a greater say on who serves on corporate boards, and how company executives are paid.” 

“Those who break the law and take advantage of investors need to know that they will face an unrelenting law enforcement agency in the SEC,” said Schapiro, “an agency that will pursue them until the full force of the law is the sure, certain, and sole reward for their wrongdoing.”