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Statements on Priorities and What to Expect

Statements on Priorities and What to Expect

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Full video transcript available below:

Finally, talking about major action yet to come would not complete without some tip of the hat to the DOL Fiduciary Rule. Jennifer?

 

Thanks Russell. Next slide Joe. The next slide we're going to have a brief overview of the DOL Fiduciary Rule. The DOL Fiduciary Rule took effect in part on June 9, 2017. The full compliance date for brokers and insurance agents is January 1st of 2018. It's a highly contested and debated topic in the regulatory, legislative and judicial space. The SEC's Jay Clayton noted in a public statement that the SEC will engage the DOL in hopes to providing robust substance of input in shaping the standard of care discussion in policy making. It's very high level framework, but it gives you a sense of where things are. Next slide?

 

We're going to turn now to the portion of the presentation where we will discuss what we are hearing the regulators say directly. There are two basic sources for this portion of the presentation. The first as you can see from the slide are various conferences and seminars that we are lucky to attend here in our capacity as counselors to the industry. In that capacity, we attend these conferences eagerly in order to get a sense of what our regulators and our colleagues at the regulatory agencies are saying in public and also what they're saying directly to the industry in small groups.

 

In this respect, most of the high level stuff we're going to talk about, come from summaries of public statements made in varying topics from either the Compliance and Legal Annual Seminar hosted by SIFMA annually or from the FINRA Annual Conference. The SIFMA occurs in March every year, mid March every year and has become a large event for the compliance and legal professionals in the industry to gather together with the regulators. In particular the SEC and FINRA though, are very broad swath of regulators attend. And to get a close sense of industry direction. The FINRA Annual Conference is put on by FINRA itself in May generally of every year. It was in May this year, and again, gives a very direct line to hearing what our friends at FINRA are saying. There are representatives from a number of other regulators there who present as well.

 

Also, and importantly, we're very lucky on the day to day basis to interact both with the SEC and FINRA in our every day work life and to talk to them about issues great and small and detailed, and not so detailed in varying contexts and in varying settings. As such, we have tried to stitch into these updates a considerable amount of what we're hearing directly from the regulators in our fortunate capacity to speak to them professionally and regularly. Next slide.

 

Next slide.

 

And one more. Looking at what the regulators are saying, what the industry is saying, turn first to some, for context and to set the stage for some words in the plannery sessions of the SIFMA Compliance and Legal Seminar this year. The first morning of that seminar in perhaps a very telling event, the CEO of SIFMA, Ken Bentsen, was asked to step in for the keynote speaker, which was to have been Preet Bharara, the former US attorney for the Southern District of New York. Mr. Bharara had been fired a few days before by Executive Order, by President Trump and by his Attorney General, Jeff Sessions and so he was unable or unwilling to speak as a keynote in a public setting.

 

But Ken Bentsen set the stage for a lot of what was to come and a lot of what we will hear, noting on behalf of SIFMA, which of course is not a regulator, but an industry group that SIFMA's key priorities for 2017 really involve following the regulatory change in Washington, DC, and following where Washington is leading, because at that point, as now, there's a great deal of uncertainty as to how in what direction various appointments will go and in what direction various legislation and regulation will go and how actively.

 

In that respect SIFMA has committees that cover sort of each little area and so they work through the committee structure to cover varying initiatives. Key initiatives for SIFMA that SIFMA believes are priorities for the industry are on the wealth management and retail side, senior investors and working with senior investors and ensuring the protection of senior investors where warranted, and looking carefully at developments in Europe, in particular Brexit and whether or not that will have lasting consequences for the US industry. In particular for some of the members of the US securities industry that conduct a large cross border business.

 

Interestingly Bentsen gave a very good overview of the issues around the DOL Rule and the Retail Standard of Care, which is on everybody's mind, certainly everybody in the wealth management and retail end of the business. Noting that SIFMA's position, which in many ways is consistent with where the Choice Act has come out and where in theory the governing party of the US House of Representatives is that the SEC is the right venue for rule making and regulation on Retail Standard of Care and that the existing rule propagated by the Department of Labor with respect to Erisa and the extension of Erisa to IRA accounts is better handled by SEC tackling and rule making and that's where they are.

 

Interestingly, the SEC Chair, who has ... Mr. Clayton who has said very little on the DOL Rule has said as much as that he is eager to work with the DOL to produce a harmonized product, a harmonized regulatory product on Retail Standard of Care. Next slide.

 

Looking at the main event, the series of regulators spoke on it together at SIFMA to talk about regulatory priorities for 2017. You can see the panelists on the screen in front of you. They comprise very senior people at FINRA at the SEC, at the Federal Reserve and a representative of the State Securities Regulators, in this case the Ohio State Securities Commissioner. Next slide.

 

Looking at the regulatory priorities that were elucidated by the various participants in the panel, a couple of key points to note. Underscoring some of what Jennifer was talking about earlier with respect to appointments that have been made, and many, many appointments yet to be made by the Trump Administration is the idea of people as policy. One of the key things that was even more true in March, but remains true today is that there are a lot of very important positions at the Treasury, at the Fed, at the SEC, at the CFDC that are unfilled and that the appointment of good people to those positions is critical for moving regulation and regulatory priorities forward.

 

With that said, the regulators who spoke that day were very clear and have been clear since that they don't believe that we are in a wholesale deregulatory environment. Meaning that there does not appear to be in Washington today an appetite for wholesale elimination of regulation, not withstanding, that the Choice Act does in fact delete, as simple as delete, many, or some significant regulations such as the Volcker Rule.

 

There is no significant belief that that will necessarily come to pass, or that many, many regulations will be just eliminated. There was significant question as to an enforcement side, the future of the so called broken windows policy, which being that FINRA and the SEC seek to stamp out rule violations wherever they see them at whatever scale they see them at. There was a question as to whether enforcement will move away from a broken windows policy and towards a more priorities based and fraud focused enforcement policy.

 

For FINRAs side, as Jen will summarize later when she talks about some statements by Robert Cook and conversations with Robert Cook, FINRA is focusing on its core work. The word they use for their current mode is blocking and tackling and getting things right at the level of day to day regulation. FINRA has announced enforcement and examination priorities for 2017, but has not moved forward in 2017 with major revisions to FINRA rules and is looking more towards the day to day activity of regulating the details and getting that right and getting communications with its members right as their regulatory priority.

 

That said, looking around the table and asking people around the table, "What are the big priorities for 2017 and beyond?" The key priorities of global regulators and of the US Securities Regulators, well you've seen a list there on your screen, cyber security, financial crime and market and money laundering, market integrity, capital, culture and reputational risk, sales practices, operational risk and high risk and recidivist personnel, were all on the list.

 

In that respect, we can't stress enough how many times we hear regulators talking today about cyber security as being not merely a new area in which they found concerns and that which they've concerened themself, but as an area that underpins other regulatory priorities. Cyber security, however much we do on cyber security today we'll be doing twice as much in the future, and because cyber security is one of these things that becomes a predicate and an underpinning to things like AML controls and AML surveillance and things like market integrity and even getting down to some of the issues around culture and culture of compliance and reputational risk.

 

Just dovetailing on that Russell, some of the focus has been on training, the training of employees, because they deem employees to be the largest risk for firms, whether it's online, in person, or through blogs. The training of employees has been of paramount importance, also having a practical and relevant application from learning from mistakes in the past and improving internal procedures to address those mistakes, effectively and efficiently. Also, access management, the on-boarding and off-boarding of employees. When an employee leaves the firm to cut them off from the platform to ensure that there's no risk of re-entry into the system. Having multi factor authentication and policies and procedures for access rights. Those are some of the line items if you will, or the suggestions or items some of the regulators are focusing on including FINRA.

 

Next slide. Also, using the SIFMA seminar as a base and using the SIFMA seminar as an example of some of the things that we're hearing, the SIFMA seminar did include a panel of senior enforcement personnel, you can see the list on your screen. It included the Director of Enforcement for the SEC, then the Deputy Director, now promoted by Chair Clayton to be the Director. Also included representation from the CFDC the Deputy Chief of Enforcement for FINRA and senior representation from the Department of Justice.

 

Next slide. Looking at the enforcement discussion and the look at enforcement issues ... sorry next slide, that's right. Looking at the slides, the enforcement staff was keen to announce no major shift to enforcement priorities and not a wholesale shift to enforcement tone. We discussed already in the previous slides the thought that the world may move away from a broken windows treatment, but when you talk to the enforcement teams, they obviously, and continue to profess fealty to an aggressive enforcement agenda that is shifting towards more technical and automated things like cyber security, market issues, with the perennial concerns and focus on financial fraud and fraud on individuals, particularly seniors, and insider trading.

 

Most of the enforcement personnel that we speak to and that we're speaking on the particular panel, we are talking about, have however noted that budget constraints have become an increasing part of the discussion and increasing concern. One of the things that was just talked about regularly that enforcement staff promise to continue to address in 2017 is the idea of cooperation and coordination between enforcement agencies in respect of large enforcement matters and the issues relating to penalties as they exist between in large enforcement matters with multiple agencies.

 

In that respect, I think we have seen some very, very frank talk over the last couple of months and last couple of years that the industry is really, really suffering under the burden of multiple regulators conducting parallel enforcement and working hard to meet the demands of multiple agencies at the same time and trying to work through the potential for multiple penalties. At the same time as the enforcement regulators have been speaking to us and telling us that they are trying their best to coordinate and cooperate both in the investigation stage and in the penalty phase, but there is realism there and undercurrent throughout our discussions and throughout what we're hearing, that individual agencies have individual interests and specific interest and those interests are generally going to be pursued.

 

Some interesting and frank talk on the enforcement side and looking actively at enforcement as continuing to be active with a shift towards priorities. Jennifer, do you want to talk about [inaudible 00:31:58].

 

Sure, happy to do so, next slide Joe. Great. Robert Cook gave a presentation at SIFMA, he's the FINRA CEO. He highlighted in that speech, certain key FINRA priorities, which are numerated on the slide. It's really a general view of FINRA's operations and in connection with that review, there are three key questions that he addressed. FINRA's policies and program, FINRA's organization and operation, and FINRA's engagement with stakeholders. Now as part of addressing these three items he's emphasizing a collaborative process and clear communication between FINRA, market participant, member firms and investors in order to really help FINRA identify any issues, or help streamline each of the three categories presented above.

 

As part of that, there's this new program called FINRA360, which is a top to bottom review program. What this program is meant to do is to take into account these outside of the organization and fostering really a focus on a culture of continuous improvement at FINRA. He's been part of this talking tour around the country, trying to collaborate again with member firms, investors and market participants in order to address these key priorities for FINRA and to have an open dialogue with participants. It's really a collaborative tone that he's setting and a welcomed one. I think that he's received a lot of response in connection with this name. Next slide.

 

Again, some of the key FINRA priorities that Robert Cook highlighted were the following, some of with Russell's already mentioned. The review of the Rulebook to identify areas for improvement, supporting technology innovation, including review of the impact of fintech-related business models and tools on investors as well as broker-dealer operations. Providing new compliance tools and resources including the following; a compliance calendar, the purpose of the compliance calendar is to really help firms keep track of upcoming filing and deadlines, as well as educational opportunities, a vendor directory, which provides a list of compliance consultants, cyber security experts, advanced prep resources and the like, and also exam findings reports, which will help firms identify issues and help improve internal control to address those issues.

Those are three of the new compliance tools that FINRA's putting together and making available. Just as a general matter, just with the tone I was just mentioning is really the enhanced communication and engagement among member firms, investors, and market participants to help and enable FINRA to address these priorities effectively and efficiently. It's a very high level summary of what he addressed, but it really gives you a sense of where he's coming from and what FINRA would like to really have the dialogue among its member firm. Next slide.

 

This webinar was co-hosted with Shearman and Sterling LLP

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