December 10, 2013

When is the SEC Required to Hold an Open Commission Meeting?

I received many emails from members last week when the news came out that the SEC would likely adopt the Volcker rules by seriatim (as noted in this WSJ article, this indeed will happen today). Members wondered why the SEC wasn’t required to hold an open Commission meeting to vote upon such important rules. Note that all five federal agencies responsible for implementing the Volcker rule requirements of Dodd-Frank will act on their rulemakings today (all 5 agencies approved; the SEC voted 3-2 to adopt the rule).

As noted in my webcast last year about how the SEC really works, the SEC makes great use of the seriatim process – roughly about 600x per year. These basically are written consents in lieu of a meeting. In literal terms, they are pieces of paper circulated for signature to all the Commissioners. Under the Sunshine Act, the Commissioners can’t get in a room and sign together – unless they do so silently – that’s why the orders are circulated in series (“seriatim” is a Latin adverb, meaning serially or in series). As long as the Commissioners aren’t getting together to act, the Sunshine Act doesn’t apply and the SEC isn’t required to hold an open Commission meeting. Open Commission meetings are held at the SEC Chair’s discretion.

Thus, it is conceivable that the SEC could take various actions for years without an holding an open Commission meeting. But it doesn’t do so because of the interest in holding the meetings, both within the SEC and outside. In the case of the Volcker rule, the SEC is coordinating with four other agencies – and my guess is that it was too complicated to attempt to coordinate action among such a large group by holding simultaneous open meetings (eg. some of the Commissioners could be unavailable to attend an open meeting today). Thanks to Hunton & Williams’ Scott Kimpel for his wisdom!

At the Fed, the Governors just reply to emails to vote and don’t even have the fancy cover pages that the SEC’s seriatim memos do. The Washington Post has posted the text of the Volcker rules.

Corp Fin’s New Head of Small Business Policy: Sebastian Gomez-Abero

I have updated our popular “Corp Fin Organization Chart” to show that Sebastian Gomez-Abero has been tapped as Corp Fin’s new Chief of Small Business Policy. Sebastian moves over from the Office of Chief Counsel. He was in the Office of Financial Services II before that…

Twitter’s IPO: Corp Fin’s Comments Are Uploaded

Now which title do you like better? Mine above about how Corp Fin has uploaded its comment letters and Twitter’s responses – or this one from the WSJ: “Unpacking Twitter’s Secret IPO Memos With the SEC“? I know, I know. The WSJ headline is sexier. Here is the correspondence related to Twitter’s IPO (which is released by the SEC; not the company as erroneously stated in the WSJ piece)…

– Broc Romanek