At the SEC: Nothing but Crickets Remarks at SEC Speaks

Productive interactions with the SEC are fewer and further between than they were in the past. When individuals and entities come to the SEC with their novel ideas, their feedback, their concerns, their objections, their questions about implementation of a new rule or application of an old one to new circumstances, too often now they are met with . . . well, crickets. Neither staff expertise nor issues ripe for analysis are lacking, so what has changed? In part, the staff, run ragged by a punishing rulewriting agenda, does not have the bandwidth to think about hard, novel legal questions. The remote work norm also may play a role as it reduces opportunities for spontaneous staff collaboration to work through tough questions. The root of the problem, though, is that the Commission discourages the staff from offering much more than silence, shrugs, sighs, and slow-walking. The culture at the top of the SEC has changed, which in turn has changed the way the agency interacts with the public.

Countless people have told me that they used to feel comfortable coming in and speaking with the Commission and its staff, but no more. When it comes to interpretive guidance, “the Commission is closed for business.” New product ideas? “Not now.” Approval to do things for which other firms already have approval? “That permission was very limited.” Feedback on how to a particular set of facts interacts with a new rule? “We cannot provide legal advice.”

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