November 20, 2015

Closed Commission Meetings: Voting Records Are Public

Recently, I noticed that the SEC posts lists about how each SEC Commissioner voted during closed Commission meetings. The matters discussed – and voted upon – during these closed meetings typically consist of enforcement proceedings (see my “SEC Enforcement Handbook” for analysis about the stages of an investigation that require Commissioner action).

This was the first time that I noticed this type of list posted on the SEC’s website – but apparently they aren’t new since I found this list of final Commissioner votes since ’06 (it’s possible that the compilation is newer than ’06). The lists are fairly crude and hard to navigate – but that’s because they are uploads of paper documents that the SEC’s Office of Secretary maintains (see how they’re manually marked).

Some of the hardcores out there may know that a tally of how each Commissioner voted has always been available to those that sought them – at least since 1967. They have been available in the SEC’s Public Reference Room since ’67, the year that FOIA was enacted by Congress. Here’s the language from the CFR that makes them public:

(2) Records available for public inspection and copying; documents published and indexed. Except as provided in paragraph (b) of this section, the following materials are available for public inspection and copying from 10 a.m. to 3 p.m., E.T., at the public reference room located at 100 F Street, NE., Washington, DC, and, except for indices, they are published weekly in a document entitled “SEC Docket” (see paragraph (e)(8)(ii) of this section):

(i) Final opinions of the Commission, including concurring and dissenting opinions, as well as orders made by the Commission in the adjudication of cases;
(ii) Statements of policy and interpretations which have been adopted by the Commission and are not published in the FEDERAL REGISTER;
(iii) Administrative staff manuals and instructions to staff that affect a member of the public;
(iv) A record of the final votes of each member of the Commission in every Commission proceeding concluded after July 1, 1967;

I’ve never been an ardent reader of the SEC Docket, so I’m not sure for how long it listed a tally of SEC Commissioner votes. I imagine it might have until the SEC started posting them online as reviewing online versions of the Docket from the last few years reveals that tallies haven’t been included recently.

I will soon be blogging about the Public Reference Room – and how it has shrunk over the years. Before EDGAR, it’s importance can’t be overstated. Interestingly, there are vestiges of the Public Reference Room littered throughout various documents of the SEC even today. For example, the Division of Trading & Markets hasn’t changed the boilerplate in SRO rule filing notices that says the actual application is available for review in the Public Reference Room. I’m pretty sure that isn’t true these days…

Do you think the “Public Reference Room” and the “Conventional Reading Room” are the same? The latter is mentioned on this FOIA page. I’ve never heard of a “conventional” reading room. How would it differ from an “unconventional” reading room? Perhaps dimly lit…

The SEC’s 4th Annual Whistleblower Report: 4000 Tips

A few days ago, the SEC’s Office of the Whistleblower published its 4th annual report for its activities of for the past year (see this memo). The highlights include:

– 4000 whistleblower during the 2015 fiscal year, an increase of 30% over 2012
– Paid more than $54 million to 22 whistleblowers since 2011
– Paid $37 million in 2015 fiscal year alone
– Nearly 50% of award recipients were current/former employees (of which 80% relayed their concerns internally before reporting to the SEC)
– 20% of award winners submitted their information anonymously to the SEC through counsel
– 20% of the awards were reduced because of an unreasonable reporting delay

SEC Chair White gave this testimony a few days ago on the SEC’s 2017 budget request (the Corp Fin stuff is summarized in this blog)…

Swingers: Training By Animation for Section 16(b) Liability

Use this 3-minute animation by Brooks Pierce’s David Smyth to train your staff about Section 16(b) short-swing liability:

Broc Romanek