February 2, 2016
Meeting With SEC Commissioners: Will There Be a Crumb Trail?
If you’re someone that spends any time reviewing the lists of comment letters on the SEC’s proposed rules, you may notice that occasionally those lists have a “memo to the file” indicating that a group has met with a SEC Commissioner about that specific proposal. Here’s an example of what such a memo looks like. This begs the question: “what is the rule that requires the SEC to post a memo reflecting that a meeting between a SEC Commissioner and someone happened over a proposal?”
This is a tricky one. It’s not really a rule that causes these “memos to the file.” Rather, it’s an interpretation from the SEC’s Office of General Counsel that the Administrative Procedures Act requires a discussion of a pending rule to be memorialized for the comment file.
Arguably, if the discussion sticks to the four corners of a comment letter submitted by the meeting counterparty, no memo is required (and no memo is required for discussions not related to a proposed rule). Since there is no rule, practice among the SEC’s Divisions, Offices and Commissioners varies in terms of how meticulous they document these meetings. Said differently, not every meeting is reduced to a memo – there might not be anything in the comment file about some meetings. So to answer the question posed above: “No rule, just practice varies by Commissioner.” And practice varies by federal agency – the CFTC is very meticulous about posting memos for all outside meetings. Thanks to Scott Kimpel of Hunton & Williams for his wisdom!
Personally, I remember when they first started posting the memos. I have always thought they were silly since they don’t say anything – nor should they. I think the Commissioners should be allowed to talk to folks to become more knowledgeable about rulemaking and not have it broadcast. But see this blog by Keith Bishop, who doesn’t like these ex parte meetings…
Recently departed SEC Commissioner Dan Gallagher has joined former Commissioners Atkins & Casey to work at Patomak Global Partners, as noted in this WSJ article…
Webcast: “Activist Profiles & Playbooks”
Tune in tomorrow for the DealLawyers.com webcast – “Activist Profiles and Playbooks” – to hear Bruce Goldfarb of Okapi Partners, Damien Park of Hedge Fund Solutions and Renee Soto of Sard Verbinnen identify who the activists are – and what makes them tick.
DTCC Explores Blockchain Technology
As noted in this blog by Steve Quinlivan, the Depository Trust & Clearing Corporation – known as “DTCC,” whose subsidiary that keeps book-entries is known as “DTC” – issued this white paper examining the use of blockchain technology to settle trades…
Senator Warren has issued this 13-page report on “weak justice”…
– Broc Romanek