U.S. GOVERNMENT PUBLISHING OFFICE

31–492 PDF WASHINGTON : 2018

OVERSIGHT OF THE U.S. SECURITIES 

AND EXCHANGE COMMISSION 

HEARING 

BEFORE THE

COMMITTEE ON FINANCIAL SERVICES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

JUNE 21, 2018 

Printed for the use of the Committee on Financial Services 

Serial No. 115–103 

( 

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HOUSE COMMITTEE ON FINANCIAL SERVICES 

JEB HENSARLING, Texas, Chairman 

PATRICK T. MCHENRY, North Carolina, 

Vice Chairman 

PETER T. KING, New York 

EDWARD R. ROYCE, California 

FRANK D. LUCAS, Oklahoma 

STEVAN PEARCE, New Mexico 

BILL POSEY, Florida 

BLAINE LUETKEMEYER, Missouri 

BILL HUIZENGA, Michigan 

SEAN P. DUFFY, Wisconsin 

STEVE STIVERS, Ohio 

RANDY HULTGREN, Illinois 

DENNIS A. ROSS, Florida 

ROBERT PITTENGER, North Carolina 

ANN WAGNER, Missouri 

ANDY BARR, Kentucky 

KEITH J. ROTHFUS, Pennsylvania 

LUKE MESSER, Indiana 

SCOTT TIPTON, Colorado 

ROGER WILLIAMS, Texas 

BRUCE POLIQUIN, Maine 

MIA LOVE, Utah 

FRENCH HILL, Arkansas 

TOM EMMER, Minnesota 

LEE M. ZELDIN, New York 

DAVID A. TROTT, Michigan 

BARRY LOUDERMILK, Georgia 

ALEXANDER X. MOONEY, West Virginia 

THOMAS MACARTHUR, New Jersey 

WARREN DAVIDSON, Ohio 

TED BUDD, North Carolina 

DAVID KUSTOFF, Tennessee 

CLAUDIA TENNEY, New York 

TREY HOLLINGSWORTH, Indiana 

MAXINE WATERS, California, Ranking 

Member 

CAROLYN B. MALONEY, New York 

NYDIA M. VELA ́ ZQUEZ, New York 

BRAD SHERMAN, California 

GREGORY W. MEEKS, New York 

MICHAEL E. CAPUANO, Massachusetts 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

DAVID SCOTT, Georgia 

AL GREEN, Texas 

EMANUEL CLEAVER, Missouri 

GWEN MOORE, Wisconsin 

KEITH ELLISON, Minnesota 

ED PERLMUTTER, Colorado 

JAMES A. HIMES, Connecticut 

BILL FOSTER, Illinois 

DANIEL T. KILDEE, Michigan 

JOHN K. DELANEY, Maryland 

KYRSTEN SINEMA, Arizona 

JOYCE BEATTY, Ohio 

DENNY HECK, Washington 

JUAN VARGAS, California 

JOSH GOTTHEIMER, New Jersey 

VICENTE GONZALEZ, Texas 

CHARLIE CRIST, Florida 

RUBEN KIHUEN, Nevada 

SHANNON MCGAHN, Staff Director 

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C O N T E N T S 

Page 

Hearing held on: 

June 21, 2018 .................................................................................................... 1 

Appendix: 

June 21, 2018 .................................................................................................... 49 

WITNESSES 

THURSDAY, JUNE 21, 2018 

Clayton, Hon. Jay, Chairman, U.S. Securities and Exchange Commission ....... 4 

APPENDIX 

Prepared statements: 

Clayton, Hon. Jay ............................................................................................. 50 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

Ellison, Hon. Keith: 

Report entitled, ‘‘Rewarding or Hoarding? An Examination of Pay Ratios 

Revealed by Dodd-Frank’’ ............................................................................. 75 

Clayton, Hon. Jay: 

Responses to questions for the record from Representatives Beatty, Budd, 

Emmer, Luetkemeyer, Sherman, Tipton, and Wagner .............................. 101 

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OVERSIGHT OF THE U.S. SECURITIES 

AND EXCHANGE COMMISSION 

Thursday, June 21, 2018 

U.S. HOUSE OF REPRESENTATIVES, 

COMMITTEE ON FINANCIAL SERVICES, 

Washington, D.C. 

The committee met, pursuant to notice, at 10:05 a.m., in room 

2128, Rayburn House Office Building, Hon. Jeb Hensarling [chairman of the committee] presiding. 

Present: Representatives Hensarling, Royce, Lucas, Posey, 

Luetkemeyer, Huizenga, Stivers, Hultgren, Pittenger, Wagner, 

Barr, Rothfus, Tipton, Williams, Poliquin, Love, Hill, Emmer, 

Zeldin, Trott, Loudermilk, Mooney, MacArthur, Davidson, Budd, 

Kustoff, Tenney, Hollingsworth, Waters, Maloney, Velazquez, Sherman, Meeks, Scott, Green, Cleaver, Ellison, Perlmutter, Himes, 

Foster, Delaney, Sinema, Beatty, Vargas, Gottheimer, Crist, and 

Kihuen. 

Chairman HENSARLING. The committee will come to order. Members are asked to take their seats. Without objection, the Chair is 

authorized to declare a recess of the committee at any time. All 

members will have 5 legislative days within which to submit extraneous materials to the Chair for inclusion in the record. 

The hearing is entitled, ‘‘Oversight of the U.S. Securities and Exchange Commission.’’ I now recognize myself for 3–1/2 minutes to 

give an opening statement. 

I think we all know that the SEC (U.S. Securities and Exchange 

Commission) has a well-established three-part mission to include 

investor protection, the maintenance of fair, orderly, and efficient 

markets, and the promotion of capital formation. Unfortunately, in 

the recent past, this latter aspect of the mission has received short 

shrift. That is why I am very grateful to Chairman Clayton for his 

leadership in devoting more time and attention to the capital formation mission. 

Although our economy is clearly red hot today, there are some 

worrisome signs that we must confront. Number one, as recently 

as 2016, entrepreneurship, the provision of startups, reached a 40- 

year low. We know that IPOs (initial public offering) have been on 

a slide downward. Although we have seen a gradual uptick, they 

are half of what they were 20 years ago. 

Although we passed a bipartisan banking bill, it is largely a community bank, credit union, and regional banking bill, when 80 percent of our business debt comes from investors in our capital markets, not from lending officers in our banks. 

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Small business represents 99 percent of all business enterprises 

and half of our U.S. jobs. Surely they are the job engine of America. 

When companies do go public, unfortunately, many are withering 

on the vine. 

We have a number of challenges. If these businesses cannot find 

adequate capital, it begs the question, where will the Amazons, the 

Googles, and the Apples of tomorrow come from? How can we sustain long-term 3 percent GDP (Gross Domestic Product) growth 

without ensuring that we have plenty of these startups in the pipeline? 

It also begs the question, how will we successfully compete with 

China, particularly ‘‘Made in China 2025,’’ unless we infuse more 

reforms into our capital markets because we know China is committed to dominating several different fields in high tech, including 

high tech, biotech, and artificial intelligence. We know they have 

a very healthy IPO market and currently produce about roughly a 

third of the world’s IPOs, IPOs that I think we would much prefer 

to have in America. 

Another question that we have to ask ourselves and ask the 

SEC, how can Main Street investors have more opportunities to invest in their future? How can they invest in great companies, when 

we look at our IPO market and see that so many of our public companies are now older, they are bigger, they are fewer? 

When they go to the public markets, this is often at a billion dollar valuation when so much of the explosive growth took place as 

a private company that they were not allowed to invest in. Why 

was it only the wealthy that managed to invest on these companies 

on the way up and not our teachers, our barbers, our farmers, and 

our first responders? We too must act. 

We have an opportunity, since we know the Senate will be voting 

on a package of capital formation bills. Historically, this is something that has been done on a bipartisan basis in this committee. 

I note again when President Obama signed the first Jobs 1.0 Act 

into law, he said it was an important step on the journey to remove 

barriers of capital formation for entrepreneurs. That job must continue, both at the SEC and Congress. I look forward to hearing 

from our witness on the capital formation agenda of the SEC. 

I now turn to the Ranking Member for an opening statement for 

3 minutes. 

Ms. WATERS. Thank you very much, Mr. Chairman. Welcome 

back, Chairman Clayton. 

Mr. Chairman, given recent developments regarding the Volcker 

rule, I would like to offer a reminder that Congress put the Volcker 

rule into effect in order to stop banks from essentially gambling 

with taxpayer dollars. But earlier this year, the Office of the Comptroller of Currency, the Federal Reserve Board, the Federal Deposit 

Insurance Corporation, and the Commodity Futures Trading Commission (CFTC), and the Securities and Exchange Commission 

issued a proposal that appears to give banks a pass and allow them 

to continue what Congress clearly wanted to stop. 

Now the SEC’s analysis of the proposed rules said, and I quote, 

‘‘We recognize that the proposed amendment would increase moral 

hazard risk related to proprietary trading by allowing dealers to 

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take positions that are economically equivalent to positions they 

could have taken in the absence of the 2013 final rule,’’ end quote. 

I am wondering why the SEC would be supporting changes to 

the Volcker rule that will increase moral hazard risk. I am also 

concerned about the SEC’s regulation-based interest. In DoddFrank, Congress specifically gave the SEC the authority to impose 

a harmonized fiduciary standard for both brokers and investment 

advisers. But the SEC’s proposal does not do that. I am going to 

urge Chairman Clayton to ensure that the SEC’s final rules protect 

investors and retirement savers from unscrupulous actors. 

Mr. Chairman, it has been reported that you have a plan to advance a package of capital markets bills to the House floor. You 

and I have not talked about this, I have not been consulted on 

what might be included in such a package. But based on some of 

the bills the committee has marked up to date, I remain concerned 

that this package may contain bills that could weaken investor protections, given that any such legislation can make the SEC’s job 

that much harder. 

I am looking forward to Chairman Clayton’s ability to express his 

concerns to this committee about any measures that he views as 

potentially harmful to investors, and I look forward to hearing from 

him throughout this process. I thank you, and I yield back the balance of my time. 

Chairman HENSARLING. The gentlelady yields back. The Chair 

now recognizes the gentleman from Michigan, Mr. Huizenga, the 

Chairman of our Capital Markets Subcommittee. 

Mr. HUIZENGA. Thank you, Mr. Chairman. While, Chairman 

Clayton, finally our economy is starting to fire on all cylinders, and 

while tax reform is strengthening our economy, increasing paychecks, it is also starting to deliver real results for hard-working 

middle-income families, not only in west Michigan, but across the 

country. 

I had an opportunity to meet with a number of NFIB members 

from Michigan yesterday, and they echoed that sentiment. But 

moving forward, it is my goal to build on the success of tax reform 

by continuing to promote policies that empower taxpayers, 

strengthen our economy, and provide more opportunity for American taxpayers to succeed. 

Signed into law the Economic Growth Regulatory Relief and Consumer Protection Act has begun to provide much needed relief to 

consumers and small businesses on Main Street, but that is just 

the beginning of unleashing American innovation, jobs, and capital, 

while supporting economic growth. We can all acknowledge that 

the United States has the strongest, deepest, most liquid markets 

in the world, but it is becoming more apparent that our capital 

markets are becoming less and less attractive, as well, to growing 

businesses due to the one-size-fits-all securities regulations currently in place. 

For public companies, some of which are just a couple hundred 

million dollars, up to a number of massive companies knocking on 

the door of $1 trillion in value. Our capital markets are the envy 

of the world, but we have to keep it that way. We must jumpstart 

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nomic growth and provide greater investment opportunities for Mr. 

and Mrs. 401(k). 

Chairman Clayton, as we can work together, we can further our 

economy by building on the successes of the Bipartisan Jobs Act. 

Let’s work together to reverse the negative decline in public companies by modernizing our Nation’s securities regulatory structure to 

ensure the free flow of capital, job creation, and economic growth. 

I appreciate that. 

Chairman HENSARLING. The time of the gentleman has expired. 

The Chair now recognizes the gentlelady from New York, Mrs. 

Maloney, Ranking Member of our Capital Markets Subcommittee. 

Mrs. MALONEY. Thank you so much, Mr. Chairman. Welcome, 

Chairman Clayton. 

The SEC has been very active since you were here last October. 

In April, the Commission proposed a best interest rule for brokers 

who were giving recommendations to retail investors. We have 

known for a long time that retail investors do not distinguish between advice they get from investment advisors, who are already 

subject to the fiduciary rule, and sales recommendations they get 

from brokers. A best interest rule for brokers is long overdue. 

I have to say, I was somewhat disappointed that the SEC did not 

propose a uniform best interest standard for both investment advisors and brokers who were providing recommendations to retail investors. A uniform standard is exactly what the SEC staff recommended after conducting a lengthy study of this issue in 2011. 

I am concerned that the SEC’s proposed best rule is not as strong 

as it should have been and is not as strong as the Department of 

Labor’s fiduciary duty rule, so I look forward to hearing from 

Chairman Clayton on this. 

The SEC has also been quite active on cryptocurrencies and limited initial coin offerings. I think the SEC is right to be active in 

this space because there is a great number of retail investors who 

are getting hurt in cryptocurrencies. As Chairman Clayton has acknowledged, a lot of the digital tokens that have been issued in 

ICOs are in reality unregistered securities. 

I also look forward to hearing what the SEC is seeking to clarify 

the loan rule. My time is up. I look forward to your testimony. I 

yield back. Thank you. 

Chairman HENSARLING. The gentlelady yields back. 

Today we welcome back to the Committee, for his second appearance before us, the Honorable Jay Clayton, Chairman of the U.S. 

Securities and Exchange Commission. He received a more thorough 

introduction in his first appearance, so in the interest of time, we 

won’t say it again. 

Chairman Clayton, you are recognized for 5 minutes to give an 

oral presentation of your testimony. Again, welcome. 

STATEMENT OF THE HON. JAY CLAYTON 

Mr. CLAYTON. Chairman Hensarling, Ranking Member Waters, 

members of the Committee, thank you for the opportunity to testify 

before you today about the work of the SEC. I will attempt to be 

brief in my opening remarks and refer you to my written testimony, which details our work over the past year. 

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On behalf of my fellow Commissioners and the 4,500 women and 

men at the SEC, I would like to thank this Committee for its support. Congress’s recent Fiscal Year 2018 funding for the agency is 

enabling the SEC to make significant investments in furtherance 

of our efforts to modernize our information technology infrastructure, including improving our cybersecurity risk profile. 

Further, Congressional funding, including our current pending 

Fiscal Year 2019 requests, will allow us to hire experienced staff 

to improve our expertise relating to our markets, cybersecurity, 

capital formation, and protecting Main Street investors. We recognize the vote of confidence that Congress has shown in the SEC, 

and I am committed to ensuring that the agency is a prudent steward of our appropriations, and I know the SEC staff is committed 

to our mission. 

With regard to agency operations, I believe that the agency is 

running effectively. This is in large part due to the efforts of our 

senior leadership in our divisions and offices, including our 11 regional offices and their respective teams. 

We have many good teams at the SEC. My written testimony 

outlines many of our accomplishments over the past year, particularly as they relate to the long-term interests of our Main Street 

investors, including improving our standards of conduct for investment professionals, the integrity of our markets, and overall investor protection. 

Additionally, I am pleased that the Commission will meet next 

Thursday to adopt final amendments to the smaller reporting company definition, which will expand the number of public issuers eligible to provide scaled disclosure. 

I also want to bring to your attention the discussion of 

cybersecurity in my written testimony, including a discussion of 

our 2016 EDGAR intrusion. The testimony discusses the ongoing 

internal review of this matter that is being conducted by our Office 

of the General Counsel (OGC), including the remedial steps we are 

taking. 

Finally, I want to leave you with this. The women and men of 

the SEC are working hard each and every day, motivated by the 

fact that tens of millions of Americans are invested in our securities markets for the long term. The accomplishments detailed in 

my written testimony are because of the individual and collective 

efforts of these members of our SEC team. 

In closing, I would like to again thank the Committee for its continued support of the SEC, its mission, and its people. I look forward to answering any questions you may have. 

[The prepared statement of Mr. Clayton can be found on page 50 

of the appendix.] 

Chairman HENSARLING. The Chair now yields to himself for 

questioning. 

Chairman Clayton, you heard my opening statement. Again, as 

you well know, there has been a 20-year decline in IPOs. We have 

roughly half the companies going public than we did 20 years ago. 

How big of a problem is this? What investment opportunities are 

Main Street investors losing out on? 

Mr. CLAYTON. I think you broke that into two perspectives, both 

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spective, are we impeding capital formation by not having as attractive a market for companies? I think the answer to that is yes. 

Are there alternatives in the private markets? Yes. But our public 

capital markets have been an incredible engine for capital formation in America, incredible competitive advantage. We want to keep 

that. 

The second part of your question, does it trouble me that the 

suite of opportunities that is available to ordinary investors is 

shrinking on a relative basis because our public capital markets 

are shrinking on a relative basis? Yes, it troubles me. I do believe 

that the quality of opportunities that you see in the public capital 

market space are not as good as the quality opportunities that are 

available to people with a great deal of capital in the private market space. 

Chairman HENSARLING. In your opening statement, you mention 

that you have noticed an open meeting for Thursday, June 28th to 

include a number of items on smaller company reporting. Will 

there be any discussion of 404(b) of Sarbanes-Oxley at that time? 

Mr. CLAYTON. Yes, there will be. I expect there will be. The 

smaller reporting company thresholds are something we are going 

to be examining, providing more public companies with the opportunity to used scaled disclosure. There are thresholds for when 

404(b) is applicable, when companies have to comply with it. 

I believe those thresholds should be examined, and I expect a 

discussion of that at our meeting. 

Chairman HENSARLING. I must admit when I meet with a lot of 

entrepreneurs, venture capital startups, what I typically—and I 

ask the question. I just recently came back from a trip from Silicon 

Valley and one of the things I heard when I asked have you considered going public and one pithy answer was it costs too much and 

it is too big of a hassle. 

Of all the cost factors from particularly early growth stage companies is 404(b) of Sarbanes-Oxley. Looking at that on-ramp is 

something I would commend that you do. 

Speaking of commendations, the Treasury Department has 15 

different policy recommendations in the capital formation space 

that the Commission has yet to act on. Again, I applaud you for 

what you are doing. I wish it might be at a little quicker pace. 

I know this Committee has voted on a number of provisions, as 

has the full House, some of which the SEC could do on its own authority, including providing greater clarity for angel investors in 

updating the definition of accredited investor. 

How important is it that we do that? What is the Commission 

contemplating at the moment? 

Mr. CLAYTON. In the registered space, in the public capital market space, I believe in the process that the Jobs Act—I think, as 

you referred to it, JOBS Act 1.0—started, which is one-size-fits-all, 

doesn’t make sense for our public companies. We have some at the 

top of the spectrum, which are incredibly sized companies—200 

times, 300 times the size of some of our small- and medium-sized 

public companies. We are looking at that path provided by the 

JOBS Act in order to provide scaled disclosure, scaled requirements. 

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Let me go back to your conversation with Silicon Valley. At what 

point is a company big enough where going public makes sense? 

Right now, I think that point is too high on average. 

Chairman HENSARLING. Increasingly, it is a billion dollars, isn’t 

it? 

Mr. CLAYTON. If you have to get to a billion dollars for it to make 

sense to access our public capital markets, that is probably too 

high. In the private space, and particularly what you are focused 

on is the private offering space that would be available to accredited investors, is looking at the accredited investor definition. I believe it needs to be modernized. 

Chairman HENSARLING. My time has expired. I now recognize 

the Ranking Member for 5 minutes. 

Ms. WATERS. Thank you very much, Mr. Chairman. I have a 

question that I would like to propose. But before I do that, since 

you mentioned Silicon Valley, I too, was there recently. I was appalled at the lack of diversity. 

I know that there are a number of organizations, civil rights organizations that have been working very hard to increase participation of minorities and women in the Silicon Valley businesses. 

They have not done very well, and of course I would be anxious to 

be of assistance to them in making sure that we could reduce the 

costs and reduce the hassle of becoming IPOs. 

But we certainly must take into consideration whether or not 

these companies are developing, understanding that some of us are 

going to be focused on diversity in those companies. 

Having said that, let me go to my question on fiduciary. As we 

have discussed before, I am concerned that the SEC’s proposed 

Regulation Best Interest does not apply a fiduciary standard to brokers that effectively function as investment advisers by providing 

retail investors with personalized investment recommendations. 

The best way to protect investors and reduce confusion is to treat 

all advisers, regardless of their titles, the same under a fiduciary 

standard that requires them to put their clients’ interests first. Yet 

the proposal would only prohibit brokers from calling themselves 

adviser and fails to address the numerous other titles that may be 

used, like financial planner or wealth manager. 

Don’t you agree that it would be far simpler and clearer for investors to subject any broker that holds himself out as providing 

investment advice or who engages in advisory services to the Advisers Act fiduciary duty and require them to put their clients’ interests first? 

Mr. CLAYTON. Thank you for raising the question of our proposal 

to bring clarity to the broker-dealer space and the investment adviser space. 

If you will indulge me, I will explain what we are doing. There 

are two relationship models for retail investor advice in America. 

There is an investment adviser model and a broker-dealer model. 

The investment adviser model is a portfolio-based, holistic model 

where you come to me—I am your investment adviser—and I say 

tell me what your goals are: Education, retirement, what your risk 

tolerance is. I am going to help you go over your whole portfolio, 

monitor it, plan it, and I am going to charge you a fee for doing 

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that. The fees vary, the types of fees vary, but I am going to charge 

you a fee. It may be a—we can go into that in more detail. 

A broker-dealer model is, you come to me for a recommendation 

in a specific area on an episodic basis. You say, ‘‘Jay, I would like 

to get some exposure to telecom stocks and maybe some international stocks.’’ I make you a recommendation. That is the relationship there. 

What we are doing in each case, I can’t put my interests ahead 

of yours. We are bringing to the broker-dealer space that requirement. We are also bringing to the broker-dealer space care obligations, that in getting to the stocks that I will recommend to you, 

I have to go through a series of steps that ensure that those are 

right for you in your circumstances. 

That is what we are doing in the broker space. But more importantly, the conversation that I just had with you through our Form 

CRS, our client relationship summary, the customer needs to understand what I am doing in wearing either hat, how I am getting 

paid, and what my other incentives are. Most importantly, we are 

going to bring clarity to that space. 

You raised a very good point. Does the customer know how I am 

getting paid and what my motivations are and how I am mitigating 

the conflicts that creates? There is no conflict-free relationship. 

There are conflicts in an investment adviser relationship and there 

are conflicts in a broker-dealer relationship. Disclosing them, mitigating them, making sure that everybody understands what the 

motivations are, that is what we are going to do in this space. Or 

I should say that is what I want to do in this space. 

Ms. WATERS. I appreciate that. I would like to continue my conversation, my discussions with you on best interest, the client, the 

customer’s best interest always being put first. I think we need to 

continue that conversation. 

Mr. CLAYTON. I am very happy to. But I want the American people to understand that, in the investment adviser space, the investment adviser fiduciary duty, the way that is applied is you, as the 

adviser, can’t put your interests ahead of the customer. 

That is what we are going to do in the broker-dealer space. You 

as the broker-dealer can’t put your interests ahead of the customer. 

So, and I look forward—we have a long comment period. I want 

to keep talking. 

Ms. WATERS. All right. Thank you. 

Chairman HENSARLING. The time of the gentlelady has expired. 

The Chair now recognizes the gentleman from Michigan, Mr. 

Huizenga, Chairman of our Capital Markets Subcommittee. 

Mr. HUIZENGA. Thank you, Mr. Chairman, and welcome again, 

Chairman Clayton. We were starting to talk about this—or at least 

I was in my opening statement about how the SEC needs to take 

a path to make complex, obscure, outdated rules more relevant for 

today’s investors and for our capital markets. 

I can’t emphasize enough how strongly we need to do this. Many 

would argue we have a digital, fast-paced capital markets but we 

are dealing with analog and paper-based regulations, and we need 

to catch up. 

One of those—and I do want to say thank you for—to take a 

quick moment—is your recent proposed rule on what is commonly 

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referred to as the loan rule, which was issued May 2nd. This is the 

type of thing I think will be helpful for us to do that. It will help 

clarify what for a long time has been a source of ambiguity and uncertainty in capital markets. Thank you for that. 

I do want to touch on Kokesh and disgorgement. Last month, 

SEC’s Division of Enforcement co-directors testified in front of the 

Capital Markets Subcommittee that the SEC has been unable to 

recover $800 million in disgorgement since the Supreme Court’s 

Kokesh decision. 

In your testimony, you stated, quote, ‘‘allowing clever fraudsters 

to keep their ill-gotten gains at the expense of our Main Street investments, particularly those with fewer savings and more to lose, 

is inconsistent with basic fairness and undermines the confidence 

that our capital markets are fair, efficient, and provide Americans 

with opportunities for a better future,’’ close quote. 

Since the Kokesh decision, many have called for extending the 

statute of limitations assigned to disgorgement, while others have 

said that giving the SEC the authority to pursue restitution would 

be counter to the SEC’s core mission. I would like to hear from you 

what you believe Congress should be considering as we are looking 

at addressing the Kokesh issue. 

Mr. CLAYTON. Thank you. I think you described it very well. The 

Supreme Court in Kokesh determined that disgorgement was a 

penalty. Therefore, the 5-year statute of limitations that applies to 

penalties applies to disgorgement remedies. 

I believe in statutes of limitations. I think they serve a very important role. What does bother me about that decision from a practical point of view is the most well-concealed frauds may fall outside of that limitations period. I think the SEC should be in the 

business of getting money back for investors who are subject to 

fraud, a Ponzi scheme, whatnot. A possible way to do that is to give 

us restitution authority in those circumstances. 

Let me be very direct: I think we should have the authority to 

get people back their money in those cases. I do think we should 

bring cases quickly. Statute of limitations drive you to bring cases 

quickly. But in these very well-concealed situations, we should be 

able to get people their money back. 

Mr. HUIZENGA. I look forward to working with you on that because I know I want to ensure that the SEC has the necessary 

tools to protect those shareholders and investors. 

Let’s talk briefly about capital markets modernization. As I mentioned in my opening statement, we do have the strongest, deepest, 

most liquid markets and the envy of the world, but that has been 

slipping. We know that. 

Today’s equity markets have been shaped by the 1975 amendments to the Securities and Exchange Act, which goes back to the 

1930’s. But obviously markets have dramatically changed over the 

last 40 years. Do you believe that the one-size-fits-all approach to 

securities regulation is a competitive disadvantage to the United 

States as compared to our global competitors? 

Mr. CLAYTON. We have benefited greatly from our capital markets. We have 4.4 percent of the world’s population. We have over 

50 percent of the world’s largest public companies. It is pretty 

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amazing. That is largely because of our ability to create capital formation in our public capital markets. 

When I meet my regulatory brethren from around the world, 

they would like to replicate what we have. That is their goal. Now, 

capital formation around the world is good for all of us, but in the 

U.S we want to keep this going. 

Mr. HUIZENGA. Yes. We know that there are some things that 

are working well. What areas do you think we can improve? 

Mr. CLAYTON. I do think we can improve the requirements, the 

public company requirements, particularly of our smaller and medium-sized companies, to have access to capital. The rules that we 

have today are the product of history, just as you said. 

They are not the—if we sat down this afternoon, all of us, and 

tried to write rules, they would be different from the rules on the 

books because life has changed a great deal. Our Division of Corporation Finance has that perspective, and they are looking at recommending changes. We will have a release coming that cleans up 

a lot, but we need to continually do this. 

Mr. HUIZENGA. I look forward to working with you. Thanks, Mr. 

Chairman. 

Chairman HENSARLING. The time of the gentleman has expired. 

The Chair now recognizes the gentlelady from New York, Mrs. 

Maloney, Ranking Member of our Capital Markets Subcommittee. 

Mrs. MALONEY. Thank you. 

Chairman Clayton, the last time you were here, I asked you 

whether the SEC’s pilot program on access fees charged by exchanges was going to include a zero rebate bucket. You did mention 

that you were going to include a zero bucket, and thank you very 

much for that. 

My question is, when do you expect to finalize the access fee program, this year, this summer, this fall, this winter? When? 

Mr. CLAYTON. We are going through the Administrative Procedures Act process. We have proposed the rule. It is out for comment. I believe that comment period is coming to an end rather 

quickly. It is on my near-term agenda. If I had to sit here today, 

I would say sometime this fall. 

Mrs. MALONEY. Thank you. 

Last month, Bloomberg reported on a very troubling meeting 

that one of your colleagues, Commissioner Piwowar had with 

Citigroup. In the wake of the Parkland shootings, Citi had just announced a new policy on guns in which Citi stated that it will require all the retailers that it does business with to adopt best practices on gun sales, such as limiting gun sales to people who are 

over 21 and have passed a background check and not selling socalled bump stocks. 

I think that Citi’s new policy is very responsible, a very responsible decision. They weren’t the only bank to do so. Bank of America also announced that it would restrict its business with gun 

manufacturers that make military-style guns for civilian use. 

But Commissioner Piwowar was apparently upset with Citi’s new 

policy on guns when he met with a group of their executives in 

April. According to a press report in Bloomberg, Commission 

Piwowar, quote, ‘‘castigated the Citi executives for,’’ quote, ‘‘straying into social policy,’’ end quote. 

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The report also stated that he issued a thinly veiled threat to 

Citi, saying that their new gun policy would cause them to lose 

votes on SEC rules that Citi supported, even though the SEC has 

absolutely no role in setting firearms policy in the United States. 

My question is, do you think it was appropriate for Commissioner Piwowar to use his position at the SEC to try to influence 

a private company’s policies on firearms or any private policy that 

doesn’t affect the SEC? 

Mr. CLAYTON. I am not going to comment on the subject matter 

of those press reports. In a separate hearing over on the Senate 

side, this was raised, and the question of whether there should be 

an inspector general’s inquiry was raised, and I am going to leave 

it at that. 

Mrs. MALONEY. OK. Then let me ask you, since we are not talking about Piwowar now. But would you base your vote on the SEC 

rulemaking on whether the companies that support the rule do 

business with gun manufacturers? 

Mr. CLAYTON. I will tell you my perspective— 

Mrs. MALONEY. That is not part of an IG report. 

Mr. CLAYTON. No, no, no and I will tell you what perspective I 

bring to this job, which is we have our mission. I pursue all of our 

rulemaking. We are all human beings. I hope I pursue all of our 

rulemaking and I pursue all of our enforcement cases with the idea 

of what is in the long-term interests of the people who put money 

in our market and leave it there. That is the perspective I bring. 

Mrs. MALONEY. Social policy would not influence you? It is the 

markets and your job? 

Mr. CLAYTON. Yes. 

Mrs. MALONEY. Thank you. The question also I would like clarification on your proposed best interest rule for broker-dealers. The 

SEC proposed a rule that says, ‘‘a broker can’t put his own financial interests ahead of the interest of the retail customer,’’ end 

quote. The proposed rule then goes on to imply that a broker will 

satisfy this obligation as long as the broker’s interests aren’t, 

quote, ‘‘the predominant motivating factor behind the recommendations,’’ end quote. 

Is this your intent? Do you really mean to equate these two 

things? In other words, under the proposed rule, as long as a broker’s own interest wasn’t the predominant motivating factor behind 

a recommendation, does that mean the broker automatically did 

not put his own interest ahead of his customers? 

Mr. CLAYTON. I think you are taking that language—let me be 

clear on what we are proposing. The broker cannot put their interests ahead of the customer’s. I believe that language is a recognition of the fact that there is no conflict-free advice model. But we 

are absolutely clear that the broker can’t put their financial or 

other interests ahead of the client’s. 

Mrs. MALONEY. Thank you. 

Chairman HENSARLING. The time of the gentlelady has expired. 

The Chair now recognizes the gentleman from Missouri, Mr. 

Luetkemeyer, Chairman of our Financial Institutions Subcommittee. 

Mr. LUETKEMEYER. Thank you, Mr. Chairman. 

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Chairman Clayton, thanks for being here today. Last week, I 

sent a letter to you and other financial regulators outlining my concerns on guidance being treated by examiners as rules creating 

binding obligation on financial firms. This practice is fairly prolific 

in the banking space, but I am not sure your agency is immune 

from the trend. Essentially, examiners are treating guidance as 

rule without subjecting anything to the process outlined in the 

Congressional review process. 

Are you willing to communicate to your staff, and in the words 

of the Federal Reserve Chairman Jay Powell and Vice Chairman 

Randy Quarles, ‘‘that rules are rules and guidance are guidance?’’ 

Mr. CLAYTON. I think that articulates my view of rules and guidance pretty well. 

Mr. LUETKEMEYER. I know that in my discussion with Vice 

Chairman Quarles about this, about the letter he was receiving— 

I assume you received yours—he wants to be the individual who 

tries to bring all regulatory agencies together to have a common 

way of going about issuing guidance, even to the point of having 

a disclaimer in the guidance that says this is guidance, this is not 

a rule, and therefore punitive action will not be taken if you do not 

adhere to this guidance, because it is a suggestion, it is not a rule. 

As we have seen with the past Administration, especially with 

the CFPB, whenever they produce guidance, they suddenly believe 

that they have the authority to enforce that as a rule. It is very 

concerning to me. I don’t know that your agency does a lot of it, 

but I am sure there is some. That is my reason for my concern this 

morning, and I hope that you will be willing to join us in this effort 

to try and clear up for your examiners to be able to know what are 

rules and what are guidance and appropriately adhere to those. 

Mr. CLAYTON. I very much agree with clarity in that area, and 

I very much agree with our system, which is to get to rules, you 

have to go through a process, and guidance is guidance. 

Mr. LUETKEMEYER. Thank you for that. 

Also, I have spent a lot of time working on issues surrounding 

data security in the last several months here and breach notification. Along those lines, I am concerned about the Government’s hypocrisy in setting standards for cybersecurity readiness and disclosure. 

The SEC intrusion that occurred in 2016, which you described in 

your written testimony, wasn’t publicly disclosed until the fall of 

2017, shortly after you got there. The SEC itself holds self-regulatory organizations, SROs, to an immediate standard for disclosure of cybersecurity incidents under regulation SCI. Public companies are held to a materiality standard for disclosure. 

My question is, should the SEC and other Federal agencies be 

held to the same standard which they hold with respect to supervised entities and SROs? 

Mr. CLAYTON. The short answer to that question is, based on my 

experience at the agency and with other agencies, I don’t think it 

should be the same standard. There are governmental considerations that would go into whether to make a disclosure or not. 

Do the same principles apply when we decided to disclose our 

cyber incident? Was it on my mind that the American people 

should know and that they should know what we are doing about 

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it? Absolutely. But I could see other circumstances, maybe not at 

the SEC, but at other agencies, where national security and other 

considerations weigh against immediate disclosure. 

I don’t want to say, certainly for other agencies or make a blanket statement that the exact same standard should apply. But 

should we be thinking about what I consider our shareholders, the 

American people, as we disclose what happens? Absolutely. That is 

the approach that we took when we disclosed the cyber incident. 

Mr. LUETKEMEYER. I know that the OGC is doing an internal review of the incident, and they are not done yet, according to your 

testimony this morning. We don’t have some answers there. But, 

I am very concerned. We have discussed this before. It took a year 

for this disclosure to happen. 

I understand national security interest. I understand that law 

enforcement may want to try and find a way to track down the 

guys or gals or entities, whoever they are, who are trying to break 

in and do nefarious things here. 

But at the same time, as you just disclosed, you are the keeper 

of the private data of our citizens. The last time we talked about 

this, my question to you was, did you feel that the markets were 

manipulated by this event of people getting into your data? Your 

response was, we are not sure, I don’t think so. 

Quite frankly Chairman, that answer is not good enough. We 

have to improve on that. I am hopeful that the report will give you 

the guidance it takes to make sure this doesn’t happen again and, 

if it does, that there could be a more timely disclosure of this incident so that the people can take their own actions to protect themselves or that businesses can take their own actions to protect 

themselves, if the data is disclosed. 

I yield back. Thank you. 

Mr. CLAYTON. I agree. 

Chairman HENSARLING. The time of the gentleman has expired. 

The Chair now recognizes the gentlelady from New York, Ms. 

Velazquez. 

Ms. VELAZQUEZ. Thank you, Mr. Chairman. Mr. Clayton, welcome. 

Mr. CLAYTON. Thank you. 

Ms. VELAZQUEZ. Puerto Rico has been hit by two hurricanes, a 

financial crisis that entailed many actors, including government 

mismanagement, bondholders, hedge funds, vultures, and then 

Hurricane Maria. I offered legislation that was included in S. 2155, 

and that legislation is known as the U.S. Territories Investor Protection Act closes a huge loophole that allow UBS and other financial firms operating in Puerto Rico and in any other U.S. territory 

to rip off millions from ordinary investors. 

My question to you is, when can we expect the SEC to begin implementing this badly needed provision? 

Mr. CLAYTON. Thank you. This is the provision that removes the 

exemption from the 1940 Act for funds organized? 

Ms. VELAZQUEZ. Correct, yes. 

Mr. CLAYTON. I thank you for that legislation. We are going to 

move forward with that. I think you characterized it correctly. It 

does close what could be characterized as a loophole, and it should 

be done. 

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Ms. VELAZQUEZ. OK. I am very excited to hear that. Mr. Clayton, 

I am also concerned that a position of advocate for small business 

capital formation has not been filled. Do you see any value in that 

position? 

Mr. CLAYTON. I am disappointed that we have not yet filled that 

position. We have employed a search firm to try and help us find 

the right person for that. More importantly to your question, why 

am I disappointed? I think that voice should be a permanent voice 

in the work we do at the SEC. 

Ms. VELAZQUEZ. When do you expect to fill that position? 

Mr. CLAYTON. I would like to fill it tomorrow. We have some candidates that we are vetting. This is a Commission decision, so I 

can’t speak for my fellow Commissioners, but I would like to do it 

as quickly as possible. 

Ms. VELAZQUEZ. OK. Let me explain to you why I am so concerned about the fact that that position has not been filled since 

it was created in 2016. Earlier this year, language of my bill, 4792, 

the Small Business Access to Capital After a Natural Disaster Act, 

was enacted into law. The bill requires the SEC advocate for small 

business capital formation to issue a report to Congress on ways 

small businesses can access private capital following a hurricane or 

other natural disaster. 

This report cannot be issued until an advocate is hired. I hear 

that you are committed and that you will not come here 6 months 

later and I will ask the same question to hear that it has not been 

filled. 

Mr. CLAYTON. I sure hope not. 

Ms. VELAZQUEZ. Will you be interviewing candidates with experience on capital formation issues after a natural disaster? 

Mr. CLAYTON. We are interviewing candidates. In the context of 

interviewing candidates, the interviews that I have had, I have not 

asked that question, but I will now. 

Ms. VELAZQUEZ. In terms of the specific language that was included into the bill, it requires someone to be able to issue a report 

related to capital formation, access to capital formation after a natural disaster. 

Earlier this week, the SEC imposed Bank of America’s subsidiary 

Merrill Lynch with a $42 million civil penalty for misleading customers about how it handled their orders. While Merrill Lynch entered the scheme known as masking, in May 2013, the SEC order 

indicates that Merrill Lynch did not inform customers about its 

past practices, but rather took steps to hide the misconduct. 

This follows an SEC announcement earlier this month that Merrill Lynch will pay more than $15 million to settle charges. Can 

you tell us how the SEC determined the level of fines and payments against Merrill Lynch in each of these two instances? 

Mr. CLAYTON. I don’t think it is appropriate for me to comment 

on the specific circumstances of a case. I can tell you that the way 

we operate is, our Division of Enforcement and the people tasked 

with bringing these cases, formulate a recommendation to the Commission, and the fine and the other sanctions are part of that recommendation, and that is what we vote on. 

mcarroll on FSR431 with DISTILLER

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Chairman HENSARLING. The time of the gentlelady has expired. 

The Chair now recognizes the gentlelady from Missouri, Mrs. Wagner, Chair of our Oversight and Investigations Subcommittee. 

Mrs. WAGNER. Thank you, Chairman Hensarling. Welcome, 

Chairman Clayton. Breaking news: The Supreme Court just ruled 

that the SEC did not follow proper procedures prior to your moving 

into this space and into this job when appointing administrative 

law judges. In fact, it says that these administrative law judges appointed by the SEC and other Federal agencies are inferior officers, 

and many of these inferior officers have adversely affected a number of my constituents in Missouri’s Second Congressional District, 

and that they are subject to the appointments clause of the Constitution. 

I think this is going to have broad ramifications now for an array 

of Federal agencies that employ in-house judges, including the 

SEC. I know this is breaking news, but I look forward to hearing 

how this will influence your practices at the SEC vis-a-vis the administrative law judges going forward. I just thought I would toss 

that out there. 

I want to start this morning by thanking you and your staff for 

their work on the proposed best interest standard rule. As many 

of my colleagues know, I have been an outspoken critic of the Department of Labor’s misguided fiduciary rule, and I am happy to 

see that the SEC is finally taking the lead as Dodd-Frank, frankly, 

asked them to do some 8 years ago. 

In testimony before the Committee last year, you identified key 

principles that you felt needed to guide the SEC’s approach when 

seeking a new rule that is, in fact, a best interest standard for 

broker-dealers in these areas for clarity, consistency, and coordination. 

Let me start by asking you this: Do you believe the SEC has 

achieved this goal in their proposed rule? 

Mr. CLAYTON. I do. I want to say, we took those concepts and 

then we added an additional lens. This was a truly collaborative effort around the— 

Mrs. WAGNER. With the Department of Labor, I hope, too. 

Mr. CLAYTON. With the Department of Labor. I am in contact 

with Secretary Acosta. Our staffs are in contact with each other. 

In fact, our inspection staff recently connected with the Department of Labor to show how we would inspect for compliance with 

this rule. We want to bring a common approach to this space. 

The other thing that came out of this drafting process and interactions was, let’s align what investors expect from their professional with the law. Because if we are aligning expectations, it is 

a lot easier to get clarity. 

Mrs. WAGNER. Agreed. I have several more questions. You talked 

about having investor testing. Has that process started? If not, are 

you still going to follow through with that part of the proposed 

rule? 

Mr. CLAYTON. Our Office of the Investor Advocate is doing investor testing, but that is not the only investor testing we are doing. 

We have scheduled six town halls around the country to go out and 

interact with investors, explain the rule to them, ask them what 

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they think about it. I have participated in the first two; I plan to 

participate in two of the remaining four. 

Mrs. WAGNER. Great. 

Mr. CLAYTON. That is actually really valuable. 

Mrs. WAGNER. Are you willing to make this feedback that you 

get from the investor testing public, sir? 

Mr. CLAYTON. Investor testing feedback? 

Mrs. WAGNER. Yes, are you willing to make this public, your 

findings through these investor testings? I know you are saying 

about a public town hall, so I assume that would be public. 

Mr. CLAYTON. That is all public. Comments are all public. I don’t 

want to make a blanket statement, but I expect that the results of 

the investor testing will be publicly available in some form. 

Mrs. WAGNER. In testimony before the Senate Appropriations 

Committee, you said, quote, ‘‘I am not going to take forever,’’ referring to completing the rule. I know the comment period ends the 

first week of August. Are you still on track, Chairman Clayton, to 

complete the comment period? Or do you think you are going to 

need to extend it? 

Mr. CLAYTON. I think I will see in August. But right now I think 

a good comment, good lengthy comment period of 90 days. This 

issue has been around for at least 10 years. 

Mrs. WAGNER. Don’t I know. 

Mr. CLAYTON. It is time for—people have been heard— 

Mrs. WAGNER. Has the response from the industry been positive? 

Because it is the industry that actually represents the low- and 

middle-income investors and retail savers that we are trying to protect. Has it been positive, the feedback? 

Mr. CLAYTON. I think overall, I am very pleased with the feedback. 

Mrs. WAGNER. So am I. I have preemption questions, Mr. Chairman, that I want to talk about, but I think I will submit those for 

the record, and I yield back the balance of my time, and I thank 

you for your tremendous work in this arena. 

Chairman HENSARLING. The time of the gentlelady has expired. 

The Chair now recognizes the gentleman from California, Mr. Sherman. 

Mr. SHERMAN. Mr. Luetkemeyer and I and others have worked 

to try to have more information sent electronically with paper only 

being sent when requested. When you were here in October, I 

asked you about Rule 30e–3 and I want to thank you for moving 

forward with that rule, which will modernize the default delivery 

method for mutual fund disclosures from paper to electronic, while 

protecting a permanent right to paper for those who prefer it. You 

are going to save investors $2 billion. You are going to save 2 million trees. Good work. 

Mr. CLAYTON. Thanks. 

Mr. SHERMAN. My question is, what more can the SEC do in 

terms of electronic delivery that can benefit investors and trees? 

Mr. CLAYTON. So that—30e–3 was a big step. I appreciate all the 

comments from this Committee and others. I think we landed in 

a good spot. But it is just a start. As has been discussed in many 

of the questions today, modernizing our rules, including our communications methods, is front of mind in our Division of Investmcarroll on FSR431 with DISTILLER

17 

ment Management, our Division of Corporation Finance, and 

throughout the SEC. Next Thursday, I expect we will vote on 

XBRL and the inclusion of XBRL tagging, which, again, is aimed 

at modernizing our delivery of data to the investment community. 

Mr. SHERMAN. Let me move on. The SEC has pretty much left 

it to the FASB (Financial Accounting Standards Board), but accounting is what determines what happens to stock prices. Financial statements are based on a 100-year-old view as to what every 

company would disclose in terms of numerical information. 

But investors care. For example, if you are investing in retail 

stores, you want to know same store sales. I hope that the SEC 

would look toward either you or getting FASB to define the terms 

that are important to numerical information to investors in particular industries and to make sure that those numbers are audited, because right now Target has one definition of same store 

sales, Nordstrom has another, and both of them issue unaudited information. But I will ask you to respond to that for the record. 

I want to associate myself with the comments about 

cryptocurrencies—they are securities, as you pointed out to the 

Senate—and pick up on your current about accredited investor 

rules. When these rules came out, the definition was a million dollars in assets, $200,000 in income, and those were staggeringly 

high numbers in the 1980’s. 

Now, in effect, those numbers represent one-third of the purchasing power, 10 times as many families fit into the category, 

which means 10 times as many families don’t get the protection. 

One of my colleagues asked, why can’t the average barber or teacher get all those great investments that seem to be reserved for— 

why can’t anybody charge into the minefield? Why do we limit that 

just to explosive ordnance disposal experts? 

Will you revisit the accredited investor definition and index up 

those numbers? Because either they were wrong when the SEC 

issued them or they are wrong now. 

Mr. CLAYTON. There is a lot to—let me agree with you on the 

concept of an accredited investor definition, which is, no, we 

shouldn’t just let people charge into the minefield, as you characterize it, without ascertaining to some extent whether they are capable of handling the private investment arena. Completely agree 

with that. We have chosen the accredited investor definition as 

that gatekeeping function to the private investor arena— 

Mr. SHERMAN. This doesn’t mean that they can’t make the investment. It just means that they need to get advice, and all those 

rich people who make these investments are getting advice and 

putting in effort. 

Mr. CLAYTON. Anyway, we can have a longer discussion about 

this. 

Mr. SHERMAN. Yes, because I— 

Mr. CLAYTON. It is a very complicated issue. 

Mr. SHERMAN. I want to sneak in one more question. 

Mr. CLAYTON. OK. 

Mr. SHERMAN. We had the meltdown in 2008 because the bond 

rating agencies gave AAA to Alt A. They gave buy ratings to bad 

bonds. We put into Dodd-Frank a provision, the Franken-Sherman 

Amendment, that would eliminate the system where the issuer semcarroll on FSR431 with DISTILLER

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lects the bond rating agency. We don’t let the home team select the 

umpire, especially if the umpire makes a million dollars a game. 

I would hope—the SEC found a loophole in that requirement, 

issued a report and decided not to do it. That was your predecessor’s mistake. I hope you will take a look at this and use the 

power you have to end the issuer selects rater system. 

Chairman HENSARLING. The time of the gentleman has expired. 

The Chair now recognizes the gentleman from Kentucky, Mr. Barr, 

Chairman of our Monetary Policy and Trade Subcommittee. 

Mr. BARR. Thank you, Mr. Chairman. 

Chairman Clayton, good to see you again. Thanks for being with 

us. Some publicly traded firms, especially early stage bio firms, and 

some equity exchanges have expressed concern about the absence 

of a disclosure requirement for those who bet against a company 

by taking a large short position in that company’s stock. 

They point out that there is a regulatory gap between long and 

short sellers since there are extensive disclosure obligations for investors who bet on a company by buying its stock or investing long. 

They have argued in favor of a short position disclosure regime, 

noting that long positions over 5 percent of outstanding shares require public disclosure while equally large short positions have no 

comparable requirement. 

On the other side of this argument, there are those who will 

point out the critical liquidity provided by short selling. They make 

the point that short positions are by definition not related to corporate ownership and instead are a strategic trading tool. They 

don’t share the view that stealth short positions are as big of an 

issue. 

Again, they make the point that short positions provide critical 

liquidity to public markets and that short sellers are responsible 

for a substantial portion of equity trading volume, and that short 

sellers, because they provide that heterogeneity of views in equity 

markets about future share prices, provide efficiency to the markets. 

The concern that they express with a disclosure regime would be 

that the reporting requirements would discourage institutional investors from taking short positions. Those reporting costs would 

then reduce overall short positions and, therefore, reduce market liquidity. I am just setting up the debate there. 

I would be interested—now, of course, there is a provision in 

Dodd-Frank that counsels the SEC in favor of a disclosure regime 

for short positions, large short positions. I am wondering if you or 

the Commission have a view on this issue and how would you approach that issue if asked to do so? 

Mr. CLAYTON. I don’t have a definitive view on a particular rule 

as we sit here today or not a rule, but I think you framed it very 

well. If you don’t mind, to try and give you my perspective, I will 

frame it as I look at it, which is, there are valid points in those 

arguments. The people who say that being able to go short and 

doing so as a fundamental view on the company adds liquidity, 

adds discipline, adds price transparency to the market. Great. I 

agree. 

There are people who say that there are people who use short 

selling not because of a fundamentally different view of the price 

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of the company, not for liquidity, but to take advantage of trading 

opportunities that cause the company’s quoted value to depart from 

what it otherwise might be. To the extent we can get at that type 

of behavior, if it exists, I don’t know to the extent to which it exists, but if it exists, the extent to which it exists without affecting 

liquidity and the discipline, that is how you should look at that 

problem in my view. 

Mr. BARR. Yes, it is a balancing act for sure, and I appreciate 

your thoughts on that. In your last appearance before us, Mr. 

Chairman, you talked about the importance of reducing the reporting requirements for public companies to reduce some of the burdens that are maybe limiting IPOs. You did respond with respect 

to a question I had about disclosures for mining companies. 

I am just wondering—and the response that you sent to us on 

March 23rd indicated that you planned to finalize rules to modernize and clarify certain disclosure requirements for companies 

engaged in mining operations. Do you have any update on that? 

Mr. CLAYTON. We are working on a proposed rule. It is on our 

short-term agenda. I will just reiterate this. Our short-term agenda 

that we publish and are required to publish is what we are trying 

to finish in this fiscal year. 

Mr. BARR. Finally, we recognize that getting the fiduciary rulemaking right is more important than rushing the process and getting it wrong, but as you know, many broker-dealers in anticipation 

of the DOL rule have invested a considerable amount of time and 

energy and resources in getting ready for that. Just curious about 

a timetable, because the uncertainty is creating some level of consternation. 

Mr. CLAYTON. The comment period ends in August. We will collect the comments, go through the process. I am not going to set 

a specific date, but we should not take forever. 

Mr. BARR. Thank you. I yield back. 

Chairman HENSARLING. The time of the gentleman has expired. 

The Chair now recognizes the gentleman from Georgia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. I appreciate it. Welcome, 

Mr. Clayton. It is always good to have you. 

I have been at the front of the spear on this fiduciary rule since 

its very conception. You recall that when we put Dodd-Frank together, we required the SEC to come up with a rule that would 

raise the broker-dealer standard and would harmonize that standard with the obligations that investment advisers have to follow 

today. 

Now, here is the point. When we did that, we put that in DoddFrank, but we exclusively said that was the SEC’s responsibility, 

not the Department of Labor. Now, the Department of Labor does 

have a piece in this, of course, with the retirement accounts, but 

you see where this is if we don’t have the SEC at the leadership, 

being aggressive, to be able to set these standards the way they 

are. 

As I said, I have been dealing with this. I was the only Democrat 

to cross over and vote for this bill with Mrs. Wagner. We were able 

to increase that great bipartisanship when we got it to the floor 

with two more Democrats. We are growing this bipartisanship, but 

mcarroll on FSR431 with DISTILLER

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there is great concern on both sides of the aisle, but certainly on 

mine, as to confusion within this. 

For example, in terms of establishing the best interests that you 

have going forward, you have said that to do this we must meet 

several obligations. First, there is the disclosure obligation. Then 

we have the care obligation. Then we have the conflict of interest 

obligation. 

My concern and the concern of both the investment community 

as well as the investor is that these concerns, this complexity 

makes it difficult for the investment industry to discern what we 

need, which is a clear path to compliance. You have done a remarkable job in explaining this. 

But I want to ask you, do you believe that the Securities and Exchange Commission is the best suited place to come up with a 

standard that indeed can be harmonized across all investment categories and all types of investment adviser? 

Mr. CLAYTON. I firmly believe that. 

Mr. SCOTT. All right. Let me ask you this, also, because here is 

another major concern, and this is where I understand the Labor 

Department’s retirement situation. We are faced with a horrendous 

retirement boom right now, because we have this baby boomer generation that really produced itself right after World War II that is 

coming. 

I wanted to know if you will commit to this committee today that 

your intention is to see this proposal through to the final rulemaking. Now, that question has been asked to you in a couple of 

different ways, but you haven’t been clear. Are you going to be the 

man that is going to see this through to the end? 

Mr. CLAYTON. No one person can do this, but this is— 

Mr. SCOTT. Will you be the captain of the ship? 

Mr. CLAYTON. Yes. 

Mr. SCOTT. You said you will? 

Mr. CLAYTON. Yes. 

Mr. SCOTT. All right. Thank you. 

Mr. CLAYTON. Thank you. 

Mr. SCOTT. Glad you will be the captain of the ship. 

Chairman HENSARLING. The time of the gentleman has expired. 

The Chair now recognizes the gentleman from Oklahoma, Mr. 

Lucas, former Chairman of the House Agricultural Committee. 

Mr. LUCAS. Thank you, Mr. Chairman. I can’t speak to the issue 

of who is captain of the ship, but in my time on this committee, 

I have always tried to be very pragmatic and very practical in my 

perspectives, my questions, and the focus. 

If you don’t mind, Chairman Clayton, let’s visit for a moment 

about some issues that impact a very large and substantially important job creator in my district. While everyone thinks about me 

as the ag guy, we have a major oil and gas industry in Oklahoma. 

As many of my colleagues know, the United States has experienced 

a rather remarkable growth in energy independence, and that has 

occurred primarily due to the increase in shale production in places 

like the Bakken and in the Marcellus formations. 

But I would like to focus on how the SEC treats proven, but undeveloped reserves, because it concerns me a bit. Currently domestic producers can report on their annual filings only those reserves 

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they plan to recover within a 5-year window. This has been the policy since 2008. 

At that time, shale accounted for a much smaller percentage of 

oil and gas production than it does now, and I would suggest to you 

that this 5-year rule might not reflect the realities of the new 

American energy landscape. These shale formations are so vast and 

finite that a proper development plan will often exceed 5 years. 

Chairman Clayton, given this change in domestic energy production, have you and your staff given any thoughts to changing the 

5-year rule for these reserves? 

Mr. CLAYTON. The short answer is yes, we have given thought— 

and let me make sure that, if you indulge me, make sure we are 

on the same page. It is in particular, yes, because I am concerned 

in this space that the way our rules require disclosure is inconsistent with the way investors value these companies. They are 

looking for additional disclosures, and we should make sure that 

our rules line up with what investors think is the material information. 

Mr. LUCAS. Exactly. Because from my perspective, the 5-year 

rule may prevent a business from being able to disclose the full extent of its assets to investors. 

Mr. CLAYTON. I will actually just add to that, that when that is 

the case, you have information asymmetries, and that is not what 

we want. 

Mr. LUCAS. I will leave on this particular question with one last 

thought, and that is 51 percent of all domestic crude oil and 63 percent, almost 64 percent of all domestic natural gas come from shale 

formations, and I think that is just an amazing statement about 

the advances in technology and utilization and all those things. 

Second, I noticed in your testimony that you expressed a commitment to working on the Commission’s Title VII regulations surrounding security based swaps. I very much appreciate this, given 

my desire to see derivatives markets work for all participants and, 

quite frankly, the long delay in getting these regulations out the 

door. 

I also very much appreciate your testimony mentioned active engagement with the CFTC. Can you elaborate at all on some of that 

engagement with your colleagues at the other entity? 

Mr. CLAYTON. Yes. We have set up a bilateral process to get 

through the rules that we need to get through with the hope of ensuring that they are either harmonized or, if we can’t harmonize 

them because of our different mandates and the different types, 

that they are at least not inconsistent or creating problems for each 

other. But we are working closely with the CFTC, and I want to 

say, I really appreciate the leadership of Chairman Giancarlo in 

that area. 

Mr. LUCAS. I think he is a great leader, and you have touched 

on exactly the point that I was trying to make, whether it was 

Treasury reports last year calling for more harmonization or just 

the nature of the markets. I think it is critically important that everyone be able to utilize these tools in their businesses in the most 

cost-effective fashion possible. 

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22 

Therefore, Mr. Chairman, in that spirit of brevity and focus, I 

thank you for my time, and lo and behold, Mr. Chairman, I yield 

back. 

Chairman HENSARLING. The gentleman from Oklahoma yields 

back. The Chair now recognizes the gentleman from New York, Mr. 

Meeks. 

Mr. MEEKS. Thank you, Mr. Chairman. Welcome, Commissioner 

Clayton. Now that I know that you are, in fact, the captain of the 

ship. 

Mr. CLAYTON. I knew that was going to get me in trouble. 

Thanks, Mr. Scott. 

Mr. MEEKS. I want to follow up on some questions that I posed 

to one of your lieutenants, the director of the SEC’s Division of Corporation and Finance in April. I asked him about the SEC’s intention to either adopt or reject recommendations from the agency’s 

Investor Advisory Committee. 

The committee recommended better disclosure rules around dualclass stock structures. The advisory committee also recommended 

creating a pilot program to monitor shareholder disputes arising 

out of such structures. These structures are common among Silicon 

Valley’s tech giants, like Facebook. 

In fact, you may have seen where there was—I read in an article—an investors revolt against Mark Zuckerberg at the annual 

shareholders’ meeting, because they can create a system where the 

average investors, including teachers and firefighters and the like, 

have less power to hold CEOs and board directors accountable. We 

see when we can’t, things can happen. 

My question to you is, A, what is your personal opinion on the 

potential investor harm posed by dual-class stock structures? And, 

B, what is the status of the investor advisory’s recommendations at 

the SEC? 

Mr. CLAYTON. OK. Let me, if you don’t mind, I will take those 

in reverse order. The Investor Advisory Committee recommendation regarding making sure that the disclosure around governance 

and what dual-class structures mean to governance, in particular 

to your point, what it means to investors in terms of their ability 

to participate in governance, I 100 percent agree that that disclosure needs to be clear and accessible. 

To the extent it is murky, it should not be. Your rights as a 

shareholder, whether they are one share, one vote or whether there 

is a super vote stock that dilutes your voting ownership, you should 

be able to know that clearly from the disclosure. I believe that. 

Now, my personal views on corporate governance, I am not a 

one-size-fits-all corporate governance person. My experience across 

our markets and across the globe is that trying to dictate a onesize-fits-all governance model for public companies does not make 

sense. I do recognize that there are models that are so extreme 

that they cause problems. 

Mr. MEEKS. These dual-class stock structures you are saying in 

some places they may fit and in some places they may not? Is that 

what you are saying? 

Mr. CLAYTON. I think, yes, to the extent you take a dual-class 

structure to an extreme—let me give you an example. Somebody 

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23 

nomic stake in the game. As a person who looks at investments, 

that kind of outcome troubles me. Does it trouble me to say that 

a founding group of people who want to take their company public 

but don’t want to be subject to the vagaries of short-termism 

should have some control over it? That absolutely resonates with 

me, as well. 

Mr. MEEKS. Thank you. That is clear. 

Let me also ask you, Commissioner Clayton, and I have asked 

you this before, about the SEC’s intentions to go beyond merely 

monitoring its board diversity rule and to actually improving the 

board diversity rule. Investors and the SEC’s advisory committee 

on small and emerging companies have found the current board diversity rule to be unhelpful in determining the race, gender, and 

ethnicity of board directors. 

In April, your director of corporate finance mentioned to me that 

the board diversity rule is back on the SEC’s rulemaking agenda. 

Is this the case? After monitoring compliance with the board diversity rule for some months, have you come to a conclusion on whether or not the rule should be enhanced so that investors could have 

more complete information on the composition of their boards? 

Mr. CLAYTON. Yes, it is the case. The dialog that Director 

Hinman and his colleagues have had with companies around this, 

two of the issues that you raised has, I would say, raised some additional considerations about what companies think is appropriate 

and what the individual directors think is the appropriate type of 

disclosure. But I expect that we are going to move forward in some 

form. I don’t want to—I never want to overpromise—but some form 

with this rule. It is on our rulemaking agenda, and we are going 

to do something. 

Mr. MEEKS. Thank you. 

Chairman HENSARLING. The time of the gentleman has expired. 

The Chair now recognizes the gentleman from North Carolina, Mr. 

Pittenger. 

Mr. PITTENGER. Thank you, Mr. Chairman. Chairman Clayton, 

thanks for being with us today. I sure appreciate your hard work 

at the SEC over this year, I really commend you, as well, for your 

regulation in the best interest for broker-dealers, and thanks for 

seeing that through. I think it will be clearly important to protect 

investors and preserve their choices in the future. 

Chairman Clayton, tell me your impressions of FIMSAC, the 

Fixed Income Market Structure Advisory Committee, and after 6 

months and its first meeting, are you satisfied with where they are 

headed and what is the focus of their agenda moving forward? 

Mr. CLAYTON. Look, it is early days. But if you ask me to give 

them a grade, I give them an A. This is a group of people who are 

giving up their time—it is a very diverse group of people in terms 

of perspectives, participation in the market. We have people who 

are in the public sector. 

I won’t go into all of that, but they are looking at how the fixedincome market is evolving, and the fixed-income market is evolving 

toward electronification. Products are changing, and they are trying to come up with recommendations that make sense to make the 

market better, including around trading and transparency. We are 

going to benefit from their work. 

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Mr. PITTENGER. At the end of the day, what will be the best outcome? What do you think can be achieved as a result of their 

input? 

Mr. CLAYTON. Adding liquidity to the market. People understanding where there may not be the liquidity that they think 

there is. Making sure that trading is efficient. 

Mr. PITTENGER. As it relates to corporate bond transactions, the 

block trades, do you intend to move forward with FIMSAC’s advisory board recommendations? 

Mr. CLAYTON. That is a recommendation that has to go to FINRA 

in the first place, but I am encouraging FINRA to take that recommendation very seriously. 

Mr. PITTENGER. On another point, what legislative action do you 

think would be most helpful to support capital raising by new and 

small businesses? 

Mr. CLAYTON. Most helpful for small businesses? 

Mr. PITTENGER. New and small, sure. 

Mr. CLAYTON. Here is the conundrum for new and small businesses in terms of raising capital. Raising capital from a single 

source or several sources is not that costly, relatively. When you 

try to raise capital as a small business from multiple sources, the 

transactions costs are high. What we are looking at is ways to 

bring those transactions costs down without hurting investor protection. That is what we are trying to do. 

Mr. PITTENGER. Yes, sir. We certainly see the impediments have 

been there in the past, and any efforts that can be made there to 

allow greater capital investment would be— 

Mr. CLAYTON. I think modernizing the definition of accredited investor is one of those steps, to be clear. 

Mr. PITTENGER. Thank you. Would you also speak to what the 

SEC is doing to ensure that small businesses remain the backbone 

of our economy? But what do you foresee in terms of your role to 

ensure that small businesses have the central role in the backbone? 

Mr. CLAYTON. Small businesses are so important to our economy. 

We talked about capital raising for small businesses and access to 

capital, and the SEC has a role in that, just as our banking regulators and other regulators do, because they get capital in other 

ways. 

I am hopeful that the way we are approaching the covered funds 

issue in Volcker will free up some capital for small businesses, particularly in areas of the country where there is not a large venture 

capital community. That is one of the things I am hopeful for. 

Another thing for small businesses is to continue that path from 

being a small business—some small businesses just stay small 

businesses and that is a very important part of our economy. But 

keeping that path from small businesses to become a bit larger, a 

bit larger, and having access to capital throughout the lifecycle, 

that is an important part of our job. 

Mr. PITTENGER. You have seen in the past decade there has been 

a real limit and restriction in terms of the emergence of small business. Of course that in itself to me has been the biggest concern 

that I have had on the ongoing growth of our economy, because 

without the infusion of the needed capital, the access to credit, and 

the ability for small businesses to emerge, our economy floundered. 

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That was my gravest concern, is what would happen in the future 

long-term if this wasn’t addressed. 

Mr. CLAYTON. Can I add to that? 

Mr. PITTENGER. Yes, sir. 

Mr. CLAYTON. Just as a citizen, the connection between growing 

businesses and small businesses should not be lost. Lots of businesses that move from small, medium size to large drive the creation of small businesses. 

Mr. PITTENGER. Yes, sir. 

Mr. CLAYTON. We need to continue both of those things. 

Mr. PITTENGER. Thank you. My time has expired. 

Chairman HENSARLING. The time of the gentleman has expired. 

The Chair now recognizes the gentleman from Colorado, Mr. 

Perlmutter. 

Mr. PERLMUTTER. Mr. Chairman, thanks for being here. We look 

forward to your visit to Colorado in a couple weeks. 

I have three areas I want to talk to you about, marijuana, 

cybersecurity, and cryptocurrencies. I will start with marijuana. 

We have the Controlled Substances Act, which is at odds with now 

47 States and the District of Columbia that have some level of 

marijuana use, whether it is cannabis oil for seizures, medical 

marijuana, or fully legalized commercial sale. 

Canada, a couple days ago just legalized marijuana, and we were 

talking earlier about IPOs and where have all the IPOs gone. Many 

of them have gone, for a variety of reasons, to the Canadian exchanges. We know American marijuana businesses have gone public by holding IPOs on the Canadian securities exchange, the Toronto exchange, and the TSX exchange. 

I am curious, sir, whether you have seen any effort on our exchanges, either for marijuana businesses, direct marijuana businesses, or the ancillary businesses to marijuana, whether you have 

had any issues from an enforcement point of view or from a regulatory point of view in dealing with businesses here in the United 

States that publicly trade and are related to the marijuana business? 

Mr. CLAYTON. Nothing specific that comes to mind. I think what 

you said, are we seeing impediments? 

Mr. PERLMUTTER. Yes. Have you had any cases where you as a 

regulator or an enforcer of the law have had to say you can’t take 

this company public, it violates the Controlled Substances Act? 

That would be one question. Another question is, if it is a company 

that the primary part of their business is to supply electric lighting 

or nursery things to marijuana grow operations, is that something 

you would require as part of a disclosure? 

Mr. CLAYTON. Let’s go back to the touchstone, which is materiality. If there is something material to investors in making the investment decision in connection with, for example, an IPO—and to 

use the industry you are talking about—is regulatory uncertainty 

or regulatory—likelihood of additional regulatory developments, 

something that should be disclosed to investors. My position—I 

have to be careful about any specific type of thing—but, yes, that 

is the type of disclosure you would expect to see in an industry subject to regulation and particularly an industry that is in flux. 

mcarroll on FSR431 with DISTILLER

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Mr. PERLMUTTER. Has it come to your attention whether there 

has been an impediment, to use your word, or some limitation to 

companies that may want to go public related to a marijuana business or in supplying the marijuana businesses? 

Mr. CLAYTON. No, I think—would an investor take into account 

the regulatory situation and whether they are going to invest or 

not? Would they pay less if there is regulatory uncertainty? That 

is possible. 

Mr. PERLMUTTER. I am asking a speculative question. I guess I 

will just ask it more directly. Have you personally run into any 

issues concerning the public offering of a marijuana business? 

Mr. CLAYTON. Not that I recall, no. 

Mr. PERLMUTTER. All right. Let’s just broaden it now. Forget 

about marijuana. Is there any competition between the Canadian 

exchanges and the U.S. exchanges? Has that been where some of 

these IPOs have gone that the Chairman was concerned about? 

Mr. CLAYTON. There is—to be clear—there is competition now 

around the world for listings. Where are you going to raise capital 

and where are you going to list your securities is a competitive 

business now. I don’t know, but I would expect there would be competitive pressures in that industry. 

Mr. PERLMUTTER. In your position, do you take a look at the limitations that say Canada may place on its public offerings versus 

what the U.S. does versus an Australian exchange? 

Mr. CLAYTON. I do look at those, and it is a competitive question. 

But there is also—I am going to go in a direction that is slightly 

different. The investor protection regimes in other countries can be 

substantially different from what they are here, and I think a lot 

of times our investors look at if it is traded on XYZ Exchange and 

they think the investor protection is the same as if it is traded on 

one of our exchanges, and often it is not. 

Mr. PERLMUTTER. Thank you. I yield back. 

Chairman HENSARLING. The time of the gentleman has expired. 

The Chair now recognizes the gentleman from Illinois, Mr. 

Hultgren. 

Mr. HULTGREN. Thank you, Chairman. Chairman Clayton, thank 

you so much for being here. I really do appreciate your work. 

I want to begin by briefly thanking you for proposing a rule for 

independence with respect to certain loans or debtor-creditor relationships. As participation in the capital markets has expanded 

and as technology has changed business models, the opportunity to 

update regulations to reflect these changes is essential. I want to 

thank you for your movement on the loan rule and your willingness 

to provide clarification. Thank you so much for that. We look forward to working with you on that, as well. 

CFTC Chairman Giancarlo has testified before the House that 

we have, and I quote, he said, ‘‘We have some anecdotal information that shows that during the recent market volatility the supplemental leverage ratio impacted larger market makers’ ability to 

take on certain positions, thus exacerbating market volatility. The 

SLR is not specifically mandated in Title VII of Dodd-Frank and 

it has had the opposite effect intended, pushing trades away from 

central clearing,’’ end quote. 

mcarroll on FSR431 with DISTILLER

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The Treasury Department’s October 2017 report on capital markets also acknowledged the issue. I wonder, do you share similar 

concerns for the equities options market? Have you shared these 

concerns about options market liquidity with banking regulators, 

given that they have rulemaking authority for the risk and leverage-based capital rules? 

Mr. CLAYTON. The issue that you bring up is an important one. 

Our cash markets, the stock market, as is familiar to American investors, is actually connected to the options market. People who 

provide liquidity in our cash market use the options markets as 

part of their business. To the extent that liquidity drives up in the 

options market, it can cause a knock-on effect into the cash market. 

This issue has been raised. I know that my fellow Federal financial regulators are aware of it, and I think we should continue to 

look at it. 

Mr. HULTGREN. Great. Thanks. I am sure you heard, but the 

Committee unanimously reported legislation just last week that 

would direct our banking regulators to address the issue. Again, it 

was bipartisan, worked through and got unanimous support. Again, 

thank you, and just would encourage the SEC to continue to work 

with bank regulators, as well, on that. 

I sent a letter last week to you raising concerns with FINRA rule 

4210. In short, I am concerned that the margin requirements will 

push small to medium-sized dealers out of trading covered securities because of the competitive advantages to commercial banks 

and similar intermediaries that are not FINRA members. This is 

something we corresponded about last year, as well. I appreciate 

you providing a delay in the compliance date to spring of 2019. 

However, I am continuing to hear serious concerns about the 

unlevel playing field that this would create. I wanted to ask, in 

general, do you believe FINRA has the authority to regulate credit 

markets? It seems to be what is happening with the new margin 

requirements on certain mortgage transactions covered under 4210. 

Then also, will the Commission consider changes to the rule or 

working more closely with the Fed to address unlevel playing fields 

between FINRA members and non-FINRA members? 

Mr. CLAYTON. The last part of your question is the part I can 

give a direct answer to, which is, yes, I think we should. If there 

is an asymmetry in the costs of providing a service to clients, depending on whether you are in a bank or you are a standalone 

broker-dealer, we need to look at that. 

Your other question, I do think FINRA has the authority to regulate broker-dealer conduct. To the extent margin requirements go 

into that, knock-on effects, et cetera, are a larger debate, but I will 

leave it at that. 

Mr. HULTGREN. OK, thank you. In general, as my time is running down, I am interested in your views about the independence 

of the Financial Accounting Standards Board. It seems that the 

standard-setting body has drifted beyond the focus of the Commission and its staff in recent years. 

I wonder, do you believe the SEC is exercising sufficient oversight over the FASB to ensure that accounting standards meet the 

needs of investors in the financial market? Is FASB conducting a 

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ards to make sure that there would be no detrimental impact on 

financial markets? For example, is a quantitative cost-benefit analysis of the standards conducted? 

Mr. CLAYTON. I believe that high-quality financial statements— 

it is a combination of accounting standards and auditing standards 

that we have in this country—have been fundamental to the great 

capital markets that we have. 

It is extremely important to me, it is extremely important to Wes 

Bricker, the head of the Office of the Chief Accountant, our Chief 

Accountant at the SEC. This is a focus not only inside the United 

States, but as U.S. investors have greater and greater exposure to 

non-U.S. companies, ensuring that those financial statements and 

those audits are on a level with ours. We are participating both nationally and internationally in that debate. 

Mr. HULTGREN. Thanks, Chairman. I yield back. 

Chairman HENSARLING. The time of the gentleman has expired. 

The Chair now recognizes the gentleman from Illinois, Mr. Foster. 

Mr. FOSTER. Thank you, Chairman Clayton for being here. When 

we were discussing, prior to the start of your testimony, we discussed our shared enthusiasm for getting the consolidated audit 

trail implemented quickly and effectively. 

I have a searing memory of, roughly 8 years ago in this room. 

Four days after the flash crash, we had testimony from the CFTC, 

which described that the evening after the flash crash they had 30 

people in a room looking over all the trade records and knowing exactly who did what when. 

On the other hand, 4 days after the flash crash, the SEC was 

still in the process of collecting the data, which to my mind made 

something like the consolidated audit trail an emergency. Here we 

are 8 years later, the consolidated audit trail, as you note in your 

testimony, was supposed to be at least initially operating in November 2017, and obviously that deadline was blown. 

I was just wondering if you could describe where you think this 

is going and what you think Congress can expect as intermediateterm milestones in getting this thing operating as I think we both 

believe it should? 

Mr. CLAYTON. Your question has embedded in it exactly what we 

have been trying to do since it became readily apparent that this 

was not going to be delivered on time or on spec, which is to require a work plan with milestones and goals. We now have a draft 

work plan from the SROs in front of us. It is long overdue. But we 

are now making progress with milestones. 

Mr. FOSTER. Will you be able to share that work plan with Congress? Or at least a high-level summary of it in a memo? 

Mr. CLAYTON. Yes, I think we can. 

Mr. FOSTER. Milestones at least. 

Mr. CLAYTON. I think we can find a way—look, I never like to 

answer a legal question without consulting. That is a bad habit I 

have—or a good habit—but I can find a way to give you a sense 

of the milestones. 

Mr. FOSTER. Yes, milestones that Congress can track, so that we 

know whether we are just going to have another 8 years of little 

action. 

Mr. CLAYTON. I have no problem with that kind of oversight. 

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Mr. FOSTER. OK. One of the trickiest parts of this is the beneficial owner behind each trade in the consolidated audit trail. From 

your testimony, you have had a lot of internal discussions about exactly what that should consist of and how it gets implemented. Can 

you describe your thinking on that? Particularly in view of the fact 

that a lot of the issues here are now international that you have 

correlated markets across the world and a lot of manipulation that 

you are worried about can happen internationally. 

Mr. CLAYTON. Yes. We are talking about the two different functions of an audit trail. Going to the trading and the flash crash, 

having order types and the types of information that is contemplated by the consolidated audit trail is exactly what you would 

want from a market integrity, surveillance, functioning point of 

view. 

When you turn to bad behavior and the ability to get at bad behavior, whether it is insider trading or manipulation and what you 

bring up is, are there things going on in some market outside of 

our purview that, when you connect them with things here, they 

revealed behavior that is bad when it would otherwise look fine? 

I think that is what you are— 

Mr. FOSTER. That is one of the often cited dangers of the international markets we have. 

Mr. CLAYTON. Yes, and the way we conduct this today is we see 

something that we don’t like and then we inquire to get further information on who is behind those trades. The consolidated audit 

trail would make that process easier. 

Mr. FOSTER. What is the status of international discussions, getting comparable information—well, are there comparable efforts 

fully internationally here? Are there big holes in that international 

cooperation that you would like to see patched? How do you see the 

international aspects of this going? 

Mr. CLAYTON. International cooperation—here is my sense, no 

study, but my sense, a little over a year into the job, is international cooperation around what we will call manipulative or insider trading has increased significantly. 

I will tell you that the legislation in Europe and here, it is—I 

have no problem with it—around information protection, individual 

information protection, GDPR in the E.U. and what we do here, 

getting through that in terms of cooperation around enforcement 

and surveillance is a task before us. 

Mr. FOSTER. All right. Thank you, and my time is up. 

Chairman HENSARLING. The gentleman yields back. The Chair 

wishes to inform members there are two votes pending on the floor. 

I will yield to one more member, and then we will recess and reconvene at the conclusion of floor votes. 

The Chair now recognizes the gentleman from California, Mr. 

Royce, Chairman of the House Foreign Affairs Committee. 

Mr. ROYCE. Thank you, Mr. Chairman. When we are looking at 

the proxy advisory industry, we have a stranglehold there, from my 

standpoint, we have two firms holding 97 percent of the market. 

What do you think the main causes of this lack of competition are? 

Is it good for the voting process? Is there anything the SEC can do 

in order to help jumpstart some competition in this industry? 

mcarroll on FSR431 with DISTILLER

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Mr. CLAYTON. Let me say this, why only two firms? Just my 

knowledge of economics, economies of scale. The core function of 

those firms is aggregating data, crunching and producing data reports. You can see economies of scale coming to that. 

Mr. ROYCE. I can see that it could lead to that outcome, but I 

do not know that it is in investors’ interests not to have wider competition in the system. I do wonder if there are things we could do 

that might make it more likely that it would be a more competitive 

environment. 

Mr. CLAYTON. The role that proxy advisory firms play is something we are looking at. 

Mr. ROYCE. Yes. That is what I would suggest. I will ask you 

some other questions, as well, but just to have that on the table 

for your purview is important. 

Mr. CLAYTON. They have a very important role in our regulatory 

ecosystem, and, therefore, we have to look at them. 

Mr. ROYCE. Very good. Here is another question, Chairman, that 

I would raise to you. Earlier this year, this committee here passed 

legislation that would reverse a previous SEC rule requiring that 

certain money market funds float the NAV. Now, I certainly remember when the reserve fund in the industry broke the buck back 

in 2008. I remember the massive backstop that the U.S. taxpayers 

provided to restart the process for the entire market. This is not 

the only thing that caused that meltdown, but it was a factor after 

the overleverage of the GSEs and the overleverage in the investment banks. 

The fact is that the value of the underlying assets of these products fluctuate. They go up and down. As I said in opposition to the 

bill at the time, if we learned anything from the financial crisis, it 

should be that price should reflect risk. 

Six months have passed, yet the bill still seems to have some life. 

Do you stand by your comments from last year? Let me just ask 

you, has anything changed in your estimation from the comments 

that you made on this subject? 

Mr. CLAYTON. No. 

Mr. ROYCE. OK. That is good news, as far as I am concerned. 

Chairman, let me ask you, also—I Chair the Foreign Affairs Committee here—I have witnessed firsthand that we have state-sponsored agents now, actors that are looking to do our companies and 

our country harm through cyberattacks. The Commission clearly 

recognizes the problem with the updated interpretive guidance you 

have provided. We thank you for that. 

Undoubtedly, companies have a duty to disclose when a material 

cyber security event has occurred. But what more should they be 

telling shareholders about cybersecurity risks? I think that is something that has to go into the equation. Have you noticed an uptick 

in the number of companies disclosing these risks or disclosing the 

attacks? 

Mr. CLAYTON. I have, in my time focusing on this, I have noticed 

what I would consider to be—I will just say the word ‘‘improvement’’ in disclosure about the risk profile of companies and the 

types of risks they face from cyber intrusions. I think we are starting to see what I would say is more measured, and incident disclosure is more thoughtful. I hope our guidance is helping companies 

mcarroll on FSR431 with DISTILLER

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with that. I want to continue to work with companies and the investing public on how we should be approaching this issue. 

Mr. ROYCE. My time has expired. Thank you, Chairman. 

Chairman HENSARLING. The time of the gentleman has expired. 

Pending conclusion of two votes on the floor, this committee stands 

in recess. 

[Recess.] 

Chairman HENSARLING. The committee will come to order. The 

Chair now recognizes the gentleman from Pennsylvania, Mr. 

Rothfus. 

Mr. ROTHFUS. Thank you, Mr. Chairman. Welcome, Chairman 

Clayton. Thank you for taking the pause and the recess. Before I 

begin, I want to take a moment to address some of the comments 

that Congressman Royce made prior to the recess. 

From my perspective, the problems caused by the SEC’s rule 

changes respecting money markets remain an issue, because the 

problems they caused are still apparent. This rule discriminated 

against municipal and corporate debt and, in doing so, prompted 

the dislocation of a trillion dollars. This led to increased borrowing 

costs and caused an outcry in the municipal finance world. 

That is why my bipartisan legislation attracted broad support 

from over 70 co-sponsors, many of whom sit on this committee, and 

the endorsement of over 300 National, State, and local organizations and public leaders. Nothing in my bill would undo the helpful 

2010 SEC reforms that improved liquidity, increased credit quality, 

and shortened maturities. What it would do is restore the level 

playing field between prime, tax-exempt, and government funds. 

This issue remains relevant and will continue to be relevant 

until the problem is fixed. I understand the Senate is actually 

going to be taking another look at this, this week. 

But with that, I wanted to talk for a moment about your testimony. As you discussed in your testimony, there are still significant barriers that prevent companies from going public and staying 

public. The JOBS Act and successor legislation helped address 

some of these issues, but clearly there is more work that needs to 

be done. 

I have a bill that we will mark up later day that would extend 

certain disclosure exemptions for emerging growth companies, or 

EGCs, that would remain EGC, but for the current 5-year limit. As 

you know, EGCs accounted for more than 90 percent of all IPOs 

over the last 2 years. Can you discuss some of the ways that we 

can help companies go public and stay public? 

Mr. CLAYTON. Yes. Let me give you a general response to that 

question, which is, I do think the JOBS Act and the creation of the 

EGC concept for scaled disclosure and an on-ramp to being a public 

company was and remains a very good idea. I would love to see 

that on-ramp be modernized to reflect the markets we have today. 

Specifically, are the thresholds where you have the benefit of 

being an EGC set in the appropriate place or should they reflect 

the markets of today and our experience with the JOBS Act? I 

think we should look at those thresholds. Happy to work with you 

and other members of this committee on setting them in the appropriate place. 

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32 

Another thing that I just want to make sure I comment on, trading. Part of the attraction of going public is trading. To the extent 

that we can facilitate better trading, more liquid trading in our 

small- and medium-sized companies, I think we should be looking 

to do so. 

Mr. ROTHFUS. Chairman Hensarling touched a little bit on Sarbanes-Oxley with his opening round. This legislation was enacted 

15 years ago in response to Enron and WorldCom and the scandals 

that they had. In your opinion, has Sarbanes-Oxley been effective? 

Mr. CLAYTON. It is interesting. A sweeping piece of legislation— 

to come to a single statement about any sweeping piece of legislation from a markets point of view is very difficult. There are aspects of Sarbanes-Oxley that I think investors got a significant 

bang for the buck. Independent audit committees, the focus on 

high-quality financial statements, that is a big bang for the buck. 

Some other things, good, but not as significant as those. 

Mr. ROTHFUS. What components of Sarbanes-Oxley represent the 

biggest cost and/or compliance challenges for companies? 

Mr. CLAYTON. I do think that from a—let me give you an example. We are going to be looking at 404, OK? 404 applied to a large 

company and 404 applied to a smaller company, the relative burden on the smaller company has been higher. I have seen improvements in the area of application of 404. But I do think that we 

should look at that relative cost to the size of smaller companies 

and intend to do so. 

Mr. ROTHFUS. What is the timeframe for your review of 404? It 

is already started? 

Mr. CLAYTON. Our staff is looking at 404 now. We are going to 

be discussing it—at least plans for discussion—at next Thursday’s 

open meeting. 

Mr. ROTHFUS. I yield back. 

Chairman HENSARLING. The time of the gentleman has expired. 

The Chair now recognizes the gentleman from Maine, Mr. Poliquin. 

Mr. POLIQUIN. Thank you, Mr. Chairman, very much. 

Chairman Clayton, I am glad you could find me in this room. 

There are so many other people here now. But I am sure—this is 

only your second time before us, but I want to let you know, as Mr. 

Chairman knows, that he always saves the toughest questions for 

the end, but I am sure you and I can get through this, so I appreciate very much you being here. 

I noticed that you folks over at the SEC have finalized Rule 30e– 

3, and I am very grateful, sir, that you and I had a back-and-forth 

many times on this, and you are going to be looking out for the interests of small savers and investors throughout the State of Maine 

and throughout rural America. I will be closely following this as 

the SEC implements its rule. But thank you very much for listening to my concerns. 

You folks are the primary regulator, Mr. Clayton, for non-bank 

financial institutions like pension advisers. I worry a lot about our 

small businesses and our small savers and investors up in the 

State of Maine. On FSOC, you are one of 10 votes, and you are the 

individual as the regulator that has the most influence, I would believe, on FSOC because your space is the asset manager space 

when it comes to FSOC. 

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33 

Now, what I am concerned about, Mr. Clayton, is that when a 

non-bank financial institution like a pension adviser or mutual 

fund company is designated FSOC or if it would be designated 

FSOC, we all know the studies that regs costs will go up, rates of 

return will go down. I think Doug Holtz-Eakin concluded that 

something like a 25 percent reduction over time is the result of 

being designated in a SIFI. 

What drives me batty about this, sir, is that if you are in the 

asset management community, the assets that you are running, the 

assets that you have under management are not in your balance 

sheet. You are an agent for the customer. There is no systemic risk 

to the economy if something goes wrong, because it means that if 

my performance is better than yours, your clients will go from you 

to me and life goes on. 

All I am asking you, sir, is to take a hard look at Ross-Delaney 

that passed this Congress on the floor, a big bipartisan vote, and 

obviously out of the Committee. It establishes transparency and 

clear guidelines such that a fund company or an asset manager, if 

they are concerned about being designated a SIFI and going 

through these additional regulations and costs, and the investors 

get hurt, because of those additional costs that are unnecessary, 

that there is an off-ramp, there is a set of guidelines that says, if 

I do this, I can get underneath this regulatory regime that is unnecessary. 

Can I get a commitment from you today, Mr. Clayton, that you 

are going to be looking really hard making sure that there is transparency and clear guidelines when it comes to non-bank financial 

institutions being designated or not as SIFIs? 

Mr. CLAYTON. I am not going to commit my other members of 

FSOC to a particular process— 

Mr. POLIQUIN. No, but you have the most influence when it 

comes to this space on FSOC, I would argue. 

Mr. CLAYTON. What I can say is I understand the comments you 

are making, I understand the concerns, and I am certain that those 

concerns and comments will be discussed by that group. 

Mr. POLIQUIN. I would encourage you to discuss them in the most 

energetic and passionate way on behalf of those that should not be 

designated SIFIs. Thank you, sir. 

Moving on to another issue, the last time the SEC updated its 

rules on promotion and advertisement when it comes to asset managers was—I think it was 1961. In 1961, Roger and I were just 

kids. I don’t think, if I am not mistaken, the Internet and social 

media hadn’t even been invented yet. 

Will you take a look, sir, and commit today to the people listening that you will commit to taking another look at social media and 

the use of the Internet for asset managers to do what other companies do in this world, which is promote what they are selling? 

Mr. CLAYTON. We are, and when we rolled out 30e–3, we also 

rolled out investor experience questions. We are looking at enhancing our communications with investors, and in particular, to make 

sure that investor communications reflect the communication technologies of today. 

Mr. POLIQUIN. I hear that as a lean yes. Thank you very much, 

Mr. Clayton. 

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Last, in my remaining time here, Rule 14a–8, dealing with 

shareholder proposals, last time you were here, sir, we discussed 

this a little bit. Look, every shareholder has the opportunity to 

weigh in with management when it comes to how the company is 

being run, products offered and so forth and so on. 

But a $2,000 threshold, owning that for 1 year gives you an opportunity to express your views, I understand that. But it also 

drives up the costs, drives up what Mr. Hensarling said a short 

time ago about the hassles about going public, and I worry about 

every other small investor in Maine and in America that wants the 

opportunity to own part of America. Are you going to be looking at 

14a–8, also, sir? 

Mr. CLAYTON. I want to look at the whole proxy process, including 14a–8. 

Mr. POLIQUIN. Thank you for that commitment, Mr. Chairman. 

Appreciate it. 

Chairman HENSARLING. The time of the gentleman has expired. 

The Chair now recognizes the gentleman from Texas, Mr. Williams. 

Mr. WILLIAMS. Thank you, Mr. Chairman. The last time you 

were here before this committee, you and I had a productive discussion about retail and affinity fraud. You mentioned that it was important to think creatively about ways that we can structure our 

behavior so that it is more difficult to commit fraud. 

I am encouraged to hear that you have turned your attention to 

Main Street businesses that play such a critical role in our economy and in our local communities. My question, Mr. Chairman, 

since your last visit, can you provide any updates on retail fraud 

or any related tasks that your teams may be undertaking to target 

and prevent future fraud? 

Mr. CLAYTON. We did form a Retail Fraud Strategy Task Force. 

I shouldn’t say we. Our Division of Enforcement did. I appreciate 

that they have done that to focus on this. A group of people dedicated to rooting out retail fraud. 

More importantly, there are a number of Ponzi schemes where 

we have identified them, brought asset freezes, and brought them 

to a halt, I would like to think as quickly as we could because the 

longer they go on, the more money that goes away, and the less 

money we can get back for investors. That has been a focus of ours. 

The ICO space—let me preface this by saying like I do, the distributed ledger technology and blockchain technology, whatever you 

want to call it, has promise. But the ICO space has a great deal 

of retail fraud. I am very pleased that our Enforcement Division 

has pivoted to addressing that issue. 

Mr. WILLIAMS. Thank you. Now, you yourself have rightly recognized that a vibrant IPO market allows Main Street investors to 

be able to participate in crucial growth process of growing. Can you 

touch on the role of the small business capital formation advocate 

office and what steps it will take to allow for growth in Main Street 

investor participation? 

Mr. CLAYTON. Thanks for that question. Obviously, that office is 

new and will be—as any new office, it will find its way. It has some 

directions from Congress. What I really want, and when I am talking to candidates for that, I want somebody who when we are makmcarroll on FSR431 with DISTILLER

35 

ing rules or a policy, says, ‘‘Hey, this is how this is going to affect 

the small business, so think about it when you do this.’’ 

In particular, ‘‘You know what? This is too costly to apply to a 

small business.’’ Or, ‘‘This won’t help a small business. Here is how 

we could adjust the rule without adversely affecting investor protection or transparency.’’ It will be good to have somebody in the 

building where that is their job. 

Mr. WILLIAMS. Last, you have a unique vantage point in your 

current role, one that requires you to work across several industries and countless stakeholders. If possible, can you give this committee your personal assessment on the health of the economy and 

what we should be concerned about or excited about? 

Mr. CLAYTON. Health of the economy, that is out of my lane. 

Mr. WILLIAMS. But it is good, I will tell you that. 

Mr. CLAYTON. It is good. 

Our job is to make sure that the markets function as well as they 

can to support our economy. There is always room for improvement 

in that. We come to work—not just me, we come to work every day 

looking to improve the functioning of our markets so the economy 

can be as good as it possibly can be. 

Mr. WILLIAMS. Thank you. I have some time left. I yield back to 

the chairman. 

Chairman HENSARLING. The gentleman yields back. The Chair 

now recognizes the gentleman from North Carolina, Mr. Budd. 

Mr. BUDD. Thank you, Mr. Chairman and also Chairman Clayton. We are fortunate to have you at the helm. I guess that makes 

you captain of the ship, as we heard earlier, so we appreciate you 

being here and being our captain. 

I wanted to get your views on some recent legislation that the 

Committee approved that would raise thresholds for shareholder 

resubmissions. It seems pretty straightforward in the simple proposal for the SEC to enact, and I think Mr. Duffy’s legislation offers a much more reasonable threshold that allows shareholders to 

have a voice, while not burdening public companies with proposals 

supported by a very, very small group of shareholders. While I 

strongly support this legislation moving forward, what can the SEC 

do to make these changes in the meantime? 

Mr. CLAYTON. We can look at the proxy process, and I intend to 

look at that as part of an overall assessment of the proxy process. 

I think, if you don’t mind, I will take a minute. 

Mr. BUDD. Please do. 

Mr. CLAYTON. The ordinary investor, the retail investor, the 

Main Street investor, the people we think about, I think they 

should understand that corporate governance in America has 

changed substantially in the last decade as a result of various 

changes and that the ability of shareholders to directly influence 

the actions of management has increased. 

Now, that has benefits. But it has been a change. We should be 

looking at that change and how it has changed the way corporations behave and, I think, communicate with American investors on 

what that change means. 

Mr. BUDD. You mentioned looking at the proxy process. What 

timeline would you anticipate for the SEC looking at that process? 

mcarroll on FSR431 with DISTILLER

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Mr. CLAYTON. We had an open comment period in the past. I am 

contemplating opening that again to get updates on this issue and 

other issues that are around the proxy process. 

Mr. BUDD. Thank you. 

Mr. CLAYTON. Including the plumbing. Do we have the right 

plumbing in light of—with the theme of modernization, do we have 

the right plumbing for the proxy process? 

Mr. BUDD. Very good questions. I look forward to hearing the results on that. 

Further, I want to switch over to virtual currencies for a moment, and it tag teams a little bit with Mr. Williams, my colleague, 

about investor fraud. Can you just tell me what criteria the SEC 

is using to determine which token projects should be targeted for 

enforcement actions? Then further, is that criteria focused on 

promises made by the developers of those token projects or is it focused on the expectations of purchasers, irrespective of any promises or marketing materials made by the developers of these 

projects, or some combination? 

Mr. CLAYTON. Let me say what I am not going to do. I am not 

going to discuss allocations of enforcement resources to one particular type of bad activity versus another. If you are behaving 

badly in this market, we don’t want you to do that. 

In terms of what I would like people in this market to understand is that there is a way to raise capital that is compliant with 

the law. I want people in this space to recognize that and do that. 

If after a year of this dialog that we have been having people aren’t 

moving to that, I have a problem with that. 

Mr. BUDD. Noted. Thank you for your time, Mr. Chairman. 

Chairman, I yield back. 

Chairman HENSARLING. The gentleman yields back. The Chair 

now recognizes the gentlelady from New York, Ms. Tenney. 

Ms. TENNEY. Thank you, Mr. Chairman. Thank you, sir. 

I am always last in line, so hopefully I am not going to be too 

repetitive. I just have a couple of quick ideas. Obviously, in my region there has been this vilification of anyone who operates a socalled corporation or entity that seeks to look like a corporation, 

whether it is an S corp, a C corp, an LLC. 

But in that realm, we have had a number of issues trying to get 

into the initial public offering space, and we appreciate your efforts 

in trying to move us more to an entrepreneurial ability and providing more capital formation and chances. 

What do you think are the key steps that you are looking to take 

in addition to what you—I missed some of your testimony—what 

you may have said to getting us to get the smaller businesses and 

to assist the formation of capital and growth in an area, for example, where I am from in upstate New York, where we don’t have 

the city next to us. We have small banks. We have fintech and others. How is SEC going to impact us, your new rules on helping us 

get there with some of our new businesses? 

Mr. CLAYTON. I talked before about providing a path to being a 

larger company. Let’s just stay in the smaller company space, I 

would like to see us modernize the accredited investor definition to 

make it easier for more people to participate in funding small businesses. I would like us to use technology to eliminate some of the 

mcarroll on FSR431 with DISTILLER

37 

unnecessary frictions that go into raising capital on a smaller scale. 

Those are things that we are looking at. 

In terms of availability of funds in different parts of the country 

outside of places that have a great deal of venture funding, I am 

hopeful that some of the things that we are doing in Volcker or proposed to be doing in Volcker will free some more local capital. 

Ms. TENNEY. Have you seen any of that happening yet in any of 

the initiatives you have taken? Because I know, in my prior life before I got involved in this job in Congress, I had a lot of trouble 

getting some of my entrepreneurs to find investors, and they feared 

the IPO space a little bit because of just the rules, the regulations, 

and the SEC. 

Can you identify a couple of things you are doing to simplify that 

and also if you have seen progress, if you have seen more IPOs 

coming forward in the small business space, is that something you 

have data on or something you can provide us with? Because I 

would love to know if what you are doing is actually helping. Are 

we actually moving more people into the space with data of some 

kind? 

Mr. CLAYTON. Let me say this, I think a year is too early to tell. 

One of the issues about measuring success in this space is sometimes it takes a fair amount of time. The IPO process itself, from 

the time a company thinks about a public offering until they actually achieve a float, it starts long before they contact us, and it 

takes a while. That is a long-winded way of saying, I don’t want 

to take credit for any uptick in IPOs, I don’t want to say we are 

unsuccessful. I think we are doing the right things. 

Ms. TENNEY. Yes, I believe you. I have been in the situation 

where I have taken my clients to other areas to try to find ways 

of getting them resources and getting them funding. I think that 

now it looks like we are in a better space than we were. I just was 

wondering if there is any demonstrable change. 

Mr. CLAYTON. I think that we are in a better space than we 

were. It feels like we are in a better space. The activity that I am 

seeing, I like. Do I want to say, absolutely, here is some demonstrable evidence? 

Ms. TENNEY. Next year you will have some more data for us 

when we get to that. 

Mr. CLAYTON. I hope so. 

Ms. TENNEY. I just want to jump to the whole cryptocurrency, 

bitcoin, everything, that is the excitement of the day, and what the 

SEC is doing about that. What are we going to be looking at as this 

becomes very popular and more and more investors and people are 

getting involved in the cryptocurrency? What is the SEC’s reaction? 

Maybe if you could point out one or two things in the last 30 seconds about what you are doing in that, because I am running out 

of time. 

Mr. CLAYTON. OK. In the pure cryptocurrency space, the examples that people cite are bitcoin or Ethereum. That is not in our 

direct jurisdiction, although there are issues with those crypto assets, including in the trading and what people use. 

I want to be clear, to the extent that somebody is bringing those 

assets to a regulated entity of ours, that regulated entity needs to 

go through the same KYC, AML procedures. In the same token 

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space, I think we have raised the consciousness for people to understand that these are securities, and they need to follow our rules. 

I do think this technology has a lot of promise, and it can eliminate 

costs. I would focus on that. I am sorry. 

Ms. TENNEY. Thank you. I am sorry, my time has expired. Thank 

you. 

Chairman HENSARLING. The time of the gentlelady has expired. 

The Chair now recognizes the gentleman from Minnesota, Mr. 

Ellison. 

Mr. ELLISON. Yes, thank you, sir, for joining us today, Mr. Chairman. Appreciate it. 

Last year, Congress passed a multi-trillion dollar tax cut for—as 

you are well aware—and I think the theory behind it is as reported 

in the press and by some of my colleagues was that it would spur 

investment and thereby increase hiring for working people. 

But some of the data has really come in, and according to the 

Bureau of Labor Statistics, wages for most workers, by 80 percent, 

are actually down since the tax cut passed. What are the companies doing with the windfall? I guess one of the things that the 

popular press indicates is that there has been a lot of stock 

buybacks. How do you react to that assessment? 

Mr. CLAYTON. I don’t have the data, but if what you are asking 

me, to be direct, is companies that have repatriated capital and are 

holding cash, what are they using that cash for? 

Mr. ELLISON. Yes. 

Mr. CLAYTON. To the extent they are using it for stock buybacks, 

what do I think about that? Is that— 

Mr. ELLISON. I suppose that is what I am—yes. 

Mr. CLAYTON. Stock buybacks are an efficient means to return 

capital to shareholders. They are more tax efficient than a dividend, for example. 

Mr. ELLISON. OK. 

Mr. CLAYTON. That is probably going into the judgment. 

Mr. ELLISON. That is a policy that you support? 

Mr. CLAYTON. Like I said— 

Mr. ELLISON. You think it is a legitimate way to operate in light 

of— 

Mr. CLAYTON. Here is what I think. If a company decides to do 

that, they should be telling the shareholders what they are doing 

with their money and do it in the most responsible way. 

Mr. ELLISON. OK. In the first quarter of 2018 alone, corporations 

bought back a record $178 billion in stock. According to a survey 

of major corporations, CEOs say that the stock buybacks are their 

number one use of capital. Instead of spending the money on wages 

or investment in research and development, they are going big into 

these stock buybacks, as you indicated. 

I guess my question for you is, last week, your colleague, Commissioner Jackson, called on the SEC to revisit its stock buyback 

rule, which hasn’t been revised in 15 years. Do you agree? Or how 

do you react to the suggestion that Commissioner Jackson made? 

Do you think it is a good time to open up for public comment the 

rule on stock buybacks? 

Mr. CLAYTON. I asked Mr. Jackson what he meant because I 

think our rule around stock buybacks doesn’t go to the decision of 

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whether you should do a buyback or not. In fact, it doesn’t really 

go to the—we have rules that go to the disclosure of stock 

buybacks. I don’t think he was talking about that. 

I do think disclosure of stock buybacks is important. People who 

are shareholders should know whether you are buying back stock 

or using it for other things. But our rule goes to how you actually 

effect it in the market. 

Mr. ELLISON. Given the time is wasting, I hope you will forgive 

me for cutting in. 

Mr. CLAYTON. No problem. 

Mr. ELLISON. Do you agree with Commissioner Jackson that the 

huge surge in stock buyback activity can lead to problems, particularly since the research shows that a substantial number of CEOs 

use buybacks to cash out their own shares? 

Mr. CLAYTON. What is interesting is, executives sell stock on a 

regular basis, and they have to tell us. They have to file forms 

when they are selling stock. I am not sure about a connection between stock buybacks and executive selling, but what I want to 

make clear is that activity, it has to be disclosed to the marketplace so that we can look at it to see if there is any connection. 

Mr. ELLISON. OK. Let me just tell you this. There is a report my 

office just recently drafted. I would like to share this with you and 

submit one for the record, without objection. 

Mr. HILL [presiding]. Without objection. 

Mr. ELLISON. Just so you know, in 1968, the average CEO made 

about 20 to 1, about 1980, about 34 to 1, now it is 339 to 1, but 

that hides a few facts there, Mr. Chairman. One, Mattel has nearly 

5,000 to 1. McDonald’s, 3,100 to 1, the Gap, 2,900 to 1, Walmart, 

1,100 to 1. Are you concerned by those numbers? 

Does that level of executive compensation create instability in 

the market? Isn’t at least part of our income inequality problem because of the dramatic shift in how people are compensated? 

Mr. HILL. The gentleman’s time is expired. Quickly, you can respond. 

Mr. CLAYTON. Quickly respond? I want to make sure that shareholders understand how people are being compensated and the criteria that go into making those decisions. How is the comp committee making those decisions? That is an important part of shareholder communications. 

Mr. ELLISON. Thank you, sir. 

Mr. CLAYTON. Thank you. 

Mr. HILL. The gentleman yields back. The Chairman recognizes 

himself for 5 minutes. 

Chairman Clayton, glad to have you before the Committee today. 

Thanks for your incredible stamina for being here today. We are 

glad to have your answers to all of our questions. 

I wanted to start and talk about a FINRA rule, Rule 4210, which 

I have concerns about in terms of the fairness issue between bankowned broker-dealers and nonbank-owned broker-dealers that relates to the agency’s security market and posting margin for that. 

I won’t debate with you today whether or not the SEC has the authority to impose margin requirements, thinking that perhaps the 

Reserve Act governs that. 

mcarroll on FSR431 with DISTILLER

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But would you agree that we don’t want to have public policy 

that on the face of it discriminates by organizational entity? In 

other words, in this example, bank-owned versus nonbank-owned 

broker-dealers? 

Mr. CLAYTON. I agree. 

Mr. HILL. Mr. Quarles when he was here representing the Federal Reserve, he agrees, as well. Would you be willing to work with 

the Federal Reserve to create a commonsense solution here that is 

fair to the brokerage community at large? 

Mr. CLAYTON. Yes. 

Mr. HILL. Thank you. I appreciate that. 

Also, I have introduced a bill, H.R. 6021, which is of interest also 

to the brokerage community. This goes back to my days in the industry as an independent broker-dealer and a bank broker-dealer, 

as well, as it relates to small, privately held dealers that don’t hold 

customer funds and are purely introducing brokers under the rules. 

This goes all the way back to Sarbanes-Oxley, where all brokerage firms were required to have a public accounting oversight 

board qualified auditor, no matter their size or complexity. This 

bill, and Senator Cotton has introduced a companion in the Senate, 

would permanently waive that for small, private, noncustodial 

broker-dealers, something we got waivers for along the way between 2002 and recent years. 

Is that something you think the Commission could support, 

knowing that they still fully comply with SEC rules, FINRA rules 

on audited financial statements in accordance with GAAP (generally accepted accounting principles)? Because the other thing I 

have learned in this process in the ensuing years is the number of 

qualified firms has dropped, something that I personally had not 

known until I started studying this issue. 

Mr. CLAYTON. The short answer is yes. The longer answer is I 

like the criteria that you cited in terms of who we are talking 

about, and we have actually raised this issue with the PCAOB to 

get their views. I don’t want to get ahead of them, but I expect 

their views would be that this is an area where we should question 

whether this is a necessary step. Particularly in light of the criteria 

you cited. 

Mr. HILL. Thanks for that constructive nature. This hearing, this 

committee hears testimony all the time about tailoring regulations 

for community banks. It is weekly for 8 years, at least. We don’t 

always pay attention to tailoring our rules through FINRA and 

through the Commission for our very small entrepreneurial brokerdealers, and yet the burden shift is very similar, so I appreciate 

your— 

Mr. CLAYTON. Particularly those, like you said, that don’t hold 

customer assets. 

Mr. HILL. Correct. Yes, and let’s be clear, again, just for our 

viewers, these are privately held companies that are introducing 

brokers, which means they clear all their securities through a 

clearing agent, and so they are not holding customer funds, because we are all sensitive to making sure that you oversee these 

entities in a safe and sound manner. 

mcarroll on FSR431 with DISTILLER

41 

Mr. CLAYTON. Thank you for doing that because I just want to 

make clear, because that is a distinction that is very important to 

me. 

Mr. HILL. It is. It is important to these members, but you would 

be—I don’t think in any way—what I have seen is just audit fees 

have gone from maybe $5,000 to $8,000 a year for a typical GAAP 

small introducing broker that is overseen by FINRA at your direction, and some of those have tripled as the number of compliant accounting firms drops and the complexity of doing that exam goes 

up. I am not sure the Commission is getting concomitant big safety 

and soundness gains. Thank you for that. 

Last topic I want to just introduce is one of my favorites, and 

that is how the Federal Government is trying to interpret the 

Volcker rule. The SEC has recently participated in the release of 

a Volcker 2.0. A lot of us up here found it very complex; I am not 

sure you made a big improvement there. Not you personally, but 

the collective agencies did. Are you going to be very diligent in 

looking at the comments for the Volcker rule re-proposal? 

Mr. CLAYTON. Certainly, around the commentary, certainly. I 

think this is an area where the comments are going to be illuminating. 

Mr. HILL. Thank you. I appreciate that. The chairman’s time has 

more than expired. 

I am going to now recognize the gentleman from West Virginia 

for 5 minutes, Mr. Mooney. 

Mr. MOONEY. Thank you, Mr. Chairman. Chairman Clayton, 

thank you for coming here and taking all these questions and the 

good work you are doing there. 

I wanted to make a comment and then a question. I want to add 

my appreciation for your leadership in proposing an expansive loan 

rule aperture. As private equity’s role in the capital markets has 

expanded and as technology has changed business models, the opportunity to update regulations to reflect these changes is long 

overdue. Current regulatory impediments, they deter capital formation, they limit competition and decrease efficiencies. Just thank 

you for addressing this. That is very important. 

I am from a rural area, West Virginia, and I think there is a misconception out there that investing in business startups and a lot 

of things we need in this country are for people in big cities or people with large bank accounts, but they are for people in rural 

areas, too. I would like for you to tell me the importance of capital 

formation to investments in workers in rural areas. 

Mr. CLAYTON. All I can say is, I agree with you. The availability 

of capital, whether it is through investment or through credit, is essential to starting a business. That is just all there is to it. I agree. 

Mr. MOONEY. I was at a fair about a year ago, and a young lady 

there had found a way in West Virginia to get syrup from trees. 

She started a small business to make this syrup and sell it. She 

was at a craft fair and she was showing her display there. She had 

the hardest time finding anyone to give her an initial startup loan 

to invest in this product. Went to banks, went to administrations, 

just couldn’t find anybody to do it. 

These regulations and restrictions, I think they are well intended 

by the other side, but they are hurting the people that need these 

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investment startup dollars. This is a family that had a dream in 

my district, and they can make it come true. It was a great product. I tasted it. They just couldn’t find anyone to invest. 

I just want to encourage you to continue this deregulation, get 

these impediments out of the way for Americans in rural areas, as 

well as cities, so they can have their dream of owning their own 

business come true. 

With that, Mr. Chairman, I will go ahead and yield back the balance of my time. 

Mr. HILL. The gentleman from West Virginia yields back the balance of his time. 

The gentleman from Georgia, Mr. Loudermilk, is recognized for 

5 minutes. 

Mr. LOUDERMILK. Thank you, Mr. Chairman. Looks like maybe 

I am batting cleanup here today. I will try to keep this as brief as 

possible. 

Thank you, Mr. Chairman, for being here, and taking this 

amount of time. It is very encouraging. I also want to thank you 

for your work in the best interest standard for brokers. I can tell 

you, every time I would be at home after the Department of Labor’s 

fiduciary rule, I was inundated with brokers and those advisers 

with the confusion and the difficulty that this provided them. It 

was a significant impact, and I thank you for the work that you 

have done there. 

Now, you stated that the slow pace of initial public offerings is 

a significant problem. With what I would call mind-boggling 

growth of our economy—GDP is up 3 percent, knocking at the door 

of 4 percent possibly. Wages are increasing. Consumer confidence 

is growing. Every statistic is way beyond anything that anyone 

ever anticipated we would be at 2 years ago. We are all celebrating 

that, or at least most of us are. 

Because of all that growth, it may not be clear why the slow pace 

of IPOs is a problem. Can you explain why we’re not seeing new 

initial public offerings in the light of a robust economy is a real 

concern? 

Mr. CLAYTON. We just talked about the capital being essential to 

growth. The availability of capital is strong. We have private capital markets that are as strong as they have ever been, the availability of private capital to finance growth. 

That said, it still does trouble me that our public capital markets 

are less attractive. I don’t want to do anything to impede capital. 

I don’t want to do anything to the private capital market in order 

to make the public capital market relatively better. This is a good 

thing, let’s not do anything to it. 

But broad participation in capital formation and investment in 

America is a good thing, and I want to make sure we continue to 

have broad participation, and the public capital markets are the 

most efficient way for ordinary Americans to get access to investment opportunities. 

Mr. LOUDERMILK. I do agree with you. I just think there is a confusion with a lot of folks in that. How does this interact with the 

anticipated increase of mergers and acquisitions we are expecting? 

Mr. CLAYTON. The number of companies in our public capital 

markets can be reduced for a number of reasons. People go private, 

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they merge, things like that. To the extent that pipeline isn’t being 

filled, you have fewer choices. Now, when two public companies 

merge, you have a larger— 

Mr. LOUDERMILK. Right. 

Mr. CLAYTON. You don’t lose capital in the public markets, but 

you do lose the numbers. 

Mr. LOUDERMILK. OK. Let’s move on to another topic, 

cryptocurrency, something I have been following for a while with 

an IT background. I agree that we have seen cryptocurrencies 

being used for nefarious purposes, money laundering, terrorism financing, human trafficking, drugs. 

However, I believe the underlying technology of blockchain is 

something that we should pay close attention to, and I think we 

need to divest the cryptocurrency from the underlying technology. 

I have been advocating for us to look at the blockchain technology 

as a potential technology to resolve some of our cybersecurity concerns and issues. I just wanted to get your thoughts on that. 

Mr. CLAYTON. I agree with you. 

Mr. LOUDERMILK. OK. Thank you. Mr. Chairman, I yield back. 

Mr. HILL. The gentleman from Georgia yields back. Now it is my 

pleasure to recognize my good friend from Connecticut, Mr. Himes, 

for 5 minutes. 

Mr. HIMES. Thank you, Mr. Chairman. 

Chairman Clayton, it is great to see you. Thank you for being 

here. I think I may be the last here, although you never know who 

is going to appear. But great to see you here. 

I really want to just start by commending you. I read the testimony here, and this emphasis on Main Street investors and all 

that gives them confidence. I think that is a great approach. I really appreciate your intense focus on ICOs. To me, the frenzy in that 

space feels a lot like what I remember in 1999 and 2000 around 

the Internet space, and I think there is a real opportunity for people to get hurt, and so I really appreciate your focus and aggressive 

attention to that. 

I want to bring up two topics, neither of which will surprise you, 

both of which I think are consistent with Main Street confidence, 

one indirectly, which is something I know we have talked about before, but my ongoing obsession with what I think is questionable 

behavior in the charging of fees and initial public offerings and the 

absolute perfect consistency of the 7 percent growth spread. 

The reason I care about that, maybe it is not so much Main 

Street investors, but you tout the JOBS Act, and we are working 

on Jobs 2.0, and we are talking about saving young companies $1 

million, $2 million, $3 million max in their early stages, and an 

IPO of $200 million with 7 percent growth spread, that is $14 million. We are talking about very real money that comes at a very 

sensitive time for young companies. 

Since we last talked about this, I have sent you a letter noting 

that one of your fellow Commissioners has taken an interest in 

this, and Mr. Eggers, who was before us, agreed with me that it 

didn’t feel like competitive behavior. 

Anyway, I sent you a letter and very much hope—I am not— 

again, I am not prejudging this, but I am saying there is enough 

there that we and FINRA and you need to take a look and make 

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sure that we have good, competitive market capitalism operating in 

IPO pricing. There is no question there, but— 

Mr. CLAYTON. You and I share a passion for competitive markets. 

Mr. HIMES. The letter makes a specific ask that you and FINRA 

study it. I am not going to hold you to that right now because I 

suspect you probably have just gotten the letter and are looking at 

it, but I do think it is important to young companies. 

More to, again, consistent with Main Street investors—and this 

is really about Main Street confidence. I continue to be very concerned about what I regard as the legal ambiguity and mess 

around insider trading. I continue to be troubled by the fact that 

it looks like we have inconsistent, unpredictable, fuzzy law around 

insider trading, driven largely by decisions, some of which go with 

each other and some of which don’t in the Second Circuit. 

I would like to—there actually is a question attached to this 

speech—which is I would like to just hear you for a minute or 2 

on whether you think the time is right for Congress to finally in 

statute define the crime of insider trading. 

Mr. CLAYTON. You and I have talked about this. I have talked 

about it with people who are very experienced, including judges, 

people who hear the cases. There are arguments both ways on this. 

Bringing more certainty to the space eliminates some of the behavior that troubles you that you feel is not caught. I think if I am— 

I don’t want to assume that you are—you are troubled by the fact 

that there is probably some behavior that you think should be 

sanctioned and isn’t? 

Mr. HIMES. Yes, but I am actually—in the spirit of Main Street— 

look, I am not a lawyer and I am not an expert on a lot of things, 

but I am an expert on public sentiment because that is what I do, 

and there is just a general sense out there with all the reversals 

of convictions and with all the activity in the Second Circuit in particular that we really have no idea what insider trading is, and 

somebody gets convicted and the conviction gets overturned. That 

in the aggregate is a huge source of uncertainty and therefore risk 

in the minds of individual investors who say, why should I play if 

I am at a disadvantage because I am doing this honestly? 

Mr. CLAYTON. I understand that. I am not sure that a statutory 

approach would bring any more clarity. That is my issue. I am very 

happy to discuss it, look at it, but when you look at jurisdictions 

that do have a statutory approach, I am not sure that there is any 

greater clarity regarding behavior. 

I can tell you—and, look, you know how I feel about this—I may 

be biased. When people bring me, when I was in the private sector, 

fact patterns, and would say, ‘‘Hey, what do you think about this 

activity,’’ it wasn’t very hard to say I don’t like that. 

Mr. HIMES. OK, to be continued. Thank you very much, Mr. 

Chairman. 

Chairman, I yield back the balance of my time. 

Mr. HILL. The gentleman from Connecticut yields back. The gentleman from Ohio, Mr. Davidson, is recognized for 5 minutes. 

Mr. DAVIDSON. Chairman, thank you so much for being here, and 

thanks for the work you and your team are doing at the SEC to 

make sure our capital markets stay the world’s best. I especially 

appreciate the work you are doing on ICOs, and we will spend a 

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45 

lot of time on that, hopefully, or what little time I have, with one 

sidebar. 

Earlier this year, I introduced the Due Process Restoration Act, 

earlier this Congress. It relates to the SEC’s use of administrative 

law judges. As you now know, the Supreme Court has ruled that 

this practice is unlawful, unconstitutional, and should not proceed. 

Could you give us any guidance or reaction to that decision? 

Mr. CLAYTON. No, because I haven’t read it. 

Mr. DAVIDSON. Fair point. I look forward to working with the 

SEC on how to move forward and how might our existing law or 

bill, really, fit with the path forward. 

Toward that end, our office is building what we hope to be the 

first ICO body of law in terms of clarity around the regulatory 

framework for ICOs, because I think a light-touch regulatory 

framework can do for our capital markets with ICOs what it has 

done on so many other things, provide certainty, provide clarity, 

and provide security, not just national security, but for protections 

against fraud. 

I have been concerned that the disparate set of court opinions 

might not be as coherent as we would like or, frankly, the SEC 

would like, consumers would like, and in particular, investors 

would like. If the U.S. is going to truly be a world leader in this 

critical distributed ledger technology, I think we need to get this 

regulatory certainty. 

To use an example of folks that have tried to do this, Ripple is 

just one of many digital assets that come to mind. I am aware 

there are numerous court cases regarding this company. Do you 

think it is prudent for Congress or the SEC to lead the way in 

clarifying what is a security or commodity, instead of waiting for 

the courts? 

Mr. CLAYTON. I think, as regulators of the securities market, it 

is important for us to bring clarity to those markets. I do. But I 

think we are doing that. 

We have turned to this space. We have issued guidance. The 

space is developing. But all of that guidance and our enforcement 

actions are rooted in a very well-tested approach to the raising of 

capital in the United States. I can’t be more clear about this. I am 

not going to advocate for any fundamental changes in the way we 

raise capital to accommodate the technology. Now, the technology 

can make what we do more efficient, but I am not going to change 

the rules because we have a new technology. 

Mr. DAVIDSON. Yes, fair point. The Howey test has been there, 

and I appreciate, frankly, Director Hinman last week clarifying 

that Ether is not viewed as a security. There had been some concern after some of your remarks that everything looks like it fits 

with the Howey test and— 

Mr. CLAYTON. When you are raising capital for a project— 

Mr. DAVIDSON. Right. As I think you and I agree, certainly many 

companies have essentially engaged in regulatory arbitrage and 

used white papers to raise more capital than they could through 

the existing framework. However, some companies—for securities. 

That body of law, I think you guys have taken an effective approach. 

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46 

Mr. CLAYTON. We want to help people. Look, I am not saying do 

it, then—we want to help people— 

Mr. DAVIDSON. You set up an office to be able to do that and 

equipped it with resources, so I appreciate that. One example, 

though, of people that have tried to follow like the Reg A+, that has 

a 90-day period where they are supposed to receive feedback, but 

there are companies that have gone well past 90 days at this point 

and they are waiting for a decision. Is that decision delayed because Reg A+ decisions are normally delayed? Or is that because 

we are going through a certain set of scrutiny for ICO-type companies? 

Mr. CLAYTON. I am not aware of any specific facts, but I can tell 

you that the Reg A process, if somebody submits a deficient filing, 

is going to take longer than the usual period of time because you 

have to send it back to them and have them resubmit, as if it 

doesn’t have financial statements. 

Mr. DAVIDSON. Correct. It could be specific things, but I just 

want to highlight, you guys have made a way forward for people 

to comply with existing securities laws, and you have done good enforcement actions. I look forward to seeing how you move forward 

and look forward to continuing to cooperate to launch this legislative certainty. 

My time is expired and I yield, chairman. 

Mr. CLAYTON. Thank you. 

Mr. HILL. The gentleman’s time has expired. Now the gentleman 

from Nevada is recognized for 5 minutes. 

Mr. KIHUEN. Thank you, Mr. Chairman, and thank you, Chairman Clayton, for being here this afternoon. 

As you are aware, Las Vegas suffered the worst mass shooting 

in modern history last October 1st. Las Vegas is my hometown. I 

represent part of Las Vegas. Fifty-eight people lost their lives and 

over 500 people were injured. 

My community, as you can imagine, is still trying to heal from 

this tragedy. Now, given Congress’s refusal to take any efforts to 

prevent gun violence, we have seen many corporations step up, 

from Dick’s Sporting Goods to Delta Air Lines. CEOs are rejecting 

those who say there is nothing we can do. I applaud them for leading corporate social responsibility and to help save lives and prevent gun violence in the future. 

Now, like Congresswoman Maloney mentioned earlier, I would 

also like to talk a little bit about Citigroup. After the tragedy at 

Parkland a few weeks ago, Citi announced the new gun policies for 

their financial partners to require background checks and prohibit 

guns for teenagers. I know that you are familiar with those guidelines. 

It is reported that in April, a Republican member of the SEC, Michael Piwowar, threatened Citigroup, saying that because of their 

private gun policies, the bank lacked support for their agenda at 

the SEC. Now, Republicans and Democrats can agree that no regulated entity like Citibank should be punished at the SEC. 

I have a couple of questions, Mr. Chairman. Have you ever been 

contacted by anyone at the NRA about Citi or Bank of America gun 

policies? 

Mr. CLAYTON. No. 

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47 

Mr. KIHUEN. Never? 

Mr. CLAYTON. I have been contacted—well, let me— 

Mr. KIHUEN. In regards to this specific policy, that somebody will 

be punished if they follow background checks on their policies. 

Mr. CLAYTON. No. 

Mr. KIHUEN. OK. Have you ever spoken with Citigroup or Bank 

of America about their gun policies? 

Mr. CLAYTON. No. 

Mr. KIHUEN. OK. Have you ever discussed any company’s gun 

policies with the SEC staff? 

Mr. CLAYTON. Not that I recall. 

Mr. KIHUEN. You have never had any conversation in regards to 

any gun policies with any of these entities? 

Mr. CLAYTON. No, I am thinking because people have disclosures, 

they make disclosures, but have I—are you asking, like, gun policy 

in terms of SEC policy vis-a-vis gun policy? 

Mr. KIHUEN. Absolutely, yes. 

Mr. CLAYTON. No. No. 

Mr. KIHUEN. Again, as I stated before, a Republican member of 

the SEC, Michael Piwowar, threatened Citigroup. This is back in 

April, saying that because of their private gun policies, that the 

bank lacked support for their agenda at the SEC. Not only is that 

unethical, that is illegal. I am asking you, as a chairman if you 

have ever had that type of conversation? 

Mr. CLAYTON. That specific—that report and that incident, I am 

not going to discuss that. That has been a subject raised before, 

and as I said, the question of whether there should be an investigation is on the table, and it is inappropriate for me to discuss anything related to that subject. But as far as your other questions to 

me— 

Mr. KIHUEN. Let me ask you this, are you aware of the gun policies? 

Mr. CLAYTON. Yes. 

Mr. KIHUEN. The new implemented gun policies? 

Mr. CLAYTON. I mean, the— 

Mr. KIHUEN. OK. 

Mr. CLAYTON. When you say the gun policies, you mean the policies that private companies have adopted? 

Mr. KIHUEN. Correct. 

Mr. CLAYTON. Yes. Yes, I am aware of them. 

Mr. KIHUEN. OK. Now, do you believe that Commissioners and 

staff should require greater ethics training to prevent this type of 

conflict of interest from happening in the future? 

Mr. CLAYTON. I think that touches on what we talked about. I 

am not going to comment on that in this forum at this time. 

Mr. KIHUEN. OK. Now, I understand that an IG investigation has 

been requested. Will you agree to fully cooperate with this investigation? 

Mr. CLAYTON. I always cooperate with the IG investigations. 

Mr. KIHUEN. Thank you, Mr. Chairman. 

Last, I just want to, again, thank you for being here. Thank you 

for being so patient with all of us. I hope that this is addressed and 

that our regulatory agencies, including the SEC, are not threatening private companies on behalf of the NRA or any other special 

mcarroll on FSR431 with DISTILLER

48 

interest group, because again, as I said, it is not only unethical, but 

it is also illegal. 

Thank you, Mr. Chairman. I yield the remaining balance of my 

time. 

Mr. HILL. The gentleman from Nevada yields the balance of his 

time. That concludes our hearing. 

I want to thank the patience, as the gentleman from Nevada 

noted, of our witness, and appreciate his testimony today. The 

Chair notes that some Members may have additional questions for 

this panel, which they may wish to submit in writing. Without objection, the hearing record will remain open for 5 legislative days 

for Members to submit written questions to these witnesses and to 

place their responses in the record. Also, without objection, Members will have 5 legislative days to submit extraneous materials to 

the Chair for inclusion in the record. 

[Whereupon, at 1:24 p.m., the committee was adjourned.] 

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A P P E N D I X 

June 21, 2018 

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Testimony on "Oversight of the U.S. Securities and Exchange Commission" 

by 

Jay Clayton 

Chairman, U.S. Securities and Exchange Commission 

Before the 

Committee on Financial Services 

U.S. House of Representatives 

June 21,2018 

Chairman Hensarling, Ranking Member Waters and members of the Committee, thank 

you for the opportunity to testify today about the work of the U.S. Securities and Exchange 

Commission (SEC). 1 

With a workforce of over 4,500 staff in Washington and across our II regional offices, 

the SEC oversees, among other things (I) approximately $82 trillion in securities trading 

annually on U.S. equity markets; (2) the disclosures of approximately 4,300 exchange-listed 

public companies with an approximate aggregate market capitalization of $30 trillion; and (3) the 

activities of over 26,000 registered entities and self-regulatory organizations. These registered 

entities and registrants include, among others, investment advisers, broker-dealers, transfer 

agents, securities exchanges, clearing agencies, mutual funds and exchange-traded funds (ETFs), 

and employ over one million people in the United States. 

Since arriving at the Commission, I have been working with my fellow Commissioners 

and the SEC's dedicated staff to pursue an agenda that advances the agency's mission-to 

protect investors, maintain fair, orderly and efficient markets and facilitate capital formation. As 

we pursue that tripartite mission, I believe we should focus on the interests of our long-term 

Main Street investors. 2 

My interactions with the SEC staff over the past year have demonstrated unequivocally 

that the women and men of the SEC place the interests of our long-term Main Street investors 

first. We recognize, and are motivated by, the fact that tens of millions of Amc1icans are 

invested in our securities markets and have to make personal investment decisions-both direct 

decisions such as which stocks, bonds, mutual funds, ETFs and other securities to purchase and 

indirect investment decisions such as which broker-dealer or investment adviser to hire. Many 

Americans are also invested in our markets through pension funds and other intermediaries. 

Main Street investors benefit from investment opportunities, fair and efficient markets and, 

importantly, investor protection. In tum, we believe serving these interests furthers America's 

broad interests. 

1 The views expressed in this testimony are those of the Chairman of the Securities and Exchange Commission and 

do not necessarily represent the views of the President, the full Commission or any Commissioner. 

'My remarks in connection with our recent Investor Advisory Committee in Atlanta discussed in detail this 

principle-focusing on the interest of our long term Main Street investors--and the steps we have taken to further 

those interests. See Remarks to the SEC Investor Advisory Committee (June 14, 20 18), available at 

https://www. sec. gov/news/pu b l i c-statement/ c 1 ayton-statement -investor -advi sorv -corn mittee.:-06 1418. 
51 


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It is our Main Street investors, and their willingness to commit their hard-earned money 

to our capital markets for the long term, who have ensured that the U.S. capital markets have 

long been the deepest, most dynamic and most liquid in the world. Their capital provides 

businesses with the opportunity to grow and create jobs and supplies the capital markets with the 

funds that give the U.S. economy a competitive advantage. In tum, our markets have provided 

American Main Street investors with better investment opportunities than comparable investors 

in other jurisdictions. We should strive to maintain and enhance these complementary positions, 

including by being mindful of emerging trends and related risks. 

The historic performance and strength of our markets is even more striking when viewed 

in comparison to world markets and world population. The U.S. population is only 

approximately 4.4 percent of global population, but of the world's I 00 largest publicly traded 

companies, 53 are U.S. companies, representing 62 percent of the total market capitalization of 

those top l 00 companies. These figures demonstrate the historic importance of our capital 

markets to the America economy and the American people and also demonstrate that our relative 

contribution to the global economy is a remarkable, long-term achievement that has been driven, 

to a significant extent, by our capital markets. 

More significantly, at least 51 percent of U.S. households are invested directly or 

indirectly in our capital markets. 3 This level of retail investor participation stands out against 

other large industrialized countries. When I engage with my international counterparts, they 

make it clear that they would like to replicate our capital markets' broad retail investor 

participation for many reasons, including the competitive advantage it provides to our economy 

and how our capital markets have made a broad cross section of Americans' lives better. This 

level of investor participation, opportunity and protection has been a decades-long endeavor 

involving the SEC, other regulators and market participants and should not be taken for granted. 

Our New Strategic Plan 

The principles I have discussed-most notably the interests of our long-term Main Street 

investors-----are integrated in our new strategic plan. With input from my fellow Commissioners, 

Kara Stein, Michael Piwowar, Robert Jackson, Jr. and Hester Peirce, as well as many dozens of 

my colleagues at the SEC, the SEC recently puhlished a new, multi-year strategic plan that will 

establish a framework for the future of the agency4 

3 See Jesse Bricker et al. (2017), "Changes in U.S. Family Finances from 2013 to 2016: Evidence from the Survey of 

Consumer Finances," Federal Reserve Bulletin, vol. 103 (September), available at 

https://www.federalreserve.gov/publieations/filesiscf17.pdf; see also Rei. No. 34-83063, Form CRS Relationship 

Summary; Amendments to .FOrm ADV; Required Disclosures in Retail Communications and Restrictions on the use 

of Certain Names or Titles (Apr. 18, 2018) (for statistics except the mutual fund data); 2018 Investment Company 

Fact Book (!Cl, 58th ed. 2018) (mutual fund statistics). 4 See U.S. Sec. and Exch. Comm'n Strategic Plan: Fiscal Years 2018-2022, Draft for Comment (June 2018), 

available at https:l/www.sec.gov/filesisec-strategic·plan-2018-?Q22.pdf. The SEC's plan was prepared pursuant to 

the Government Performance and Results Act (GPRA), as amended, which requires agencies to publish a strategic 

plan once every four years (see 5 USC§ 306). 

2 
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The plan, which is available on our website for public comment, re-affirms the SEC's 

tripartite mission and the values that unite us in our work, while also providing a strategic vision 

and path that describes where we want to be in the future and how we expect to get there. The 

key priorities include (l) our commitment to Main Street investors; (2) a focus on being 

innovative, responsive and resilient to developments and trends in the markets; and (3) using 

technology, data analytics and human capital to improve our performance and manage our 

internal resources and risks. We are looking forward to the additional insights we will gain from 

our various constituents as we finalize the plan in the coming months. I welcome your 

comments on the strategic plan. 

Fiscal Year 2018 Developments 

These principles set forth in our strategic plan are embodied in our near-term Regulatory 

Flexibility Act rulemaking agenda. 5 When the agenda was published, I noted that it was shorter 

than prior agendas and was so, principally, because it reflected what I expected us to complete 

during the year. 6 We have made significant progress since the Fall 201 7 Agenda, and I would 

like to now highlight several of the SEC's accomplishments over the past months. 

Facilitating Capital Formation and Investment Opportunities 

In executing the SEC's tripartite mission, we seek to promote a market environment 

conducive to capital formation while ensuring that our markets are fair and resilient and our 

investors remain well protected. As I have noted on many occasions, facilitating capital 

formation, particularly with an eye toward encouraging promising emerging companies to enter 

our public capital markets, has been a focus for the past year. While progress has been made, I 

believe we can and should do more to facilitate capital formation in our public and private capital 

markets and, particularly, for small and emerging companies. 

Fewer promising emerging companies are choosing to enter our public capital markets 

than in the past, and, as a result, equity investment opportunities for Main Street investors are 

more limited. There has been much debate about the causes and effects of this trend, but from 

my perspective, having a broader portfolio of quality public companies--especially those at the 

earlier stage of their growth cycle-ultimately will have positive results for our Main Street 

investors. Because it is generally difficult and expensive for Main Street investors to invest in 

private companies, they will not have the opportunity to participate in the growth phase of these 

companies to the extent they choose not to enter our public markets or do so only later in their 

lite cycle. Additionally, it is my experience that companies that go through the SEC public 

registration and offering process often come out as better companies, providing net benefits to 

the company, investors and our capital markets. 

5 See U.S. Sec. and Exch. Comm'n, Agency Rule List (Spring 2018), available at 

h!!rr~:/iwww.reginfo.govjgublic/doieAgeng_aMain?operationcOPERATION GET AGENCY RULE LJST¤t 

Pub-true&agencyC ode~&showS tagc-active&agcncvC d-323 5&Image5 8 .x=84&1 mageS 8. y--I3&Image5 S=Su bm it. 6 Over the past 10 years, the Commission has completed, on average, only a third of the rules listed on the near-term 

agenda. As examples, 18 rules were listed as to-be-adopted in 2008, and 32 rules were listed in the same category 

for 2016; in each case, about 27 percent of the rules were adopted in each year. 

3 
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While there is no silver bullet to counter the negative trend in the number of U.S. public 

companies, we will continue working to enhance capital formation opportunities without 

sacrificing the important investor protections our public company disclosure system has provided 

for over 80 years. Part of the solution, however, is to recognize that a one size regulatory 

structure for public companies does not fit all. The Jumpstart Our Business Startups (JOBS) Act 

helped create an ecosystem whereby scaling disclosure and other regulatory requirements 

provided incentives for companies to conduct public offerings while maintaining the world's 

most robust investor protection environment. 

Over the past year, our Division of Corporation Finance (Corporation Finance), under the 

direction of Bill Hinman, has carried out several key initiatives with a particular emphasis on 

capital-raising opportunities, which I will highlight below. We also are working to identify the 

Commission's first Advocate for Small Business Capital Formation, who will provide additional 

leadership in helping small issuers raise capital. 

Simplifying the Public Capital-Raising Process 

Corporation Finance simplified the capital raising process for first-time registrants and 

newly public companies by expanding the confidential submission process, which provides for 

non-public review of certain securities offerings, including for initial public offerings (IPOs) and 

otTcrings within one year of an IPO, allowing newly public companies to raise capital with less 

exposure to market volatility, which benefits them and their ~nvestors. 7 Corporation Finance 

also provided greater clarity about what financial information is required when submitting draft 

registration statements so companies can avoid the time and expense of preparing and filing 

interim financial information that will be superseded by the time the filing is first made publicly 

available. 8 These accommodations appear to be making a positive difference for issuers; 

according to reports, the amount of time that it has taken for issuers to price their offerings after 

publicly posting their registration statement information has dropped9 This gives issuers more 

control over their offering schedules and limits their exposure to market volatility. At the same 

time, we continue to devote significant statf resources to reviewing filings for compliance with 

the rules that require companies to provide investors key financial information and other required 

disclosures. 

Corporation Finance has also been encouraging companies and investors to approach our 

staff about impediments to raising capital and pursuing novel transactions. For example, there 

are circumstances in which the Commission's reporting rules may require publicly traded 

companies to file financial statements for other entities, such as a probable business acquisition. 

However, for some transactions this information is clearly not material to the total mix of 

See Draft Registration Statement Processing Procedures Expanded, Division of Corporation Finance 

Announcement (June 29, 2017) [Supplemented Aug. 17, 2017], available at 

llttps://ww\v.sec.gov/corolin/announcement/draft-registration-statement-processing-procedures-expanded. 

8 See Securities Act Forms Compliance and Disclosure Interpretation 101.04 and 101.05, available at 

https://www.scc.gov/division~/comfin/guidancc/safinterp.htm. 

9 See Brandon Kochkodin and Alex Barinka, !PO Time/ines Are Cut by 80%After SEC's Private Filing Decision, 

Bloomberg (Dec. 22, 2017), availah/e at https:l/www.bloomberg.comlnews/ar1iclcsl2017-12-22/ipo-timelines-arecut-by-80-after-sec-s-privatc-filing:Qeci~iQ!l. 

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infonnation available to investors and is burdensome and costly to generate. Under Rule 3-I 3 of 

Regulation S-X, issuers may request and the Commission may grant modifications to their 

financial reporting requirements in these situations and where consistent with investor protection. 

Corporation Finance staff are placing a high priority on responding to these requests with timely 

guidance. 

With regard to future Commission actions, I anticipate that the Commission will soon 

consider adopting final amendments to the "smaller reporting company" definition, which would 

expand the number of issuers eligible to provide scaled disclosures. In light of comments 

received during that rulemaking process, we are also taking a fresh look at the thresholds that 

trigger the requirement contained in Section 404(b) of the Sarbanes-Oxley Act to have an auditor 

provide an attestation report on internal control over financial reporting. 

Corporation Finance also is exploring additional ideas to encourage more companies to 

enter our public equity markets. For example, the JOBS Act provided an exemption for 

Emerging Growth Companies (EGCs) to communicate with potential investors prior to or 

following the filing of a registration statement to "test the waters" for an offering, and our 

current near-term agenda includes a proposal to extend the "test the waters" provision to nonEGCs. 

Improving Disclosure Effectiveness 

Another important component of improving our public company regulatory regime is 

Corporation Finance's initiative to improve public company disclosure by reviewing our 

disclosure requirements and considering ways to improve the disclosure regime for the benefit of 

both investors and companies. I believe we should regularly review whether we have disclosure 

requirements that are outdated, duplicative or can otherwise be improved. 

In October 2017, the Commission proposed amendments, as required by the Fix 

America's Surface Transportation (FAST) Act, to modernize and simplifY certain disclosure 

requirements in Regulation S-K and related rules and fonns in a manner that reduces the costs 

and burdens on registrants while continuing to provide all material information to investors. 10 

Corporation Finance is preparing recommendations for the Commission to finalize these 

amendments. Further, Corporation Finance is developing recommendations for updating certain 

Industry Guides to modernize industry-specific disclosure requirements, specifically for mining 

and bank holding company issuers. Corporation Finance is also developing recommendations 

for final rules to update and simplify disclosure requirements that may have become outdated, 

overlapping or duplicative with other Commission rules or U.S. GAAP. 

Corporation Finance is developing recommendations for the Commission for proposed 

changes to the requirements in Rules 3-05,3-10 and 3-16 of Regulation S-X (which provides 

requirements for financial statements) to improve those requirements for both investors and 

registrants. While our disclosure requirements in Regulation S-K (which provides requirements 

10 See Press Release 2017-192, to Implement FAST Act Mandate to Modernize and Simplify 

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for public company disclosure) often receive more attention, many Regulation S-X rules are 

more prescriptive and more costly for issuers. I anticipate that Corporation Finance's work in 

this area will yield significant benefits for public issuers without adversely affecting the 

availability of material financial information or adversely affecting investor protection. 

Exempt Offerings and Small Business Initiatives 

As the number of public offerings has declined, a significant and growing amount of 

capital is being raised pursuant to non-registered offering exemptions. Congress and the 

Commission have taken notable steps in recent years to further develop a capital formation 

ecosystem that includes a scaled disclosure regime and provides small- and medium-sized 

businesses additional capital raising avenues while maintaining robust investor protections. 

Since the Commission adopted amendments to Regulation A in 2015, the number of 

qualified offerings and the aggregate amount sought in those offerings has substantially 

increased relative to the pre-amendment numbers. Eighty-nine issuers in 221 qualified offerings 

raised a total of approximately $798 million through March 31,2018. I directed the staff to 

continue monitoring this market and gathering additional information about the use of 

Regulation A by issuers, investors and other market participants. I also requested that the staff 

accelerate the next statutory review of the current Regulation A offering limit to 2019. Further, 

enacted last month, the Economic Growth, Regulatory Relief, and Consumer Protection Act 

requires the Commission to amend Regulation A to allow reporting companies to use the 

exemption, and that rulemaking project is underway. 

In addition to Regulation A, in 2017, $147 billion was raised using Rule 506(c), which 

permits the use of general solicitation in exempt offerings. We arc also seeing early-stage 

businesses use crowdfunding as a securities ofiering method. Between May 2016, when 

Regulation Crowdfunding went into effect, and March 2018, there were 778 offeJings initiated 

under the regulation's exemption, with a reported total amount raised of$68.7 million. 

As the exempt offering market grows and evolves, the SEC staff continues to monitor 

developments, gather and examine data and assess the effectiveness of these new exemptions in 

tcnns both of their ability to raise capital for smaller companies as well as providing appropriate 

protections for investors in these markets. Staff will be conducting reviews of the impact of 

Regulation Crowdfunding and Regulation A on capital formation and investor protection and 

will provide recommendations to the Commission. 

The Economic Growth, Regulatory Relief, and Consumer Protection Act also requires the 

Conunission to revise Securities Act Rule 701, which provides an exemption from registration 

for securities issued by non-reporting companies pursuant to compensatory arrangements. 

Specifically, the Commission is required to increase from $5 million to $10 million the aggregate 

sales price or amount of secuJitics able to be sold during any consecutive 12-month period before 

an issuer is required to deliver additional disclosures to investors. Work on that rule amendment 

is underway, and staff is considering additional ways that Rule 701 might be modernized. 

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We recognize that as new and enhanced exemptions provide additional avenues for 

capital formation, small companies and their investors also could benefit from reduced 

regulatory complexity. Corporation Finance is considering ways to harmonize and streamline 

the Commission's exempt offering rules in order to enhance their clarity and ease of use. 

Shareholder Engagement and the Proxy Process 

Given the core role of the proxy process in public company govemance, I believe the 

Commission should examine this area to determine whether the needs of shareholders and 

companies are being adequately and efficiently addressed. Over the years, participants in the 

proxy process -companies and shareholders alike -have expressed concerns about a variety of 

proxy matters. In 2010, the SEC solicited input on several proxy matters in a concept release on 

the U.S. proxy system. 11 It is clear that opportunities for improvement exist, and I am interested 

in obtaining updated feedback on the 2010 "Proxy Plumbing" concept release from market 

participants. 12 

There are a number of issues that this should address, including the quality and mix of 

infom1ation provided to shareholders and how that information is provided, shareholder 

proposals, the role of proxy advisory firms and the costs and burdens of the proxy system on 

companies and shareholders. One area in particular I believe we should analyze is whether the 

voices of long-term retail investors are being underrepresented, misrepresented or selectively 

represented in corporate governance. 

Cybersecurity 

As a general matter, it is critical that investors be informed about the dependence of our 

economy on the storage, transmission and protection of data and the related material threats that 

issuers, market participants and our markets themselves face. The Commission recently 

provided greater clarity on disclosure obligations related to cybersecurity. In February 2018, the 

Commission issued a statement and interpretive guidance to assist public companies in preparing 

disclosures about cybersecurity. 13 This guidance provides the Commission's views about public 

companies' disclosure obligations under our laws and regulations with respect to matters 

involving cybersecurity risk and incidents. It also describes the importance of comprehensive 

policies and procedures related to cybersecurity events. This includes appropriate disclosure 

controls and having insider trading policies and procedures that guard against corporate insiders 

trading during the period between a company's discovery of a cyberseeurity incident and public 

disclosure. It also addresses the importance of selective disclosure prohibitions in the 

cybersecurity context We are continuing to examine whether public companies are taking 

appropriate action to infom1 investors about material cyber-related information, including after a 

11 Concept Release on the U.S. Proxy System, Release No. 34-62495 (July 14, 2010) [75 FR 42982 (July 22, 2010)]. 11 See Remarks at the PLI 49" Annual Institute on Securities Regulation (Nov. 8, 2017), available at 

https://www.sec. gov/ncws/speech/spcech-clavton-20 17-11-0R. 

"See Press Release 2018-22, SEC Adopts Statement and Inte1pretative Guidance on Public Company Cybcrsecurity 

Disclosures (Feb. 21, 2018), m·ailable at https://v.,rww.sec.gov/news/pre~s-release/20) R-22. 

7 
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breach has occurred, and we will investigate issuers that mislead investors about material 

cybersecurity risks or data breaches. 

In the area of enforcing our disclosure rules and their application to cyber intrusions, we 

recently announced charges against the company fonnerly known as Yahoo! in the first 

enforcement action that the Commission has brought against a public company for disclosure 

failures relating to a cyber breach. 14 As one of the Co-Directors of our Enforcement Division 

said, companies can face difficult choices when deciding whether and how to disclose 

information about cyber incidents, and we should hesitate before second-guessing reasonable 

judgments on these issues. 15 But the Yahoo! case should serve as an example that, in today's 

world, companies must have adequate policies and procedures in place to ensure that they 

respond appropriately to-and, where necessary, adequately disclose---material cyber risks and 

incidents. 

Turning to eybersecurity at the SEC, in August 2017, shortly after my arrival at the 

Commission, I learned about an intrusion into the SEC's EDGAR system that occurred in 2016. 

We promptly disclosed this intrusion to the public and this Committee. 16 As you may recall, the 

intrusion concerned the test filing component of our EDGAR system. The intruders gained 

unauthorized access to EDGAR filing infonnation that was not yet public, which may have 

provided a basis for illicit trading. 

Upon learning of this intrusion last August, after consulting with my colleagues, I 

initiated a number of different work streams to assess the nature, cause and scope of the 

intrusion; the potential factors that may have led to the intrusion; the agency's response at the 

time; and the extent to which cybersecurity enhancements are needed at the SEC. 17 Personnel 

from across the agency--including members of the Office oflnfonnation Technology (OIT), 

Division of Enforcement (Enforcement), Office of the General Counsel (OGC) and the Office of 

the Inspector General (OIG}-as well as outside advisors and other authorities, 18 have been 

t

4 See Press Release 2018-71, Altaha, Former(v Known as Yahoo!, Charged fVith Failing to Disclose Massive 

Cybersecurity Breach; Agrees To Pay $35 Million (Apr. 24, 2018), available at hltps://www.sec.govinews/pressrelease/2018-7!. 

15 Se~-;,lso Remarks at the Economic Club of New York (July 12, 2017). available at 

https://www.sec.gov/news/spcechircmarks-eco]}_O_mic-club-new-vork ('<Being a victim of a cyber penetration is not, 

in itself, an excuse. But, I think we need to be cautious about punishing responsible companies who nevertheless are 

victims of sophisticated cyber penetrations. Said another way, the SEC needs to have a broad perspective and bring 

proportionallty to this area that affects not only investors, companies and our markets, but our national security and 

our f\iture"). 16 See Press Release 2017-170, SEC Chainnan Cla_vton L\·sues Statement on Cybersecurity: Discloses the 

Comrnission's Cyber Risk Profile, Discusses lntrnsions at the Commission, and Reviews the CommissionS Approach 

to Oversight and Enforcernent (Sept. 20, 2017), available at https://www.sec.gov/news/prcss-release/2017-170; 

Statement on Cybersecurity (Sept. 20, 2017), available at https:/lwww.scc.gov/newsipublic-statement!statementclayton-2017-09-20; Testimony on "Examining the SEC's Agenda, Operation, and Budget" (Oct. 4, 2017), 

a\'ailab/e at h!.tP..~.Pw\VW.~~t;.~.gov/ncw_§lt~timonv/tQstim~.xamining-sect;!g~_mi!"!:..QP~ration-anQ:RJJ.Qg~1-

17 See Testimony on "Examining the SEC"s Agenda, Operation, and Budget," supra note 16. 18 For example, OGC has retained an outside technology and cybersecurity consultant with extensive expertise in 

cyber intrusion investigations, and orr has engaged outside technology and cybersecurity experts to advise on 

cybersecurity uplift efforts. 

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involved in these efforts. We have made progress on these fronts; and while much remains to be 

done, I believe it is appropriate to provide a brief update on the status of our work. 

OGC has informed me that its internal review of the 2016 intrusion is in its final stages. 

Upon its completion, I expect to provide this Committee with additional information resulting 

from that review. The OGC review is focused on understanding the nature, cause and scope of 

the intrusion. 

With regard to the 2016 intrusion itself, we believe that cyber threat actors were able to 

exploit a defect in our EDGAR system and access information in certain test filings (e.g., from a 

company checking the formatting of a draft earnings release to be filed on a Form 8-K) before 

the information became public through a subsequent live filing. Enforcement continues to 

investigate potential illicit trading that may be related to the intrusion. 

As a result of this review, technical, process and organizational deficiencies were 

identified. It appears that these deficiencies, taken together, contributed to internal delays in 

both the recognition of the intrusion itself and the internal appreciation of its scope and impact. 

We are working hard to address these issues. Although substantial work remains to be done, I 

will outline our principal efforts to date. 

• Governance and oversight. The OGC review has identified the need for better IT 

governance and oversight. We have created a new enterprise-level position of Chief Risk 

Officer, which will be responsible for coordinating ciforts to identify, monitor and mitigate 

risks across the agency. 19 We arc in the process of reorganizing our IT security office to 

provide additional resources in our cybersccurity operations branch, including additional 

management personnel to provide dedicated focus and expertise. In addition, we have 

launched an initiative to install Information System Security Officers in various functions to 

facilitate and improve collaboration between information system owners and business 

personnel, and to help ensure that each information system has operational security 

commensurate with the sensitivity of its infonnation. 

• Security controls. The OGC review has made it clear that the SEC would have benefitted 

from more robust preventative and detective cybersecurity controls, and we arc working to 

improve our control environment. The reorganization described above is designed to provide 

for increased focus on preventative and detective security and controls. Our new standalone 

EDGAR Business Office, established in 2017, has been working with OIT to implement 

teclmological enhancements and improve security monitoring, protections and compliance. 

On that front we have made technological enhancements, including to our security 

monitoring processes, and implemented additional data protection technologies. 

19 We have named Julie Erhardt as the acting Chief Risk Officer while we complete our search. Julie is a Deputy 

Chief Accountant at the agency and has an M.S. in management from Stanford University. Through her 14 years at 

the Commission and prior work as an auditor, Julie has substantial experience in internal controls, auditing and risk 

management. 

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We have expanded our use of penetration testing on our systems, including EDGAR, and we 

have undertaken additional efforts to analyze EDGAR's source code. In addition, we are 

working with outside experts and have partnered with other government agencies to assess 

the SEC's critical systems more broadly. 

• Risk awareness. The OGC review also makes it clear that SEC could have benefitted from 

improved awareness across the agency of the sensitivity and risks related to data collection 

and storage. We have enhanced cyber-incident information sharing across Enforcement, 

OIG and OIT, and we have improved reporting protocols for cyber security risks and 

exposures. 

It is very important to me to foster a culture that recognizes the great responsibility we have 

with respect to the data entrusted to us by our registrants and the public. We are closely 

scrutinizing how we can reduce any potential exposure of personally identifiable infom1ation 

contained in SEC systems, including EDGAR. In this regard, earlier this year, the 

Commission has acted to eliminate the collection of social security numbers and dates of 

birth on a number of EDGAR forms where we concluded that the information was not 

necessary to our mission20 

Similarly, with respect to market sensitive data, we are looking into whether we can reduce 

the data we take in or reduce its sensitivity (including, for example, by taking certain market 

sensitive data in on a delayed basis). For our systems that hold sensitive data, we have 

engaged an outside expert to help us assess our efforts to secure those systems. 

• Incident response. The OGC review highlighted the need to ensure that we have 

comprehensive incident response and escalation plans in place. We have revised the 

agency's incident management plan, which addresses reporting procedures and escalation 

protocols for cyber security events or incidents, and we expect to further improve the plan as 

we test it. And we have conducted multiple cyber incident response exercises to help prepare 

appropriate decision makers for various threat scenarios. 

• Legacy systems. The OGC review confirmed that we need to continue and improve upon our 

efforts to modernize key legacy information systems, especially EDGAR, and address risks 

associated with bespoke systems. We have increased the focus and resources on our legacy 

systems, particularly with respect to maintenance and replacement of those systems. The 

increased funding provided to us by Congress for fiscal year 2018 will allow us to accelerate 

our transition away from certain legacy systems and functionalities towards systems that 

have additional security enhancements. 

To be sure, no system can be I 00 percent safe from a cyber intrusion, particularly in a 

world where cyber threat actors are backed by substantial resources. More needs to be done to 

strengthen the SEC's cybersecurity posture. Indeed, our uplift efforts have revealed additional 

"'Amendments to Fonns and Schedules To Remove Provision of Certain Personally Identifiable Information, Rei. 

Nos. 33~10486. 34-83097, !C~33077 (Apr. 24. 2018), available at h\!m;ib_v:,y}v.scc.rrov/rules/finali20L8£U: 

10486.pdf. 

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areas that have required attention. But we are working through recommendations from our 

internal offices and several outside experts to improve, and we expect more recommendations to 

come. The review I requested by O!G, which is focused on the factors that led to the intrusion 

and the agency's response, similarly is ongoing. I appreciate OIG's efforts to help improve our 

knowledge and address risks, and I expect to receive a final report from OIG later this year. We 

look forward to reviewing the report and working with OIG to implement their 

recommendations. 

We are greatly appreciative of the support given by the Committee in our efforts in this 

ongoing process. The additional funding Congress have given us, and the feedback that 

members of this Committee have given me, will go a long way to helping us upgrade our 

security posture to better protect against the persistent threats that continue. 

Standards of Conduct for Broker-Dealers and Investment Advisers 

In early 2017, as I moved through the confirmation process, it became apparent that a 

wide range of market participants, including retail investors, and policymakers believed that 

standards of conduct for investment professionals (e.g., investment advisers and broker-dealers) 

were a matter where Commission action, including coordination with our fellow regulators, 

would be both appropriate and timely. In one of my first actions as Chairman, in June 2017, I 

issued a request for information, seeking input from the public on a range of potential issues, and 

since then, I have had a number of meetings with investors, consumer groups, industry 

participants and others across the full spectrum of these issues. 

In particular, the candid comments of retail investors in Missouri, Montana, Illinois and 

California, as well as those who travelled to New York for a roundtable, on what they expect and 

do not expect from investment professionals resonated with me in considering the appropriate 

course of action. These interactions, including consultations with my fellow Commissioners and 

staff, led me to the conclusion that the Commission should lead-but not dictate-our federal 

and state regulatory efforts in this area in order to (1) address investor confusion regarding the 

roles of, and the differences between, broker-dealers and investment advisers; (2) establish 

standards of conduct that meet reasonable investor expectations and adequately address conflicts 

of interest; and (3) minimize the effects of regulatory complexity, and potentially inconsistent 

legal standards applied to financial advice, due to the number ofregulators in this space21 

In April, the C01runission voted to issue for public comment a comprehensive package 

designed to close the gaps between the reasonable expectations of retail investors, on the one 

hand, and market and legal realities on the other hand. 22 The package is a multi-pronged 

21 For example, if you have a portfolio with a few stocks, a couple of mutual funds in a 40l(k) and an annuity, then 

your relationship with your investment professional could be subject to regulation by the SEC, FINRA, the 

Department of Labor, state insurance regulators, state securities regulators, state attorneys general, and, if the 

investment professional is associated with a broker-dealer or investment adviser or both that is part of a bank, 

federal and/or state banking regulators. 22 See Press Release 2018-68, SEC Proposes to Enhance Protections and Presen·e Choice for Retail Investors in 

Their Relationships rvith Investment Professionals (Apr. 18, 2018), available at https://\vww.sec.gov/news/pressrclease/20 18-68_. 

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solution, enhancing or clarifying obligations of broker-dealers and investment advisers to tbeir 

retail clients, as well as requiring disclosure designed to increase investor understanding. Our 

rulemaking package would significantly enhance retail investor protection and understanding 

while preserving retail investor access, in terms of both availability and cost, to a variety of types 

of investment services, in particular, the "pay as you go" broker-dealer model.23 

First, to address conflicts of interest and establish a relationship standard that reflects 

reasonable retail investor expectations, we proposed enhancing the standard of conduct for 

broker-dealers. Under proposed Regulation Best Interest, a broker-dealer, when making a 

recommendation of a securities transaction or investment strategy to a retail customer, would be 

prohibited from placing their financial or other interest ahead of the interest of the retail 

customer. To add clarity for all participants, the proposal would require the broker-dealer to 

comply with a disclosure obligation, a care obligation and two conflict of interest obligations. 

Under current standards, it has been argued that broker-dealers are permitted to 

recommend to tbeir retail customer a product that is "suitable" for the customer but not as good 

for the customer as another product that the broker-dealer offers because the first product makes 

the broker-dealer more money. No reasonable retail investor thinks that makes sense. Most 

broker-dealers say they do not do this. I believe our regulations should prohibit this. Let me be 

clear: our proposed Regulation Best Interest would address this. 

What would the broker-dealer have to do to act in the retail customer's best interest? 

First, the broker-dealer would need to disclose material facts relating to the scope and terms of 

their relationship with the retail customer, including all material conflicts associated with the 

recommendation. Second, the broker-dealer would need to exercise reasonable diligence, care, 

skill and prudence to make recommendations that arc in the best interest of the retail customer. 

Among other things, this standard would put greater emphasis on cost and financial incentives as 

factors in evaluating the facts and circumstances of a recommendation and whether it is in the 

customer's best interest. Third, and the most significant, the broker-dealer would need to 

establish, maintain and enforce policies and procedures to eliminate, or mitigate and disclose, 

material conflicts of interest related to financial incentives. To be clear, disclosure alone would 

not be sufficient. Even if a broker-dealer has mitigated and disclosed its conflicts, its 

recommendations to the client cannot place the broker-dealer's interests ahead of the retail 

customer's interests. 

The proposed broker-dealer best interest obligation draws from the principles underlying 

an investment adviser's fiduciary duty, recognizing that both broker-dealers and investment 

advisers often provide advice in the face of conflicts of interest. These common principles are 

easier to compare given that as another part of our refonn package we issued a proposed 

interpretation reaffirming- and in some cases clarifying-~ the fiduciary duty that investment 

advisers owe to their client. The interpretation is designed to provide advisers with a reference 

23 See The Evolving Market for Retail Investment Services and Forward~ Looking Regulation- Adding Clarity and 

Investor Protection while Ensuring Access and Choice (May 2, 2018), available at 

https://www .sec. gov /news/speechlspeech-c I ayton-20 18-05-02. 

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point for understanding their obligations to clients and reaffinns that an investment adviser must 

act in the best interests of its client. 

While the two standards draw from common principles, some obligations of brokerdealers and investment advisers will differ because the relationship types of these investment 

professionals differ. This is a practical necessity. But the principles are the same, and I believe 

the outcomes in both cases should be the same: retail investors expect high-quality advice where 

their investment professional is not placing their interest ahead of the investor's interest-! 

believe our proposals are designed to make sure they get just that. 

Second, the rulemaking package would help retail investors understand who they are 

dealing with, what that means and why it matters. Our proposal would ( 1) require broker-dealers 

and investment advisers to clearly state what they are; and (2) prohibit stand-alone brokerdealers from using the tenns "adviser" or "advisor" as part of their names or title. Also, finns 

would be required to provide investors with a new, distinct disclosure that we call a 

"Relationship Summary" that would highlight key differences between broker-dealers and 

investment advisers, and also provide relevant questions for investors to ask. We have already 

received helpful suggestions from commenters, including retail investors, on how we can 

improve the proposed Relationship Summary via a "feedback flyer" available on our website and 

look forward to even more engagement on how we get this disclosure right. 

I believe that our framework will allow investment professionals to provide high-quality 

advice while maintaining a range of options for retail investors. More pointedly, and importantly 

for investors, this approach allows for further engagement with our fellow federal and state 

regulators to seek consistency and cohesion across the spectrum of investment professionals and 

products-and we intend to work closely with them to promote ret,rulatory hannonization and 

reduce duplication and inconsistency. 

The Commission and staff have been thinking about these issues for over 20 years and 

about this rulemaking tor many years. I urge commenters-particularly Main Street investorsto review the proposed rules thoroughly and engage with us on it during the 90-day comment 

period. In order to provide as much opportunity for that engagement as possible, I also 

announced several investor roundtables across the country to hear directly from those the 

proposal is designed to serve-Main Street investors. 24 I, along with others at the SEC, have 

since met in person with retail investors in Houston and Atlanta and look forward to hearing 

from others at additional roundtables to come. 

Digital Assets and /COs 

The digital asset and initial coin offering (!CO) markets are areas where the Commission 

has been focusing a significant amount of attention and resources. I am very optimistic that 

developments in financial technology, including distributed ledger technology, will help 

24 See Statement on Public Engagement Regarding Standards of Conduct for Investment Professionals Rulemaking 

(Apr. 24, 2018), available at https:i/www.sec.gov/news/public-statement/public-engagement-standards-conductinvestment-profcssionqJ_s-rulemaking, 

13 
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facilitate capital formation, providing promising investment opportunities for institutional and 

Main Street investors alike. At the same time, regardless of the promise of this technology, those 

who invest their hard-earned money in opportunities that fall within the scope of the federal 

securities laws deserve the full protections afforded under those laws. This ever-present need 

comes into focus when enthusiasm for obtaining a profitable piece of a new technology "before 

it's too late" is strong and broad. Fraudsters and other bad actors prey on this enthusiasm and 

sense of urgency. 

My efforts-and the tireless efforts of the SEC staff-have been driven by various 

factors, but most significantly by a desire to see to it that Main Street investors understand all the 

material facts and risks involved, particularly with ICOs. 25 Unfortunately, it is clear that 

nefarious actors have sought to ~rey on investors' excitement about the quick rise in 

cryptocurrency and reo prices. 6 

There has been significant interest and many questions about the SEC's role in this space, 

particularly relating to !COs. Some say we are slow to regulate in this area while others have 

requested an unprecedented relaxation of our regulations. These requests have, on occasion, 

been cast as a need tor guidance. We have been clear -we are not relaxing our requirements that 

apply to the offer, sale and trading of securities. We also have discussed in detail how our laws 

define what is a security. 27 Determining what falls within the ambit of a securities ofrer and sale 

25 In December, I issued a statement that provided my general views on the cryptocurrcncy and !CO markets. The 

statement was directed principally at two groups: (1) Main Street investors and (2) market professionals--including, 

for example, broker-dealers, investment advisers, exchanges, lawyers and accountants--whose actions impact Main 

Street investors. See Statement on Cryptocurrencies and Initial Coin Offerings (Dec. 11, 2017), available at 

https://,vww .sec.gov/news/public-statcment/statement-clayton-f017-l2-ll. 26 In one instance, the SEC brought an enforcement action against a purported bitcoin mining company that claimed 

to have a product "so easy to use that it is 'Grandma approved.'" In this case, in less than six months, the company 

allegedly raised more than $19 million from more than 10,000 investors. The SEC charged that company with 

operating a Ponzi scheme. See SEC Obtains Final Judgment Against Founder of Bitcoin Mining Companies Used to 

Defraud Investors (Oct. 4, 2017), available at https://"::_~y_w.s~~~g_Q.Y.{li_tig_ationlli~J~~!5~:1J0171Lr23960.ht_m; Press 

Release 2015-271, SEC Charges Bitcoin Mining Companies (Dec. 1, 2015), available at 

https://www .s~c.gov/ne\vs/pressrelease/20 15-~71.htmL 27 See Testimony on "Oversight of the SEC's Division of Enforcement" (May 16, 2018), available at 

https://www.sec_ .. ggy/newsjl~imolJYi~~-!l .. li!.Ony-o~]1t-sccs-division-enforcement~ Testimony on "Oversight of 

the SEC's Division of Corporation Finance" (Apr. 26, 2018), ami/able at 

https://w\VW.scc.gov/news/testimonylte:-;timonv-oversight-sccs-division-comoration-finance; Joint Statement by 

Divisions of Enforcement and Trading and Markets on Potentially Unlawful Online Platforms for Trading Digital 

Assets (Mar. 7, 2018), available at bl!.Q.1;//vl\'{~'.sec.goy/ne\\5/publi~-:_statcm~ll.t/enforcement-tm_::.?tatem~nJ.: 

potentially-unlawful-online-platforms-trading; Testimony on "Virtual Currencies: The Roles of the SEC and CFTC" 

(Feb. 6, 2018) available at https://www.sec.2ovlnews/ttstimonv/testimony-virtual-currencies-oversight-role-ussecuritics-and-exchanoe-commission; Statement by SEC Chairman Jay Clayton and CFTC Chairman J. Christopher 

Giancarlo: Regulators Are Looking at Cryptocurrency (Jan. 25, 2018), available at 

https:/iwww.sec.govinewsipublic-statementlstatement-clayton-giancarlo-012518; Joint Statement by SEC and CFTC 

Enforcement Directors Regarding Virtual Currency Enforcement Actions (Jan. 19, 2018), available at 

https:J/www.sec.gov/news/public-statement/joint-statement-sec-and-cftc-enforcement-director~; Statement on 

Cryptocurrencies and Initial Coin Offerings (Dec. 11, 2017), available at https:;/www.sec.gov/ncwslpublicstatcment/statement-clayton-2017-12-1 L; SEC Statement Urging Caution Around Celebrity Backed !COs (Nov. 1, 

20 17), available at https: 1/v..'ww .sec. gov/nev,'s/publ ic-statemcnt/statement -potential! y-un lawfu !-promotion-icos; 

Statement by the Divisions of Corporation Finance and Enforcement on the Report oflnvcstigation on The DAO 

(July 25, 2017), available at https://www.scc.gov.'newsipublic-statement/comfin-cnforcement-stg.tcment-report14 
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is a facts-and-circumstances analysis, utilizing a principles-based framework that has served 

American companies and American investors well through periods of innovation and change for 

over 80 years. lfyou are attempting to fund a project--whether it be opening anew 

manufacturing plant or creating an application on a distributed network-by inviting others to 

invest in the enterprise based on the expectation that they will profit from other people's effmis, 

the same laws and standards apply: register the securities offering or use an exemption from 

registration. Issuing a "token" rather than a share certificate does not change that approach. 

Concluding otherwise would ignore the fundamental tenets of over 80 years of securities 

regulation and put other businesses seeking to raise capital at a competitive disadvantage. 

Overall, I believe the Commission is taking a balanced regulatory approach to distributed 

ledger technology (and Fin Tech more generally) that both fosters innovation and protects 

investors. For example, in the area ofiCOs, the Cormnission issued a Report oflnvestigation in 

July 2017 regarding the application of the federal securities laws to those products2 g Our 

Corporation Finance Division Director recently further outlined the approach staff takes to 

evaluate whether a digital asset is a security. 29 Our staff meets regularly with entrepreneurs and 

market professionals interested in developing new and innovative investment products in 

compliance with the federal securities laws. We are also encouraging issuers and other market 

participants to contact SEC staff at our dedicated email address, FinTech(alsec.gov. 

We established a dedicated Distributed Ledger Technology Working Group which 

focuses on emerging applications of distributed ledger technology in the financial industry, and a 

Fin Tech Working Group. We recently named a new Associate Director in Corporation Finance 

to serve as the Senior Advisor for Digital Assets and Innovation and coordinate efforts in this 

area across the agency. 30 W c are also meeting regularly with other regulatory agencies to 

coordinate efforts and identifY any areas where additional regulatory oversight may be needed, 

particularly through efforts led by the Department of the Treasury. Divisions across the 

Commission have worked together, as well as with other regulators, to issue public statements 

regarding !COs and virtual cmTencies. 31 And importantly, we have acted swiftly to crack down 

invcstig'!_tion-q~.Q; see also U.S. Sec. and Exch. Comm ·n, Cybersecurity Enforcement Actions, available at 

https://www.sec.gov/spot!ight/cybersecurity-enf0rcemcnt-actions. 

28 Report ofinvcstigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: The DAO (July 25, 

20 17), available at https://www.sec.gov/litigationiinvesl.l!"'JlQI!LH~l20Lm:l1. 29 See William Hinman, Digital Asset Transactions: When Howey Met Gary (Plastic): Remarks at the Yahoo 

Finance All Markets Summit: Crypto (June 14, 2018), m·ailable at https://www.sec.gov/news/speechlspeechhinman-06141 R. 30 See Press Release 2018-102, SEC Names Valerie A. Szczepanik Senior Advisor for Digital Assets and Innovation 

(June 4, 2018), available at h1!Q.s://\v\vw.sec.2~2Y~.w~ress-g~l.£?~aQ18-l 02. 31 Statement by the Division of Enforcement and Office of Compliance, Inspections and Examinations on 

Potentially Unlawful Promotion of Initial Coin Offerings and Other Investments by Celebrities and Others (Nov. 1, 

2017), available at https://\vww.sec.gov/newsipublic-statement/statement-potentiallv-un1awful-promotion-ico1; 

Joint Statement by SEC and CFTC Enforcement Directors Regarding Virtual Currency Enforcement Actions (Jan. 

19, 20 18), available at https:/ /wwvv .sec. govinev.:s/pub 1 ic-statement/ioi nt -statement -sec-and-c ftc-enforcementdirectors; Statement by Divisions of Enforcement and Trading and Markets on Potentially Unlawful Online 

Platforms for Trading Digital Assets (Mar. 7, 2018), available 

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on allegedly fraudulent activity in this space, particularly fraud and other violations that have 

targeted Main Street investors. 32 

Enforcement 

Dedicated staff of the Division of Enforcement (Enforcement), led by Co-Directors 

Stephanie Avakian and Steven Peikin, continues its work safeguarding investors and the capital 

markets through the vigorous enforcement of our federal securities laws. Since I was last before 

the Committee, the Commission has taken a number of significant enforcement-related actions 

that, when considered together, demonstrate our commitment to protecting investors, deterring, 

detecting and punishing wrongdoing and rooting out fraud and bad actors in our financial 

markets. I believe that the net effect of Enforcement's efforts over the past year has been to 

make our capital markets a safer place for investors to put their hard-earned money to work. 

After more than a year on the job, I continue to firrnly believe that Enforcement's work is 

essential to protecting investors and maintaining confidence in the integrity and fairness of our 

capital markets. While some point to particular statistics to claim that the SEC and more 

specifically Enforcement are pulling back their investor protection effmts, I want to make 

absolutely clear that is not the case. As noted by Enforcement's Co-Directors in their Annual 

Report, our success is best judged both quantitatively and qualitatively and over various periods 

of time. 33 Based on such an evaluation, including bringing actions for the most serious 

violations, obtaining punishments to deter unlawful conduct and returning money to investors, 

Enforcement has been successful. I can assure you that our Enforcement Division will continue 

its vigorous enforcement of the federal securities laws and hold bad actors accountable. 

One area where the Enforcement staff has redoubled its focus is on protecting Main 

Street investors. Looking out for these investors has always been a core tenet of the 

Commission's enforcement program, and the last year has been no exception. To bolster our 

capabilities and focus on protecting Main Street investors, Enforcement forrned a new Retail 

Strategy Task Force, which concentrates resources and draws on expe1tise from across the 

Commission to develop strategies and techniques for addressing the types of misconduct that 

most affect retail investors. 34 Going forward, Enforcement will continue to place a priority on 

misconduct that harrns retail investors, such as offering frauds, Ponzi schemes, conflicts of 

interest and inappropriate or excessive fees. 35 

32 See U.S. Sec. and Exch. Comm'n, Cybersecurity Enforcement Actions, available at 

https://www.sec.!!ov/spotlight/cybersecurity-enforcemcnt-actions. 

33 See U.S. Sec. & Exch. Comm 'n, Div. of Enforcement, Annual Report: A Look Back at Fiscal Year 2017 at 3 

(Nov. 15, 2017), ami/able at https:l/w\~-'~0!'c,gQvlfileslenforcement-annual-renm1c2Q.l1.Jl9f [her~illsi!.ei 

Enforcement Annual Report]. 34 See Press Release 2017-176, SEC Announces Enforcement Initiatives to Combat Cyber-Based Threats and Protect 

Retail Investors (Sept. 25~ 2017), available at https://www.sec.oov/news/press-re1ease/2017-176. 35 For example, Enforcement's Share Class Selection Disclosure Initiative reflects our continuing commitment to 

protecting and compensating retail investors whenever possible. The initiative encourages self-reporting and selfremediation by investment advisers who received compensation for putting retail clients in more-expensive mutual 

fund share classes when identical, less-expensive share classes were available, without disclosing the conflict of 

interest. The initiative represents an effort by Enforcement to efficiently leverage its resources to expose widespread 

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Enforcement has also continued to focus its efforts on addressing cyber-related threats to 

investors and the financial markets. Since I was last before the Committee, these threats have 

only increased in magnitude and frequency, and I believe that they present some of the greatest 

risks that we must confront today. In response to these risks, last year Enforcement created a 

new Cyber Unit, which focuses the Division's resources and expertise on, among others things, 

hacking to obtain material, non-public infonnation, violations involving distributed ledger 

technology and cyber intrusions. 36 The resources we have dedicated to the Cyber Unit's 

important work demonstrate the high ptiority that we continue to place on cyber-related issues 

affecting investors and our markets. 

Returning Fundv to Main Street Investors 

In my view, protecting retail investors also means, whenever possible, putting money 

back in their pockets when they arc harmed by violations of the federal securities laws. Last 

fiscal year, the Commission returned a record $1.07 billion to harmed investors37 We remain 

committed to this important part of our work, and we expect to return a substantial amount this 

year as well. 

The recent unanimous Supreme Court decision in Kokesh v. SEC, however, has impacted 

our ability to return funds fraudulently taken from Main Street investors. In Kokesh, the 

Supreme Court found our use of the disgorgement remedy to be a penalty, which time-limited 

the ability of the Commission to seek disgorgement of ill-gotten gains beyond a five-year statute 

of! imitations applicable to penalties. I do not believe it is productive to debate the merits of the 

Kokesh decision. I agree that statutes of limitation serve many important functions in our legal 

system, and remedies should have reasonable limitations periods. Civil and criminal authorities, 

including the SEC, should do everything in their power to bring appropriate actions swiftly. But, 

as I look across the scope of our remedial powers, I am troubled by the substantial amount of 

losses that we may not be able to recover for retail investors. Said simply, if the fraud is wellconcealed and stretches beyond the five-year limitations period applicable to penalties, it is likely 

that we will not have the ability to recover funds invested by our retail investors more than five 

years ago. Allowing clever fraudsters to keep their ill-gotten gains at the expense of our Main 

Street investors-particularly those with fewer savings and more to lose- is inconsistent with 

basic fairness and undermines the confidence that our capital markets are fair, efficient and 

provide Americans with opportunities for a better future. 

I would welcome the opportunity to work with Congress to address this issue to ensure 

defrauded retail investors can get their investment dollars back. I believe that any such authority 

should be narrowly tailored to that end while being true to the principles embedded in statutes of 

limitations. 

misconduct in the investment advisor industry while, at the same time, quickly and efficiently compensating banned 

investors. 

36 See SEC Announces E1~(orcement Initiatives to Combat C.vber-Based Threats and Protect Retail Investors, supra 

note 34. 37 Enforcement Annual Report, supra note 33, at 6-11. 

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Ev:amination Priorities 

Earlier this year, our Oftiee of Compliance Inspections and Examinations (OCIE), led by 

Director Peter Driscoll, published its 2018 examination priorities with a continued focus on the 

SEC's commitment to protecting retail investors. 3

g In particular, OCIE will look closely at 

products and services offered to retail investors, the disclosures they receive about those 

investments and the fmancial services professionals who serve them. OCIE will also focus its 

attention on several other areas that present heightened risks, including: (l) compliance and risks 

in critical market infrastructure, such as exchanges and clearing agencies; (2) the continued 

growth of cryptocurrencies and initial coin offerings; (3) cybersecurity; and (4) anti-money 

laundering programs. 

OCIE conducts risk-based examinations of registered entities, including broker-dealers, 

investment advisers, investment companies, municipal advisors, national securities exchanges, 

clearing agencies, transfer agents and FINRA, among others. Our examination program is one of 

many areas where we have focused on doing more with our available resources. In FY 2017, 

OCIE completed nearly 2,900 examinations-an increase of more than 450 examinations from 

the prior year. As oflate May, OC!E has completed more than 1,700 examinations thus far in 

FY 2018, representing an increase of approximately nine percent over last year at this time. 

OCIE has also made significant strides to keep pace with the continued growth of 

investment advisers by increasing its examination of these registrants by more than 40 percent in 

FY 2017 over FY 2016 -to approximately 15 percent of all SEC-registered investment advisers. 

OC!E achieved this result through the reallocation of resources, advancements in OCIE's use of 

technology, targeted examination initiatives and other efficiencies. Although this increase in 

examination coverage has been a very positive step, more needs to be done to continue to 

increase investment adviser examination coverage levels, while at the same time conducting high 

quality risk-based examinations to ensure that our mission is met. We will also continue to strive 

to do more with existing resources to improve our risk-based examination program. 

One way to help us achieve our goals is through enhancing technological tools and 

continuing to use data analytics to allow our examination teams to more efficiently and 

effectively focus on higher risk areas and registrants. Leveraging technology helps our front line 

examiners analyze information better and faster than ever before. Some of our in-house 

developed tools scan arrays of data fields to help analyze and identify potentially problematic 

activities and registrants. These tools, and others employed in OCIE, have become essential to 

our continued advancement in identifying risks to investors and the markets, and effective 

deployment of examination resources to address these risks to have the greatest impact. 

38 U.S. Sec. & Exch. Comm'n, Off. of Compliance Inspections and Examinations, 2018 Nat'! Exam Program 

Examination Priorities (Feb. 7, 2018), mmilable at https://www.sec.gov/about,ofiicesJ0cie/national~examinationQIQ.gram-priorities-2018.pdf. 

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Equity Market Structure 

One of the few certainties of trading markets is that they continually evolve. The SEC's 

responsibility as the capital markets regulator is to ensure that our regulations continue to drive 

efficiency, integrity and resilience as technology changes. 39 Our Division of Trading and 

Markets, under the leadership of Brett Redfearn, has continued to address market structure 

issues. 

For example, in March, the Commission proposed a transaction fee pilot in National 

Market System (NMS) stocks, 40 which would provide the Commission with data to help us 

analyze the effects of exchange fees and rebates on order routing behavior, execution quality and 

our market structure generally. This issue has received much attention ever since Regulation 

NMS was implemented, and more recently, development of a pilot program on transaction fees 

was one of the SEC's Equity Market Structure Advisory Committee's (EMSAC's) most 

prominent recommendations. 41 In my view, the proposed pilot, if adopted, would lead to a more 

thorough understanding of these issues, which would help the Commission make more informed 

and effective policy decisions in the future, all to the benefit of retail investors. 

Another potential issue presented by the complex U.S. equity market structure is the need 

for improved public transparency about alternative trading system ( ATS) operations and the 

order-routing practices of brokers. Responding to the Commission's 2010 Concept Release on 

Equity Market Structure, a broad range of investors and market participants urged the SEC to 

address a lack of transparency in this area. The SEC published proposals to improve ATS 

transparency in 2015 and order routing transparency in 2016. I expect that the Commission will 

consider adopting final rules for the A TS initiative and the order routing initiative in the coming 

months. Both of these transparency initiatives highlight the traditional approach of empowering 

the marketplace to address problems through disclosure. Investors and market participants 

armed with more robust information about ATS operations and broker order routing practices 

should be able to make more informed decisions that reward those market participants who 

advance their customers' interests. 

Beyond these initiatives, the Commission and staff will continue to evaluate other equity 

market structure issues impacting investors, issuers and other market participations. While the 

EMSAC's charter expired in January 2018, the staff is organizing targeted roundtables among 

market participants on discrete equity market structure issues, which will feature experts 

representative of a broad diversity of viewpoints and will provide further opportunities for 

discussions about critical issues affecting our equity markets. In April, the staff held its first 

roundtable focused on market structure issues for thinly-traded exchange-listed securities-an 

important issue as smaller companies, the securities of which arc often relatively illiquid, play an 

essential role in our economy and may be the larger companies of tomorrow. Indeed, it is in 

39 Remarks at the Equity Market Structure Symposium Sponsored by the University of Chicago and the STA 

Foundation (Apr. 10, 2018), available at ]illQ;;://www.'i;'_<;,gQv/news/speech/spe"'l!:£1AY!On-2018-04-lQ. 40 See Press Release 2018-43, SEC Proposes Transaction Fee Pilotfor NMS Stocks (Mar. 14, 2018), available at 

https:/ /www .sec. gov/newslpress~ rel ease/20 18-4 3. 41 EMSAC, Recommendation for an Access Fee Pilot (July 8, 2016), available at 

https://www.sec.gov/:-;rotlight/emsac/recommcndation-access-fee-pilQ!JL.Qf. 

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these less active securities---where the challenges are greatest-that the potential benefits of a 

tailored market structure are most significant. We should continue to examine whether the 

current equity market structure-which is unifonn for all companies, large and small, liquid and 

illiquid-meets the needs of all types of companies. 

Fixed Income JJfarket Structure 

When I last testified before this Committee, I stated my belief that the time is right for the 

Commission to broaden its review of market structure to include our fixed income markets, 

where, historically, less attention has been focused relative to our equity markets. The fixed 

income markets are critical to our economy and Main Street investors. The U.S. corporate bond 

market has experienced significant growth since the early 2000s as issuance hit record highs and 

the increase in the value of corporate bonds outstanding outpaced the !,>rowth in U.S. equity 

market cap between 2006 and 2016. 42 Similarly, the municipal bond market continues to be a 

large and vital market. 

To address these issues, in November 2017, the Fixed Income Market Structure Advisory 

Committee (FIMSAC) was established to provide diverse perspectives on the structure and 

operations of the U.S. fixed income markets, as well as advice and recommendations on fixed 

income market structure. The FlMSAC has held two public meetings and recently provided a 

recommendation for a pilot program to study the market implications of changing the public 

dissemination regime for block-size trades in corporate bonds. 

FIMSAC members have prioritized their work around key topic areas in the corporate 

and municipal bond markets, including the extent to which the ctment pre-trade and post-trade 

transparency regimes are serving the markets, the implications of the recent growth in the 

number of registered mutual funds and ETFs active in our fixed income markets and the impact 

of increased electronic trading systems on these markets. I am acutely aware that our 

interconnected and constantly evolving financial markets produce a dynamic risk landscape. As 

technological advancements continue to have an increasing impact on the operations of iixed 

income markets, the work of the FIMSAC will assist our efforts to identify emerging market 

developments and risks and ensure that our regulations promote efficiency, transparency and 

resiliency, as well as investment opportunity. 

Consolidated Audit Trail 

Another important market stTUcture initiative is the implementation of the Consolidated 

Audit Trail (CAT). When implemented, the CAT will provide a single, comprehensive database 

allowing regulators to more efficiently and accurately track trading in equities and options 

throughout the U.S. markets. This enhanced ability will allow the Commission to better carry 

out its tripartite mission by improving our ability to reconstruct trading activity during a market 

of the Fixed Income Market Structure Advisory Committee (Jan. 

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disruption, which in turn would allow us to more quickly understand the causes behind such 

disruption and respond with measures to help detect and prevent a recurrence. 

Under the CAT NMS Plan, the self-regulatory organizations (SROs)-the national 

securities exchanges and FINRA-are responsible for developing and implementing the CAT 

and were required to begin reporting data to the CAT by November 15, 2017. The SROs missed 

that deadline, and they remain out of compliance with the CAT NMS Plan today. Progress is 

being made. But the process remains slow and cumbersome, due largely to what I believe are 

issues relating to governance and project management by the SROs. We are actively 

encouraging the SROs to set forth a timeline of detailed, objective and achievable milestones, 

clearly defined progress objectives for the SROs and Thesys (the plan processor) and a 

comprehensive description of the functionality that will be developed by specified dates. 

I know there are substantial concerns about the protection of investors' personally 

identifiable information (PII) that would be stored in the CAT. I have the same concerns and 

continue to make the protection of CAT data, particularly any form of PII, a paramount issue. 

Additionally, I have made it clear that the SEC will not retrieve sensitive information fi-om the 

CAT unless we need it and believe appropriate protections to safeguard it are in place. 

In November, I asked the Commission staff to evaluate the need for PII in theCA T. This 

evaluation includes consideration of, among other things, what PI! data elements need to be 

collected and retained in the CAT in order to achieve the regulatory goals of the CAT, and how 

PII in theCA T would be used by the SEC and the SROs. We arc considering alternatives to the 

current scope of PI! that would be collected and retained by the CAT under the current plan that 

can provide the Commission and the SROs with the market surveillance and reconstruction data 

needed to conduct our regulatory and enforcement functions. More generally, as I have stated 

before, I believe that the Commission, the SROs and the plan processor must continuously 

evaluate the approach to the collection, retention and protection ofPII and other sensitive data, 

as we continue to progress in the development and operation of the CAT. 

Security-Based Swaps 

With respect to our security-based swap regime, the staff of the Commission continues to 

work to develop recommendations for final rules required by Title VII of the Dodd-Frank Act. 

Additionally, the staff has been actively engaged with our counterparts at the Commodity 

Futures Trading Commission (CFTC) to find ways to further harmonize our respective rules with 

those of the CFTC, where appropriate, to increase effectiveness as well as reduce complexity and 

costs. Stat'fis initially focusing on a number of different rule sets, but more generally remains 

committed to consulting and coordinating to the benefit of our respective agencies and the 

markets and market participants we oversee. 

Improving the Investor Experience 

We live in a world that has become rich with information and ways to present it. The 

Division of Investment Management (Investment Management), led by Dalia Blass, is leading a 

long-term project to explore modernization of the design, delivery and content of fund 

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disclosures and other information for the benefit of investors. These initiatives are an important 

part of how the Commission can serve investors in the 21" century. Fund disclosures are 

especially important because millions of Americans invest in funds to help them reach personal 

financial goals, such as saving for retirement and their children's educations. As of the end of 

2017, over 100 million individuals representing nearly 60 million households, or 45 percent of 

U.S. households, owned funds. 43 

Earlier this month, the Commission issued a request for comment on enhancing 

disclosures by mutual funds, exchange-traded funds and other types of investment companies to 

improve the investor experience and to help investors make more informed investment decisions 

(Fund Disclosure RFC). 44 The Fund Disclosure RFC seeks input from retail investors, experts 

and others on how they use fund disclosures and how they believe funds can improve disclosures 

to aid investment decision-making. In order to facilitate retail investor engagement and 

comment on improving fund disclosure, the Commission has provided a short Feedback Flier on 

Improving Fund Disclosure, which can be viewed and submitted at www.sec.govitell-us. 

Earlier this month, the Commission also adopted a new rule that creates an optional 

"notice and access" method for delivering fund shareholder reports. 45 The reforms include 

protections for those without internet access or who simply prefer paper by preserving the ability 

to easily continue to receive reports in paper. Under the rule, a fund may deliver its shareholder 

reports by making them publicly accessible on a website, free of charge, and sending investors a 

paper notice of each report's availability by mail. To inform investors in advance of this new 

delivery method, there is an extended transition period so that the earliest a fund could begin to 

rely on the rule would be January 1, 2021. During this time, funds that choose to implement the 

new delivery method must provide prominent disclosures in prospectuses and certain other 

shareholder documents that will generally notify investors of the upcoming change in delivery 

format on a recurring basis for a period of two years. 

Modernizing Asset Management Regulations 

Investment Management is seeking ways to modernize and streamline rules under the 

Investment Company Act and Investment Advisers Aet, many of which were adopted decades 

ago and have not been amended, notwithstanding significant changes in practices and products in 

the asset management industry. 

Investment Management is working on a recommendation to replace the process of 

individually-issued exemptive relief for certain exchange-traded funds (ETFs) with a rule to 

create a consistent, transparent and efficient regulatory framework for ETFs and to facilitate 

greater competition and innovation among ETFs. This work is a high priority, as we have an 

ETF market of over $3.4 trillion operating under more than 300 individually issued exemptive 

43 Investment Company Institute, 20/8 Investment Company Fact Book, at ii (2018), available at 

bttps:/iwww.ici.org/pdf/2018 factbook.pQf. 44 See Investment Company Act Release No. 33113, Request for Comment on Fund Retail Investor Experience and 

Disclosure (June 51 2018), available at https://\vww.scc.uov,'rules/c\ther/201 Si33-10503.pdf. 45 See Securities Act Release No. 10506. Optional Internet Availability of Im·estment Company Shareholder Reports 

(June 5, 2018), available at https:liwww.sec.gov/rulesifinal/2018/33-10506.pd[. 

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orders. 46 It is not ideal for such an important segment of the asset management market to operate 

under so many individual exemptive orders. 

This May, the Commission also proposed rules in furtherance of the mandate of the Fair 

Access to Investment Research Act of 2017. 47 These proposed rules would promote research on 

mutual funds, ETFs, registered closed-end funds, business development companies (BDCs) and 

other covered investment funds. The proposal is intended to provide investors with greater 

access to research to aid them in making investment decisions and would reduce obstacles to 

providing research on investment funds by harmonizing the treatment of such research with 

research on other public entities. 

In 2016, the Commission adopted a new rule designed to promote effective liquidity risk 

management practices among open-end funds. As with any new rule, the staffs work did not 

end with adoption. After hearing from interested parties about the implementation of this 

requirement, in 2018, the Commission provided a delay for the classification elements of the rule 

and proposed targeted amendments to the aggregate public reporting requirements48 These 

amendments are designed to enhance the disclosure funds provide to investors about liquidity 

risks and reduce the risk that investors may be misled about the comparability of certain fund 

liquidity metrics. I anticipate that the Commission will soon consider adopting this proposaL 

Additionally, the Small Business Credit Availability Act directs the Commission to revise 

certain securities offering and proxy rules in order to harmonize existing registration and 

reporting requirements to allow BDCs to be treated in the same manner as public corporate 

issuers. The Economic Growth, Regulatory Relief, and Consumer Protection Act similarly 

directs the Commission to issue rules to allow certain registered closed-end funds to use the 

securities offering and proxy rules that are available to public corporate issuers. Investment 

Management is working to develop mlc recommendations related to these two bills. 

Dodd-Frank Act 

Almost eight years after the enactment of the Dodd-Frank Act, the Commission still has 

outstanding mandates. Earlier this year, I addressed how I plan to prioritize and tackle the 

remaining mandates from the Dodd-Frank Act. 49 Generally speaking, there arc four categories 

of Dodd-Frank Act rules remaining: 

(I) the remaining mles to stand-up the security-based swap regime, which I believe 

should be done holistically as a coherent package due in large part to the interrelated 

nature of the rules; 

46 This market figure is based on data obtained from Bloomberg; see also Investment Company Act Notices and 

Orders, Category Listing, arailahle at https:/1\V\Vw.sec.gov/ruleslicreleascs.shtml. 47 See Press Release 2018-92, SEC Proposes FAIR Act Rules to Promote Research Reports on Investment Funds 

(May 23, 2018), available at https:i/www.sec.gov/news/pre:ss:@£Jse/201B_:2.~-

48 See Press Release 2018-42. SEC Proposes Targeted Changes to Public Liquidi(v Risk Management Disclosure 

{!vfar. 14, 2018), available at https:/f\.vww.sec.gov/news/prcss-release/2018-4'>. 

'

9 See Opening Remarks at the Securities Regulation Institute (Jan. 22, 2018), available at 

https:i !v.,'ww.sec.gov/news/speechispeech-davton~0122l R. 

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(2) executive compensation rules for both public companies and SEC-regulated entities, 

for which, as a result of the complexity and scope of the existing executive 

compensation disclosure regime, as well as the nature of the mandates, I believe a 

serial approach is likely to be most efficient and best serve the SEC's mission; 

(3) specialized disclosure rules, such as resource extraction disclosure, which pose 

additional challenges, including how the SEC can meet its obligations under the 

Administrative Procedure Act and, in the case of resource extraction, the 

Congressional Review Act; and 

( 4) mandates, some of which overlap with examples above, for which market 

developments-including developments resulting from shareholder engagementhave, at least in part, mitigated some of the concerns that motivated the statutory 

requirements. 50 Our rulemaking priorities, as well as the rules themselves, should 

reflect these observable developments. 

All that said, it is the SEC's obligation to complete the rules mandated by Congress in 

Dodd-Frank, and I intend to do so. 

Investor Education and Outreach 

Beyond our rulemaking agenda, we are very focused on efforts to educate Main Street 

investors to help empower them to make informed investment decisions -- so that they have the 

best chance of protecting and growing their life's savings. We place great importance on inperson outreach efforts, including regional roundtable meetings with investors and events 

specifically targeting seniors. We also have a website at Investor.gov with a great deal of 

information geared specifically toward older Americans. And of course, our investor advocacy 

team at the SEC is just a phone call away for those Americans that don't have access to the 

Internet. 

My fellow Commissioners and I also participate in investor education and outreach 

efforts with military servicewomen and men, seniors and other retail investors. Last week, all 

five of us, along with staff from across the agency, were in Atlanta for an investor town hall 

where Main Street investors heard directly from, and shared feedback with, the Commission on 

issues important to them. 51 

Earlier this year, we launched a new online search tool designed to empower retail 

investors to make better-informed investment decisions, the SEC Action Lookup for 

Individuals---or SAL I. 52 SALI enables anyone to find out if the individual he or she is dealing 

5

° For example, several companies already have made public their policies regarding compensation clawbacks. 

Some of these policies go beyond what would be required under Dodd-Frank. We have seen a few companies 

attempt to claw back compensation from their executives under these policies. 51 See Investing in America: The SEC Comes to You, available at https:llwww.sec.gov/investing-america. 52 See Press Release 201 8-78, SEC Launches Additional Investor Protection Search Tool (May 2, 20 18), available 

at https://w\vw.sec.gov/news/press-rclease/2018-78. 

24 
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with on an investment has been sanctioned as a result of SEC enforcement actions, for both 

registered and unregistered individuals. It is part of our ongoing efforts to help investors 

research financial professionals who they are entrusting with their savings. SALI continues to be 

updated on an ongoing basis, making it an ever better resource for Main Street investors. 

Conclusion 

I would like to thank this Committee and its members, especially the Chairman and 

Ranking Member, for their continued support of the SEC, its mission and its staff. And most 

important, I thank you all for supporting our efforts to ensure that America's capital markets 

continue to provide quality, long-term investment opportunities that will enhance the lives and 

futures of our long term Main Street investors. 

I look forward to answering any questions you may have. 

25 
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CONGRESSMAN KEITH ELLISON Representing Minnesota's 5th District 
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Executive Summary 

If your boss made your annual salary in less than a single day, how would you feel? 

Demoralized? Disgusted? Many Americans are now learning how pay is shared (or not). 

For the first time in history, U.S. publicly held corporations are now required to report 

how much their CEO makes in comparison to the median salary of the other workers 

at the company. This new data source is the result of a hard-fought regulation 

mandated by Congress in the Dodd-Frank Wall Street Reform and Consumer 

Protection Act of 2010. 

The CEO-worker pay ratio is a dramatic indicator of our country's extreme economic 

divide. Beginning in the late 1970s, income inequality in the United States began to 

spiral upwards. However, this inequality was not driven by falling wages at the bottom 

of the income distribution. In fact, incomes for most Americans have been stagnant 

for four decades. Instead, this increase in income inequality was almost entirely driven 

by soaring compensation levels for the top 1% of income earners. Because about 

two-thirds of the top 1% of American households are headed by corporate executives, 

examining CEO pay is one key to understanding the takeoff in income inequality in the 

United States. 

Top income earners increasingly earn their income at the expense of everyone else. 

In the 1970s, the top 1% of families earned less than 10% of the total national income 

earned by all workers; today, their share is greater than 20%. Despite increases in 

worker productivity over the course of the last four decades, workers are simply not 

earning a larger share of the output they produce.' 

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CEO pay in the United States is also far out of line with CEO pay in other countries. 

According to a new Bloomberg analysis of twenty-two major countries. the United 

States' average gap between CEO and worker pay far outpaces that of other 

industrialized nations. The average U.S. CEO makes more than four times the average 

pay of a CEO abroad. 2 

To better understand how pay rates for CEOs of the largest companies in America 

compare to the salaries of workers in the middle of the pay scale, Representative 

Ellison requested that his staff compile and analyze the ratios of the first 225 Fortune 

500 companies to publicly disclose this information. These 225 companies combined 

employ more than 14 million workers and generate at least $6.3 trillion in revenue, 

which is more than a 25% of 2017's fourth quarter GDP3 This report finds: 

I -~ &,o105:1 

Pay ratios of Fortune 500 companies range from 2:1 at the low end to 

nearly 5,000:1 at the high end. The average CEO to median worker pay 

ratio among all 225 companies is 339:1. For historical context. in 1965, the 

average CEO made 20 times the average worker4 

In 188 of the 225 companies in our database a single CEO's pay could 

be used to pay more than 100 workers. A company's ratio can also 

be read as the number of "median" workers who could be hired for the 

amount their CEO makes annually. At McDonalds, for example, the CEO's 

annual salary could be used to pay the yearly wages of 3,101 workers 

making the median pay.5 

Median employees in all but six companies in our database would need 

to work at least one 45-year career to earn what their CEO makes in a 

single year. For example, it would take the median employee at PepsiCo 

who works for a full 45-year career (age 18 to 63) more than 14 full careers 

(650 years) to make what their CEO makes annually (650/45=14.4). 

The industry with the highest average ratio of CEO to worker pay is 

the consumer discretionary industry with a ratio of 977:1. This category 

includes companies that sell clothing and food such as McDonalds, Gap, 

and Kohl's. 

2 Executive Summary 
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Introduction 

In response to the 2008 financial crisis that crashed the global economy and 

destroyed trillions of dollars of Americans' retirement and housing wealth, Congress 

passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) 

of 2010. This comprehensive legislation put safeguards in place to ensure that Wall 

Street banks were no longer placing reckless bets that put our financial markets at 

risk. One of Congress's concerns related to the financial crash was that performancebased pay schemes for CEOs actually incentivized risk-taking and put consumers and 

investors at risk. To better understand corporate pay practices, Congress included 

a provision in Dodd-Frank that required publicly traded companies to report their 

CEO to median worker pay ratio6 Many institutional investors strongly supported 

this transparency reform, arguing that extreme pay gaps undermine enterprise 

effectiveness by lowering employee morale and productivity. 

However, due to a sluggish rulemaking process at the Securities and Exchange 

Commission (SEC), the rule was put off for years. In 2015, five years after DoddFrank was signed into law, Democratic lawmakers, including Representative Ellison,78 

increased their demands for action, sending multiple letters to SEC Chair Mary Jo 

White expressing their disappointment in the agency's slow rulemaking process9 

That same year, the American Federation of Labor and Congress of Industrial 

Organizations (AFL-CIO) filed a Freedom of Information Act (FOIA) request for all 

records regarding the SEC's decision to release its final rulew 

In August 2015, after sustained pressure from a wide range of advocates, including 

state treasurers and other institutional investors, labor unions, and lawmakers across 

the country, the SEC voted to finalize the pay ratio disclosure rule in a 3-2 decision, 

with all three Democratic SEC Commissioners voting in support of the rule and both 

Republican SEC commissioners voting in opposition." 

The Trump administration, Republicans in Congress, and the private sector have all 

attempted to kill this rule over the past year.12 In February of 2017, merely one month 

after President Trump was sworn-in, the SEC re-opened public comment for the rule 

and encouraged companies to weigh in with complaints about difficulties in calculating 

the pay ratioD The agency instead was flooded with letters in support of the rule. 14 By 

one count, they received over 14,000 letters in favor of the CEO pay rule and only 30 

in opposition.15 

Later that February, the Business Roundtable, a CEO-led lobby group, sent a letter to 

the Trump administration in support of repealing the CEO pay ratio rule.'6 The Business 

Roundtable's Chair is JPMorgan Chase CEO Jamie Dimon, who we now know made 

364 times his median employee's salary in 2017u Following the Business Roundtable 

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letter, the Treasury Department recommended that the SEC repeal the rule.' 8 In March 

2017, the Financial Services Roundtable, under then-President and CEO Tim Pawlenty, 

sent a letter to the SEC in support of further delaying the rule one year, to "allow time 

for Congress to review and repeal the mandate for the Pay Ratio Rule." 19 

Despite powerful attempts to kill this rule, popular will prevailed. The first CEO-median 

worker pay ratio disclosures have been submitted to the SEC. This report is the first 

comprehensive analysis of CEO pay ratios of large, publicly traded companies. 

4 Introduction 
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Methodology 

The SEC's rule requires that a CEO's compensation be identified in the Principal 

Executive Officer (PEO)'s "Total Compensation" column of a company's publiclyavailable Summary Compensation Table (SCT) for the last completed fiscal year in a 

company's annual proxy statement (DEF 14A).20 The terms "PEO" and "CEO" are used 

interchangeably here21 This column includes salary, bonus, stock awards, option awards, 

non-equity incentive plan compensation, and change in pension value and nonqualified 

deferred compensation earnings. If a company has two or more subsequent PEOs 

in a single year, the company may add the multiple PEOs' compensation together22 

Alternatively, a company may annualize one of their PEO's salaries 23 For example, if 

a PEO worked at a company for six months and made $1,000,000 a company could 

report the PEO's annualized compensation as $2,000,00024 

For consistency's sake, calculating the annual total compensation of a PEO for the 

purpose of determining the pay ratio must "reflect the same approach" 25 used to 

determine the median employee's salary. The same approach only needs to be 

applied to the median employee, not all employees at the company. 

The final pay ratio rule itself, and the SEC-issued interpretive guidance on the rule,"6 

allow for companies to calculate median employee salary using a number of different 

methods, including by using a statistical sample of the company's workforce. To 

determine its CEO-median employee pay ratio, a company must identify a single 

employee whose compensation is at the midpoint of all employees in tl1e sample who 

are not the company's CE027 

Although companies are required to report their ratios annually, a company can 

determine its median employee's compensation once every three years if it 

"reasonably believes" 28 that there has been no change in the company's employee 

population, and if the company's employee compensation arrangements have not 

changed significantly from the previous year. An "employee" is defined as a person 

employed at any date of the company's choosing in the last three months of the 

company's last completed fiscal year. A company must identify the date used 

to determine its median employee30 Part-time, temporary, seasonal, and full-time 

employees are required to be counted. 31 Annualization is only permitted for full-time 

employees who have not worked the full fiscal year32 

Industry groups, particularly the National Retail Federation, pushed hard, and continue 

to push33 the SEC to allow companies to fully exclude part-time and seasonal workers 

in the calculation of median worker pay or allow firms to make their pay appear higher 

than it actually is by converting these precarious jobs into full-time equivalents. The 

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SEC refused, 34 arguing that including actual pay figures "is more reflective of the actual 

composition of the registrant's workforce and thus furthers the purpose of providing 

shareholders with useful information about a registrant's overall compensation practices." 

A company's median employee can be identified by using "reasonable estimates."35 

Companies are required to apply the same compensation measure across all 

employees. If a company identifies characteristics in their median employee's salary 

that would skew their pay ratio, like a large one-time bonus, the company "may 

substitute another employee with substantially similar compensation to the original 

identified median employee based on the compensation measure it used to select the 

median employee." 36 ln identifying the median employee, companies may also make 

cost of living adjustments (COLA) to employee compensation when the employees live 

in a jurisdiction other than the one where the CEO resides. 37 

Although the rule requires both U.S. and non-U.S. employees to be counted, it 

allows a company to exempt non-U.S. employees where they make up five percent 

or less of the total number of employees38 lf a company's total number of non-U.S. 

employees exceeds five percent of its total employees, that company may exclude 

up to five percent of its total non-U.S. employees. If a company excludes any nonU.S. employees, it needs to disclose the number of employees being excluded from 

each jurisdiction, and which jurisdictions are excluded.39 Additionally, it must disclose 

the total number of U.S. and non-U.S. employees working for it. regardless of any 

exemption. So, in order to exempt non-U.S. workers from its pay ratio reporting, 

a company must disclose additional data regarding their overseas employees, 

enhancing the transparency benefits of the regulation40 

Companies may present supplemental ratios and information in addition to the required 

ratio if they wish to do so, such as in cases where a large percentage of overseas 

employees creates a significantly different ratio. However, this is not required. If a 

6 Methodology 
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company presents additional ratios or supplemental information, it must be identified as 

such, and cannot be misleading or more prominently displayed than the required ratio41 

Third-party contractors and leased workers may be excluded if they are employees of 

companies that are not "consolidated subsidiaries."42 If the reporting company owns 

less than 50% of outstanding voting shares of the third-party company, its contractors 

or leased employees may generally be excluded43 According to the SEC, excluding 

these workers is appropriate because their pay is determined outside the company 

itself44 

the Data 

These data were compiled by Bloomberg from the SEC's EDGAR database45 We 

have limited our data to the first 225 Fortune 500 companies to file with the SEC. 

Bloomberg's reported ratios are rounded to the nearest integer. For example, 

Bloomberg has reported Berkshire-Hathaway's CEO pay ratio as "2,"46 while the 

calculated ratio is "1.87."47 To check for discrepancies, we have included a "calculated 

ratio" tab in our full database online, using the calculated ratio of median employee 

salary and CEO pay as reported by Bloomberg. 

In some cases, a company's ratio as reported by Bloomberg and our "calculated ratio" 

differ. This could be due to a company changing the CEO's pay from the SCT to be 

consistent with the measures used to calculate their median employee salary. They 

could also be due to rounding or reporting error by Bloomberg. The companies that 

fall into this category in our database are WW. Grainger, Alaska Air, American Financial 

Group, Abbott Laboratories, and Archer Daniels Midland. 

The "employee population" column is compiled from companies' 10k filings. The total 

employee population that is used by companies in their proxy statements to calculate 

CEO to median employee pay ratio may differ. For instance. ManpowerGroup uses 

an employee pool that is substantially larger than the number of full-time employees 

reported in its 101<"8 filing to calculate its median employee to CEO pay ratio. 

frmn the Ru]e 

According to the SEC, approximately 3,571 companies are required to file ratio 

disclosures49 Small reporting companies and companies defined as "emerging growth" 

under the Jumpstart Our Business Startups Act (JOBS Act) [15 U.S. C. 78c(a).] are 

exempted from filing a pay ratio disclosure. 5° To meet the "emerging growth" threshold, 

the company ("issuer") needs to have had total annual gross revenues of less than $1 

billion in its most recently completed fiscal year. Snap Chat, for example, is considered 

an emerging growth company and therefore did not have to report a CEO-worker pay 

ratio this year, despite the fact that the firm's CEO, Evan Spiegel, made $638 millions' 

Companies based overseas are not required to file a pay ratio disclosure. 

REWARDING OR HOARDING? An Examination of Pay Ratios Revealed by Dodd-Frank 7 
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Findings 

database is Warren Buffett's 

The company with the largest 

ro'm"''"''v~ with a ratio of 4,987:1. 

The other companies in our database with ratios of over 1,000:1 are Mattei, McDonald's, 

Gap, Live Nation Entertainment, Yum China Holdings, ManpowerGroup, Hanesbrands, 

Liberty Interactive, Yum! Brands, VF, Ross Stores, Kohl's, and Walmart. The company 

with the highest-paid CEO is the event promoter and venue operator, Live Nation 

Entertainment, whose CEO made $70,615,760 in 2017. Berkshire Hathaway's CEO, 

Warren Buffett, the country's third-richest man, had the lowest pay in 2017 of any CEO 

in our database. He made $100,000 last year. The company with the highest-paid 

median worker in our database is Valero Energy, with annual earnings of $192,837. The 

company with the lowest-paid median worker is Yum China Holdings, whose median 

employee makes only $3,396 per year. Their median employee's salary is so low 

because nearly all of their workers are in China, where worker pay is significantly lower 

than the United States. Additionally, roughly 60% of their 420,000 crewmembers are 

part-time and hourly workers-'2 

with 

Mattei $31,275,289 $6,271 4,987 28,000 Consumer Discretionary 

McDonald's $21,761,052 $7,017 3,101 235,000 Consumer Discretionary 

Gap $15,587,186 $5,375 2,900 135,000 Consumer Discretionary 

Live Nation $70,615,760 $24,406 2,893 8,800 Consumer Discretionary Entertainment 

Yum China Holdings $9,571,017 $3,396 2,818 450,000 Consumer Discretionary 

ManpowerGroup $11,987,783 $4,828 2,483 29,000 Industrials 

Hanesbrands $9,581,985 $5,237 1,830 67,200 Consumer Discretionary 

Uberty Interactive $47,809,756 $26,407 1,810 N/A Consumer Discretionary 

Yum Brands $12,368,607 $9,111 1,358 60,000 Consumer Discretionary 

VF $13,736,655 $10,151 1,353 69,000 Consumer Discretionary 

Ross Stores $12,400,574 $9,437 1,314 82,700 Consumer Discretionary 

Kohl's $11,339,206 $8,976 1,264 33,000 Consumer Discretionary 

REWARDING OR HOARDING? An Examination of Pay Ratios Revealed by Dodd-Frank 9 
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ComP!,lny Name 

Walmart $22,791,276 $19,177 1,188 2,300,000 Consumer Staples 

Marathon Petroleum $19,670,807 $21,034 935 43,800 Energy 

Burlington Stores $8,901,891 $11,662 763 40,000 Consumer Discretionary 

Foot Locker $6,402,450 $8,554 748 15,141 Consumer Discretionary 

Avery Dennison $8,959,468 $12,016 746 30,000 Materials 

AIG $44,738,581 $64,186 697 49,800 Financials 

Am phenol $8,165,544 $12,179 670 70,000 Technology 

Dollar General $8,806,409 $13,387 658 129,000 Consumer Discretionary 

Fidelity National $29,141,610 $44,556 654 53,000 Technology Information Services 

PepsiCo $31,082,648 $47,801 650 263,000 Consumer Staples 

Omnicom Group $23,959,325 $40,230 596 77,300 Consumer Discretionary 

CBS $69,351,540 $116,654 595 12,700 Consumer Discretionary 

Universal Health $21,630,861 $39,978 541 76600 Healthcare Services 

Robert Half $8,799,147 $17,340 507 17,200 Industrials International 

Leucadia National $21,787,285 $44,584 489 12,700 Financials 

Newell Brands $15,257,808 $32,010 477 49,000 Consumer Discretionary 

Lowe's $11,208_658 $23,905 469 310,000 Consumer Discretionary 

Johnson & Johnson $29,802,564 $66,000 452 134,000 Healthcare 

L Brands $5,695,577 $12,673 449 25200 Consumer Discretionary 

S&P Global $10,719,216 $24,714 434 20,000 Financials 

Illinois Tool Works $17,109,870 $40,738 420 50,000 Industrials 

Mondelez $17,304,919 $42,893 403 83,000 Consumer Staples International 

Wyndham 

Worldwide $15,094,362 $37,934 398 39,200 Consumer Discretionary 

10 Findings 
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A company's CEO-to-median employee pay ratio can also be interpreted 

as the number of median employees a company can pay with their 

CEO's salary. At the vast majority of companies in our database, you 

could pay 100 median employees or more with a CEO's annual pay. 

At over one-third of the companies in our database, you could pay between 100-199 

median employees with a single CEO's pay. A little less than half the CEOs in our 

database are paid in one year the amount it would take to employ between 200 and 

4,987 median employees. 

16% 36% 20% 16% 12% 

of companies 

in database 

In all but six companies in our database, it would take the median 

employee more than one full career to make what their CEO makes 

in a single year. 

For this calculation, we assume that a full career is 45 years of work (ages 18-63). 

At CVS Health, for example, the median worker would need to be on the job for 

319 years, or more than seven full careers, to make their CEO's annual salary. Old 

Republic International, Berkshire Hathaway, Host Hotels and Resorts, salesforce. 

com, XPO Logistics, and CMS Energy are the only six companies with CEOs who 

make less than a single career's worth of work for their median employee. 

Iiow many careers v;muld a median ""'"'"" 

CEO's annual 

Mattei 

MCDonald's 

II ................. 54 

Manppwei"Group 

HaneSbrands 

'l"uml!rands 30 ----30 

Ross Stores 

Kohl'S 

Walmal't 

29 

28 

26 

55 

41 

need to work earn a 

69 

111 

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mli 

ll.s, 105:1 

Pay ratios vary by industry sector. The sector with the highest average 

CEO to median worker pay ratio is Consumer Discretionary, which 

includes companies like McDonald's, Gap, and Mattei. 

According to the financial services firm Vanguard, "Consumer Discretionary" is defined 

as "companies that manufacture products and provide services that consumers 

purchase on a discretionary basis."55 The sector with the lowest ratio is Utilities, which 

includes companies like CenterPoint Energy and Exelon. Vanguard defines utilities 

as "companies that distribute electricity, water, or gas, or that operate as independent 

power producers." 56 It is possible that since the Consumer Discretionary industry 

employs so many part-time workers, their ratios are the higl1est. It is also possible 

that in the Energy, Real Estate and Utilities industries, the sectors with the smallest 

ratios, the tendency to hire more third-party contractors allows companies to report an 

artificially low ratio, since the pay ratio rule allows for the exclusion of such workers. 

For example, Newmont Mining, which reported the relatively low ratio of 114:1, 

states on its website that the company "has 30,000 employees and contractors."57 

However, when reporting its pay ratio, the company is allowed to state that it only has 

'approximately 12,500 employees."58 Host Hotels & Resorts only reports having 205 

employees, despite owning 93 hotels, with roughly 52,000 rooms in total. 59 

If companies were required to report third-party contractors, the average ratio 

between CEO and median employee could be much higher. 

'\Vhat is the average CEO to median worker pay ratio sector? 

Consumer Discretionary (35) 977:1 

Consumer Staples £141 

12 Findings 
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Policy Solutions 

Academics and policymakers have come up with a number of ideas that could help 

curtail skyrocketing CEO pay and make our nation more equal. The most recent 

example comes from Portland, Oregon, where in 2016 the city council created a tax 

penalty for publicly traded companies with pay gaps higher than 100:1. The tax penalty 

increases proportionately for pay gaps higher than 100:1. This new ordinance went 

into effect this year. Several other city and state governments are looking at similar 

legislation60 

Other policymakers, including state legislators in Rhode Island, are considering an 

approach that would give companies with low CEO to worker pay ratios preferential 

treatment when bidding for government contracts. The President has broad 

discretion to set policies for federal contractors. During President Obama's tenure 

his administration began requiring government contractors to pay a minimum wage 

of $10.10 (the federal minimum wage is only $7.25). The federal government also 

denies contracts to companies that contribute to racial and gender inequality through 

discrimination in their hiring and employment practices. Federal corporate subsidy 

policies could also be reformed to encourage companies to narrow their gaps. 

Another policy option includes increasing taxes on top incomes. Prior to the Reagan 

administration, top marginal tax rates were more than 70%, and, not surprisingly, 

executive compensation levels were substantially lower. CEOs had no incentive 

to demand sky-high pay, since much of it would be taxed away anyway. Some 

economists have suggested that the optimal tax marginal rate for U.S. incomes today 

would be about 83%61 Unfortunately, the recently passed Tax Cuts and Jobs Act of 

2017 moves in the opposite direction, lowering the current top tax rate of 39.6% to 37% 

for tax years beginning in 2018. 

REWARDING OR HOARDING? An Examination of Pay Ratios Revealed by Dodd-Frank 13 
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Conclusion 

Before these data were published, we knew that on average, the CEO-worker pay gap 

had grown since the 1970s, and that the gap between CEO and median worker pay 

was severe. These new data give us a much clearer picture as to which corporations 

are sharing the wealth and which are not. Astoundingly, they tell us that that some 

Chief Executives make up to thousands of times what over half their employees 

make and that pay ratios are particularly large in the consumer discretionary industry. 

Additionally, the ability for companies to exclude third-party contractors, which 

sometimes count for over half of a company's workforce, suggests that the true level of 

inequality between CEO pay and median worker pay is even higher than we observe 

in this report. This report demonstrates an urgent need for lawmakers to enact policies 

to address the historically severe gap between CEO and worker pay. 

14 Conclusion 
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Appendixt 

l"ull database 

Reported 

Ratio f::IJ Employees 

Mattei $31,275,289 $6,271 4,987 28,000 

McDonald's $21,761,052 $7,017 3,101 235,000 

Gap $15,587,186 $5,375 2,900 135,000 

Live Nation Entertainment $70,615,760 $24,406 2,893 8,800 

Yum China Holdings $9,571,017 $3,396 2,818 450,000 

ManpowerGroup $11,987,783 $4,828 2,483 29,000 

Hanesbrands $9,581,985 $5,237 1,830 67,200 

Liberty Interactive $47,809,756 $26,407 1,810 NIA 

Yum Brands $12,368,607 $9,111 1,358 60,000 

VF $13,736,655 $10,151 1,353 69,000 

Ross Stores $12,400,574 $9,437 1,314 82,700 

Kohl's $11,339,206 $8,976 1,264 33,000 

Walmart $22,791,276 $19,177 1,188 2,300,000 

Marathon Petroleum $19,670,807 $21,034 935 43,800 

Burlington Stores $8,901,891 $11,662 763 40,000 

Footlocker $6,402,450 $8,554 748 15,141 

Avery Dennison $8,959,468 $12,016 746 30,000 

AIG $44,738,581 $64,186 697 49,800 

Amphenol $8,165,544 $12,179 670 70,000 

Dollar General $8,806,409 $13,387 658 129,000 

Fidelity National information Services $29,141,610 $44,556 654 53,000 

PepsiCo $31,082,648 $47,801 650 263,000 

Omnicom Group $23,959,325 $40,230 596 77,300 

CBS $69,351,540 $116,654 595 12,700 

Universal Health Services $21,630,861 $39,978 541 76600 

Robert Half International $8,799,147 $17,340 507 17,200 

Leucadia National $21,787,285 $44,584 489 12,700 

Newell Brands $15,257,808 $32,010 477 49,000 

Lowe's $11,208,658 $23,905 469 310,000 

Johnson & Johnson $29,802,564 $66,000 452 134,000 

L Brands $5,695,577 $12,673 449 25200 

S&P Global $10,719,216 $24,714 434 20,000 

Illinois Tool Works $17,109,870 $40,738 420 50,000 

Mondelez International $17,304,919 $42,893 403 83,000 

Wyndham Worldwide $15,094,362 $37,934 398 39,200 

REWARDING OR HOARDING? An Examination of Pay Ratios Revealed by Dodd-Frank 15 
92 


mcarroll on FSR431 with DISTILLERInsert offset folio 43 here 31492.043

Company Name CEO f'<\)( 

MGM Resorts International $14,579,720 $36,785 396 51,000 

Cognizant Technology Solutions $12,478,392 $31,998 390 260,000 

PPG Industries $14,249,861 $37,307 382 47,200 

Centene $25,269,468 $66,600 379 33700 

Hershey $10,600,386 $28,173 376 15,360 

Citigroup $17,814,131 $48,249 369 209,000 

AT&T $28,720,720 $78,437 366 254,000 

J.P. Morgan Chase $28,320,175 $77,799 364 252,539 

Stanley Black & Decker $16,236,936 $45,449 357 57,765 

Whirlpool $7,082,024 $19,906 356 92,000 

Corning $16,868,575 $47,410 356 46,200 

Baxter International $14,933,664 $42,008 355 47,000 

Bank of New York Mellon Corp. $19,837,535 $55,970 354 52,500 

Human a $19,768,525 $57,385 344 47,900 

Murphy USA $5,777,908 $16,831 343 5,400 

Honeywell International $16,753,438 $50,296 333 131,000 

Kimberly-Clark $16,209,534 $48,866 332 42000 

Advance Auto Parts $6,127,997 $18,460 329 40,000 

American Express $18,611,373 $56,873 327 55,000 

Thermo Fisher Scientific $22,275,176 $68,732 324 70,000 

3M $20,494,285 $63,338 324 91,536 

Sherwin-Williams $13,513,194 $41,827 323 52,695 

CVS Health $12,266,076 $38,372 320 160,000 

Crown Holdings $11,939,960 $37,800 316 24,000 

Pfizer $27,913,775 $89,206 313 90,200 

Aflac $22,830,984 $76,089 300 11,318 

UnitedHealth Group $17,404,604 $58,378 298 260,000 

Western Union $9,726,400 $33,278 292 11,500 

Wells Fargo $17,564,014 $60,446 291 262.700 

Laboratory Corp. of America $11,646,254 $41,609 280 60,000 

Cigna $17,595,792 $63,010 279 46,000 

Tractor Supply $6,701,831 $24,108 278 14,000 

Freeport-McMoRan $18,396,037 $66,490 277 25,200 

Archer Daniels Midland $15,875,055 $57,345 276 31,300 

Cummins $16,387,661 $59,682 275 58,600 

PayPal Holdings $19,218,634 $70,228 274 18,700 

UPS $14,619,684 $53,443 274 454,000 

Auto Nation $12,186,944 $45,543 268 26000 

Prudential Financial $27,120,220 $101,067 268 49,705 

lnterpublic Group $16,883,818 $63,936 264 50,200 

Anthem $18,578,802 $70,867 262 56,000 

16 Appendix 1 
93 


mcarroll on FSR431 with DISTILLERInsert offset folio 44 here 31492.044

Capital One Financial $16,175,770 $62,037 261 49,300 

American Tower $13,119.417 $50,384 260 4,752 

Abbott laboratories $16,784,892 $75,679 251 99,000 

Bank of America Corp. $21,791,812 $87,115 250 209,376 

Univar $15,245,285 $60,904 250 8600 

BorgWarner $14,085,523 $57,127 247 29,000 

Ecolab $14,383,229 $60,556 238 48,400 

Dover $9,952,918 $41,943 237 29,000 

State Street Corp. $19,497,361 $82,760 236 36,643 

Aetna $18,750,816 $79,720 235 47,950 

United Technologies $17,027,493 $72,433 235 205,000 

Huntsman $16,816,057 $72,506 232 10,000 

International Paper $19,446,293 $84,701 230 56000 

Coca-Cola $10,874,694 $47,312 230 61,800 

Ameriprise Financial $23,914,109 $107,082 223 13,000 

Assurant $9,274,743 $41,853 222 14,750 

lincoln National $14,963,035 $68,299 219 5,000 

General Dynamics $21,501,429 $98,563 218 98,600 

Quest Diagnostics $10,368,835 $48,194 215 45,000 

Merck $17,643,087 $82,173 215 69,000 

NCR $12,435,018 $58,506 213 34000 

CenturyLink $14,715,560 $69,252 212 51,000 

Intel $21,544,700 $102,210 211 102,700 

Texas Instruments $16,573,019 $78,951 210 29,714 

Dr Pepper Snapple Group $8,921,147 $42,689 209 21000 

Stryker $14,005,086 $66,901 209 33,000 

Goodyear Tire & Rubber $10,845,759 $52,704 206 64000 

U.S. Bancorp $11,960,654 $58,269 205 72,402 

Regions Financial $12,733,913 $63,174 202 21,714 

PNC Financial Services Group $13,917,986 $69,190 201 50,358 

Reliance Steel & Aluminum $11,357.647 $51,172 199 14,900 

BlackRock $27,743,233 $141,987 195 13,900 

American Airlines Group $12,175,486 $62,394 195 126,600 

Jones lang LaSalle $9,219,001 $48,000 192 82,000 

Morgan Stanley $24,509,722 $127,863 192 57,633 

AES $9,354,683 $49,229 190 N/A 

Nordstrom $5,634,701 $30,105 187 72,500 

Lockheed Martin $22,866,843 $123,231 186 100,000 

Kellogg $7,344,238 $40,163 183 33,000 

ChevroR $24,781,568 $137,849 180 51,900 

Sealed Air $10,900,704 $61,031 179 15,000 

REWARDING OR HOARDING? An Examination of Pay Ratios Revealed by Dodd-Frank 17 
94 


mcarroll on FSR431 with DISTILLERInsert offset folio 45 here 31492.045

Seaboard $5,606,959 $32,073 175 11800 

Duke Energy $21,415,936 $122,365 175 29,060 

Raytheon $24,883,871 $144,589 172 64,000 

Bristol-Myers Squibb $18,687,123 $110,280 169 23,700 

Penske Automotive Group $6,807,491 $40,409 168 26000 

Eastman Chemical $14,489,656 $86;728 167 14,000 

Owens Corning $10,293,191 $62,069 166 17,000 

United Rentals $12,828,962 $77,127 166 14800 

TreeHouse Foods $7,815,396 $47,382 165 13,489 

Goldman Sachs Group $21,995,266 $135,165 163 36,600 

Sun Trust Banks $9,592,062 $60,477 159 23,785 

Ball $12,932,654 $82,329 157 18,300 

Celanese $11,919,628 $75,928 157 7,592 

General Electric $9,000,603 $57,211 157 313,000 

Packaging Corp. of America $10,658,595 $68,888 155 14600 

Unum Group $9,683,946 $62,650 155 9,400 

Citizens Financial Group $8,549,989 $55,118 155 17,594 

NextEra Energy $18,811,693 $121,355 155 14,000 

Travelers Cos. $15,244,942 $99,004 154 30,900 

Fluor $10,253,787 $67,580 152 56,706 

American Financial Group $9,772,850 $64,339 151 6,700 

Fiserv $10,422,743 $69,205 151 24,000 

Weyerhaeuser $11,447,707 $75,893 151 9300 

BB&T Corp. $12,692,776 $84,550 150 36,484 

Charles Schwab $14,348,737 $98,152 146 17,600 

WeiiCare Health Plans $11,344,738 $78,139 145 8,900 

Alliance Data Systems $10,882,813 $75,232 145 20,000 

Fifth Third Bancorp $8,688,292 $60,078 145 18,125 

AbbVie $22,625,243 $157,347 144 29,000 

Hartford Financial Services Group $13,115,285 $91,865 143 16,400 

eBay $17,590,833 $122,891 143 14,100 

Verizon $17,947,316 $126,623 142 155,400 

Spirit AeroSystems Holdings $9,907,398 $70,452 141 13,700 

Genuine Parts $4,919,486 $35,415 139 48,000 

Ryder System $6,137,757 $44,344 138 36100 

Phillips 56 $23,677,209 $170,988 138 14,600 

ConocoPhillips $21,864,670 $158,943 138 11,400 

Sempra Energy $18,039,051 $134,571 134 16,046 

Netflix $24,377,499 $183,304 133 5,400 

Nucor $12,090,472 $90,635 133 25,100 

Norfolk Southern $11,955,417 $91,791 130 27,110 

18 Appendix 1 
95 


mcarroll on FSR431 with DISTILLERInsert offset folio 46 here 31492.046

Alleghany $9,647,362 $74,782 129 4402 

Eversource Energy $15,915,461 $124,959 127 8084 

Exelon $14,857,859 $117,176 127 34,621 

Amgen $16,889,789 $132,930 127 20,800 

Arthur J. Gallagher $7,886,491 $62,441 126 26,783 

Chesapeake Energy $14,903,906 $118,761 125 3,200 

Alcoa $10,720,123 $88,740 121 14,600 

Principal Financial $11,985,735 $100,355 119 14,895 

KeyCorp $8,146,470 $68,875 118 18,415 

Eli Lilly $15,845,991 $134,003 118 40,655 

Valero Energy $22,532,260 $192,837 117 10,015 

Quanta Services $8,763,657 $75,554 116 32,800 

Alaska Air Group $5,734,862 $49,664 116 23,156 

United Continental Holdings $9,561,134 $83,122 115 89,800 

Voya Financial $10,989,072 $95,399 115 6,300 

Southern $15,702,228 $138,000 114 31,344 

Altria Group $15,719,769 $137,763 114 8,300 

Newmont Mining $13,827,445 $121,008 114 12547 

WESCO International $6,962,755 $61,562 113 9,000 

WEC Energy Group $13,642,237 $120,223 113 8129 

W.W. Grainger $6,966,359 $63,577 113 24,400 

Xerox $9,505,048 $85,276 111 35,300 

Occidental Petroleum $12,696,788 $115,552 110 11,000 

Exxon Mobil $17,495,119 $161,562 108 69,600 

Anadarko Petroleum $16,959,896 $160,251 106 4400 

Entergy $13,158,220 $124,050 106 13,504 

Realogy Holdings $6,038,389 $57,295 105 11,800 

American Electric Power $11,530,461 $113,084 102 17,666 

Chemours $9,944,171 $98,086 101 7000 

Henry Schein $7,226,785 $71,304 101 22,000 

World Fuel Services $5,508,381 $55,741 99 5,000 

Apache $14,433,373 $145,954 99 3,356 

Consolidated Edison $16,047,911 $168,028 96 15,591 

Gilead Sciences $15,438,459 $165,007 94 10,000 

Southwest Airlines $7,560,200 .$81,177 93 56,100 

Olin $1,079,700 $78,838 92 6,400 

Kratt Heinz $4,194,179 $46,006 91 39,000 

FirstEnergy $15,281,885 $170,299 90 15,617 

Zil)lmer Biomet Holdings $5,390,947 $61,496 88 18,200 

Nvidia $12,993,532 $147,640 88 8,191 

Williams $10,620,236 $124,648 85 5,425 

REWARDING OR HOARDING? An Examination of Pay Ratios Revealed by Dodd-Frank 19 
96 


mcarroll on FSR431 with DISTILLERInsert offset folio 47 here 31492.047

Median Reported 

Worker Pay Ratio (:1) Employees 

Ally Financial $8,848,062 $105,515 84 7900 

CenterPoint Energy $8,024,525 $96,573 83 8000 

CDW $6,987,003 $85,701 82 8726 

Public Service Enterprise Group $10,621,115 $132A80 80 12,945 

NRG Energy $9,049,662 $112,446 80 5490 

United States Steel $5,618,557 $72,635 77 29,200 

HollyFrontier $9,907,151 $131,612 75 3,522 

M&T Bank Corp. $4,167,972 $57,571 72 16,794 

EOG Resources $10,573,685 $146,016 72 2664 

Ameren $8,080,790 $122,003 66 8615 

Edison International $9,794,301 $157,112 62 12,521 

PG&ECorp. $8,597,220 $140,263 61 23000 

PBF Energy $8,923,488 $149,953 60 3,165 

Huntington Ingalls Industries $7,974,179 $132,546 60 38,000 

Amazon.com $1,681,840 $28,446 59 566,000 

Markel $2,369,922 $41,285 57 15,600 

Cincinnati Financial $4,978,956 $91,647 54 4,925 

Oneok $5,608,945 $105,847 53 2,470 

Targa Resources $5,321,895 $103,207 52 2130 

NVR $3,538,600 $69,147 51 5200 

CMSEnergy $6,862,295 $167,636 41 7,822 

XPO Logistics $1,384,021 $36,885 38 95,000 

Old Republic International $2,644,635 $71,948 37 8,700 

Host Hotels & Resorts $6,224,265 $179,574 35 205 

salesforce.com $4,653,362 $155,284 30 29,401 

Berkshire Hathaway $100,000 $53,510 2 377,000 

20 Appendix 1 
97 


mcarroll on FSR431 with DISTILLERInsert offset folio 48 here 31492.048

Appendix2 

Sedor Definitions frum 

Consumer Discretionary 

Companies that manufacture products and provide services that consumers purchase 

on a discretionary basis. 

Consumer Staples 

Companies that provide direct-to-consumer products that, based on consumer 

purchasing habits, are typically considered nondiscretionary. 

Energy 

Companies involved in the exploration and production of energy products, such as oil, 

natural gas, and coal. 

Financiafs 

Companies that provide financial services. 

Health Care 

Companies involved in providing medical or health care products, services, technology, 

or equipment. 

Industrials 

Companies that convert unfinished goods into finished durables used to manufacture 

other goods or provide services. A product which lasts 1-3 years is considered 

'durable." 

Information Technology (Technology) 

Companies that serve the electronics and computer industries or that manufacture 

products based on the latest applied science. 

Materials 

Companies that extract or process raw materials. 

Telecommunication Services 

Companies that provide telephone, data-transmission, cellular, or wireless 

communication services. 

Utilities 

Companies that distribute electricity, water, or gas, or that operate as independent 

power producers. 

REWARDING OR HOARDING? An Examination of Pay Ratios Revealed by Dodd-Frank 21 
98 


mcarroll on FSR431 with DISTILLERInsert offset folio 49 here 31492.049

Endnotes 

Anderson, S. "Policy Brief: The CEOWorker Pay Gap." Institute for Policy Studies. 

(February 18). Online at: lltlPs:f/in<;;qggJIJY,QJQ/ 

wo:coDtf'nt/uoloi'JcJs/:Z.QJ8/Q2/c.t::.o:wor.k"r= 

PilY:Iillio:PolicY:biif'f.oQf. 

2 Melin, A. "CEOs in US, India earn the most 

compared with average workers." Bloomberg. 

(December 28, 2017). Online at: bttos://\YV'w. 

l;lloombf'ro.corn/n~ws/f!rticle_sL:ZoJZ:J:;!:£$/ 

ci'?os:ill:Y:s:iD<:Jii'l:i'?i'lm:tlle-mos.i:comPi'lrs:<:J: 

W.itQ:!'lYet:!'loEC:WoiteLs3 "Gross Domestic Product (GDP)." Federal 

Reserve Bank of St. Louis. (2018). Online at: 

.btJPs!/frf'<:J.s!Jouisf<;;qom/s<;_ri<;_s/GQP. 

4 Mishel, L "Report: CEO pay remains high 

relative to the pay of typical workers and 

high-wage earners." Economic Policy Institute. 

p. 2. (July 20, 2017). Online at: b!los:i/ww_w.eoL 

oro/filesiQ<:Jf!1:3Q:35.4 pdf. 

5 Ibid. 

6 "Timeline: the pay ratio regulation's long 

and bumpy road." Public Citizen. (February 

13, 2018). Online at: https://www.citizen.org/ 

media/press-releases/ceo-worker-pay-ratiodata-being-revealed-first-time. 

7 "Letter to SEC Chair Mary Jo White." 

Congressman Keith Ellison. (March 18. 

2015.). Online at: https:l/ellison.house.gov/ 

sites/ellison.house.govlfileslwysiwyg_ 

uploaded/2015%20March%2017%20 

Ellison%20Grijalva%20Waters%20CEOmedian%20worker%20pay%20ratio%20 

letter. ... pdf. 

8 "Letter to SEC Chair Mary Jo White." 

Congressman Keith Ellison. (July 27, 2015.). 

Online at: https:l/ellison.house.g()v/ 

siteslellison.house.gov/files/wysiwyg_ 

uploaded/2015.%20July%2027%20 

Ellison%20Waters%20Grijalva%20et%20 

al%201etter%20to%20Chair%2QWhite%20 

on%20CE0%20Median%20Worker%20 

PiJY.%2QraJiq,pqf. 

9 Ibid. 

10 "FOIA request from AFL-CIO." AFL-C/0. (July 

9, 2015.). Online at: https:!ldrive.googlg.corn/ 

file/d/OB1hw4csNsPTBbFRZdFIVUGpnZWs/ 

view. 

11 "SEC Adopts Rule for Pay Ratio Disclosure." 

Securities and Exchange Commission. 

(August 15, 2015.). Online at: https:/lwww.sec. 

gov/news/pressrelease/2015.-160.html. 

22 Endnotes 

12 "Reconsideration of Pay Ratio Rule 

Implementation." Securities and Exchange 

Commission. (Feb. 6, 2017). Online at: 

btlos:/f.w,w.w • .?.<?C...99Yfngw?!?!<?!§mE>n!! 

I§~.QOsJ<:JeL<'lli9D.::.9fc.PilY:ra_tiQ:r.~ l<?c 

imPiern<?nJ9JLQOJ:llml. 

13 Ibid. 

14 "Comments on the Statement on the 

Commission's Pay Ratio Rule." Securities 

and Exchange Commission. (2017) Online at: 

h!tPs://_ww_w •. s.<t£,99Y/~Qrn_m entsiPl'lY:Il'JtiQ: 

stat§men!!.PtJYJI!t!Q;;tilt.<?m<?nthtrn. 

15 Hoang, C. "SEC Commissioner Addresses 

Prospects for CEO Pay Ratio." JD Supra. (July 

3, 2017). Online at: IJttp?://www.jdsupra.com/ 

l<;oaJIJ<?We/sg£:~9.!11ID!ssiQI1§f:il<:l<:lressf'.?c 

PI9s.Pe<:.t.s:.9.::192;i/. 

16 "Concern Letter and List to Gary Cohn." 

Business Roundtable. (February 22, 2017). 

Online at: htlos://Rvsinessroundtable.org/ 

.s.ites/cl<;faultlfiJ<?'l/Beoulations%20of%20 

concern%20~_,.,!tei%20and%20List%20 

EQ::1:2:2.P<:lf. 

17 "Ellison CEO-Worker Pay Ratio Database." 

Staff of Congressman Keith Ellison. (2018). 

18 "A Financial System That Creates Economic 

Opportunities: Capital Markets." U.S. 

Department of the Treasury. (October 

2017). Online at: httPS://www.treasury.gov/ 

Pre.s.s:.c<?nterfPI<?.ssc.releases/Documents/AfiDilO~i<'!JcSYstE>m:capitai-Markets-FINALFJNAL.pdf. 

19 "Re: Reconsideration of Pay Ratio Rule 

Implementation." Financial Services 

Roundtable. (March 23, 2017). Online at: 

https:Hww_w.s<?<;_,gqy/comment_s/pay-ratiosJQt§rneoVcJI9c1664367-148914. pdf. 

20 "Pay Ratio Disclosure Final Rule." Securities 

and Exchange Commission. p. 128. (October 

19, 2015.). Online at: !1ttps://www.sec.gov/ 

rul<?s/!if1alf:1915!9}:j3877.pdf. 

21 Ibid. p. 9 

22 Ibid. p. 88 

23 Ibid. p. 88 

24 Ibid. p. 90 

25 Ibid. p. 133 

26 "Commission Guidance on Pay Ratio 

Disclosure." Securities and Exchange 

Commission. (September 27, 2017). 

Online at: https:/11/VW\:Y,§S'.c,g()y{gJJ<tsi 

interp/2017/33.:10415.o.<:JJ 
99 


mcarroll on FSR431 with DISTILLERInsert offset folio 50 here 31492.050

27 "Pay Ratio Disclosure Final Rule." Securities 

and Exchange Commission. p. 36. (October 19, 

2015). Online at: 

finP1!/2015IJ3-9877,.pcJf. 

28 "Pay Ratio Disclosure Final Rule." Securities 

and Exchange Commission. p. 95. (October 19, 

29 

30 

31 

32 

2015). Online at: 

fino!/20'!5/33· 9377.pc:;. 

Ibid. p. 32 

Ibid. p. 32 

Ibid. p. 50 

Ibid. p.93 

33 Shay, M. Pay-ratio rule dings retail industry 

for the opportunities it creates for part·time 

workers. CNBC.com (March 15, 2018). Online 

at: ht~ps://vvww.cnbc.com.'2018/03/15/pDyrDtio~rule-d!ngs-ret::Jiiers-for-its-part-time­

'Nork-force.htm!. 

34 "Pay Ratio Disclosure Final Rule." Securities 

and Exchange Commission. p. 128. (October 

19, 2015). Online at: https:!, 'N\'-JW.sec.govi 

9877.pdf. 

35 "Commission Guidance on Pay Ratio 

Disclosure." Securities and Exchange 

Commission. (September 2/, 2017). 

Online at: h"'"' ····'"'"''' 

inte; p.'2017/33-10415.pl~f. 

36 Ibid. p. 5 

37 "Pay Ratio Disclosure Final Rule." Securities 

and Exchange Commission. p. 14. (October 19, 

2015). Online at: 

fln.~l/:?015!33-9877.pd7. 

38 Ibid. p. 28 

39 Ibid. p. 29 

40 Ibid. p. 29 

41 Ibid. p. 51 

42 Ibid. p. 50 

43 Ibid. p. 86 

44 Ibid. p. 87 

45 Ritcey, A. "McDonald's CEO Earned 3,101 

Times More Than Median Employee." 

Bloomberg. (February 12, 2018). Online at: 

httpS:I/V¥1NW.bioornberg.cornig! r:?lp!ilCSlCeO~ 

pay--rutio!. 

46 Ibid. 

47 "Ellison CEO-Worker Pay Ratio Database." 

Staff of Congressman Keith Ellison. (2018). 

48 "ManpowerGroup 10K Filing." Securities 

and Exchange Commission. p. 9. Online 

at: https:.?~:viNW.sec.govtf~rct:ives/E-dgar/ 

cidta.'871763/0000871763180000 70 ·man123117x10k.iltrn. 

49 "Pay Ratio Disclosure Final Rule." Securities 

and Exchange Commission. p. 172. (October 

19, 2015). Online at: 

rules.:fln<JL· 201_5/33-9877.pdf. 

50 Ibid p. 43 

51 Snap Chat 10 ·K report. Online at: 

ht :ps://vvv;w,scc: .~JOv/Archivcs/cdgar/ 

c:atni1564408/00015G459018002721/::..Pnp-

~Ok 2(1171)~1 htm 

52 "Yum China Holdings 14A filing." Securities 

ond Exchange Commission. p. 59. Online 

at: https:. ,'v,;w·.tv.sec .govr A: chivP.s 1

edgBr'" 

c:at~!/1G73358r"000119312518102722/ 

s478873d::-Jef14D.Iitm. 

53 Roosevelt, M. "How much does your CEO 

make coMpared to you? Now, that ratio 

is public." The Mercury News. (April13, 

2018). Online at: https://wv,l\'v'.rnercur ynev ... ·s 

corn/ 2018/04/13/ho\v~mucl! · dos·s ·y:x:r -ceo· 

rn;:h:--compared-to-you~nov.:-thi'lt~rcJti<."~-is~ 

publi<:/. 

54 Goldstein, M. "As C.E.O. Pay Packages Grow, 

Top Executives Have the President's Ear." 

The New York Times. (May 26, 2017). Online 

at hltl!S:/h,r.;\!J\-\I,ll'y'tlfll('$.COfn/2017/05/26/ 

busiiK'SS·ceo-compcnsat!on-poy-presidcntdoriaid··trump.!1tlni. 

55 "McDonald's 14A Filing." Securities and 

Exchange Commission. p. 13. Online at: 

https: 1 /vPsvJ.SE-C.9ov/ t\rchivPsied!Jt·r/ 

data/63908/000120677<118001176! 

mcd3291681-c~ef14:l.t~~tm. 

56 "Sector Overviews." Vanguard. Online at: 

Funds· r: ur.dsT oolsSector Defi nitionJSP.js p. 

57 Ibid. 

58 "About Us." Newmont Mining Corporation. 

Online at: https:/ivvwvv.newinont.cornh.1bout· 

us 'Cc-:f\'1ult.a-:-px. 

59 "Newmont Mining 14A filing" Securities 

and Exchange Commission. Online at: 

l;ttps://\.'/\'Pvv.st..~c.gov/Archives.'edq(Jr/ 

c!JtZ<>1164727i000120677418000734i 

!!Ov.<n:ont3275831-defl4cl.htm//pg99. 

60 "Host Hotels and Resorts, Inc. 2017 Form 

10·K Annual Report" Securities and 

Exchange Commission. (2018) Online at: 

https:.'/\vW'N.sec.gov!Archives,·edgor/ 

d,1ttti1061937J000156459018003330ihst10k_20171231.htrn. 

61 For updated links to legislation, see: 11ttps::i 

ineq t 1 tJ!ity.ot g:0c1 ion/corpornte- p<ty-equ it y. 

62 Piketty, T. "Optimal Taxation of Top Labor 

Incomes: A Tale of Three Elasticities." 

American Journal of Economic Policy. p. 

233. (2014). Online at: ilttps:/lernl.berkeley. 

cc!u-'·'sn€·z:'pikctty<~Aez-st2ntc[levGAEJ14.pclf. 

63 "Sector Overviews." Vanguard. Online at: 

F~ t tps:/fpC:! SOnsl.vac \.) UG I cJ.corn/us-_'COl";tqr~t/ 

r,u_r.G ::;, F-und.'; Too!sSpctorDef; l:Jtior] JSP.js p. 

REWARDING OR HOARDING? An Examination of Pay Ratios Revealed by Dodd-Frank 23 
100 


mcarroll on FSR431 with DISTILLERInsert offset folio 51 here 31492.051
101 


mcarroll on FSR431 with DISTILLERInsert offset folio 52 here 31492.060

Questions for the Record Submitted by Rep .. Joyce Beatty (OH-03) 

Question #1: 

Since assuming your role as Chairman of the Securities and Exchange Commission, you have 

sought several regulat'Ory and policy changes within the Commission. Section 342 of the DoddFrank Wall Street Reform and Consumer Protection Act established an Office of Minority and 

Women Inclusion within the Commission to increase workplace diversity, supplier diversity, and 

diversity among the Commission's regulated entities. The following questions seek to understand 

the role of the OMWI within the Commission under your leadership. 

l. Have you met with the Commission's OMWI Director? If so, when was the last time you met 

and how often do you meet? 

Response: 

Yes, I meet regularly with the Commission's Oftiee of Minority and Women Inclusion 

(OMWI) Director, Pamela Gibbs. Ms. Gibbs participates in my Senior Staff meetings, which arc 

generally held every week. In addition, I hold quarterly one-on-one meetings with Ms. Gibbs, 

which have provided me the opportunity to stay on top of the office's ongoing activities and 

initiatives. Ms. Gibbs and I have also met on a number of other occasions to discuss ad hoc or 

time-sensitive matters. I"ve also attended OMWI staff meetings where I've had the chance to 

meet and talk with the dedicated staff who works in the office. 

I also interact regularly with Ms. Gibbs through our shared leadership role on various 

employee affinity groups. I speak at events organized by OWMI or our staff affinity groups 

throughout the year, and I am currently the Commissioner sponsor of three SEC staff affinity 

groups (the African American Council; the Hispanic and Latino Opportunity, Leadership, and 

Advocacy Committee; and the Veterans Committee). Finally, over the past year, Ms. Gibbs and 

I have worked together to develop a new agency initiative designed to promote mentorship 

opportunities within the staff. We kicked off these efforts in January 2018 by organizing a 

roundtable on mentoring where we discussed potential objectives and methods for promoting 

mentorship opportunities at the SEC. 

2. How many employees work within the Commission's OMWI? Please provide a briefjob 

description of each position within the office. 

Response: 

Currently, the permanent staff of the Commission's 0 MWI is comprised of nine 

employees. The job titles and job descriptions of the OM WI staff are as follows: 

Director- provides leadership and strategic direction for all the Commission's diversity and 

inclusion efforts; oversees the execution of programs and operations needed to build and 

maintain a diverse workforce, foster an inclusive work environment, promote the utilization 

of minority-owned and women-owned businesses in the Commission's business activities, 

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implement standards for assessing diversity policies of regulated entities, and carry out other 

responsibilities specified in Section 342 of the Dodd-Frank Act; establishes and monitors 

standards for perforrnance to ensure workforce and supplier diversity objectives are achieved 

in a manner consistent with applicable policies, regulations, and statutes; represents the 

Commission in senior-level interagency meetings and projects, and meetings and conferences 

of external organizations. 

Deputy Director- serves as senior manager on a broad range of functions supporting 

OMWI's programs and operations needed to carry out responsibilities under Section 342 of 

the Dodd-Frank Act; serves as expert resource providing advice and assistance to agency 

management and staff on internal and external diversity matters; represents the Commission 

at meetings and conferences with other government agencies and external organizations; 

provides first line supervision to OMWI staff; ensures OMWI staff adhere to policies, 

procedures, and internal controls to monitor, evaluate, and as necessary improve OMWJ's 

operations. 

Seuior Counsel- provides legal advice and assistance for OMWI's programs and operations; 

reviews for legal sufficiency and accuracy all material prepared by OM WI staff; drafts 

administrative regulations, policy documents, Federal Register notices, testimony, and 

responses to correspondence; reviews relevant rulemakings proposed by other Commission 

divisions and offices and proposed regulations of other federal agencies; ensures OMWI 

compliance with Paperwork Reduction Act, Freedom of lnforrnation Act, Privacy Act, and 

SEC rules and policies on OMWI-related matters. 

Attorney Adviser- provides legal advice and assistance for OMWI's programs and 

operations; reviews relevant rulemakings proposed by other Commission divisions and 

offices; reviews diversity-related training materials for legal sufficiency and accuracy; 

develops and presents diversity-related training to Commission employees; conducts postaward contract reviews to determine contractors' compliance with their contractual 

obligations to ensure the fair inclusion of women and minorities in the contractor's 

workforce; drafts testimony, speeches, and responses to correspondence. 

Supplier Diversity Officer (two positions) plans and executes initiatives to increase 

utilization of minority-owned and women-owned businesses in the Commission's programs 

and contracts; conducts outreach and provides technical assistance to minority-owned and 

women-owned businesses interested in doing business with the Commission; hosts Vendor 

Outreach Days with staff from the Office of Acquisitions to provide prospective contractors 

an opportunity to learn about Commission's contracting needs and present their business 

capabilities; participates in external business networking events, business conferences and 

procurement matchmaking sessions; maintains electronic database to collect up-to-date 

business inforrnation from diverse suppliers; conducts post-award reviews to dcterrnine 

contractors' compliance with their contractual obligations to ensure the fair inclusion of 

women and minorities in the contractor's workforce. 

Data Analyst- collects, monitors, analyzes, and reports on data related to workforce 

composition and full spectrum of personnel activities; produces quarterly workforce 

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demographic profiles for each Commission division and office; prepares presentations for 

Director's diversity briefings with other senior officials; compiles statistical data and analysis 

for Annual Report to Congress; retrieves and analyzes data from Federal Procurement Data 

System to monitor supplier diversity performance metrics; obtains and analyzes applicant 

flow data from Office of Personnel Management to determine diversity in applicant pools for 

vacancies. 

Program Manager- plans and coordinates diversity-related training for the Commission, 

working with SEC University in the Office of Human Resources; serves as liaison to eight of 

the Commission's nine Employee Affinity Groups (EAG); provides program support for the 

eight EAGs, including assistance with planning SEC-sponsored programs to commemorate 

special observance heritage months; reviews communications and announcements related to 

EAG programs and activities; conducts post-award reviews to determine contractors' 

compliance with their contractual obligations to ensure the fair inclusion of women and 

minorities in the contractor's workforce; coordinates yearly the Commission's partnerships 

with urban high-schools to enhance financial literacy programs and mentoring. 

Program Support Specialist- performs a variety of administrative and management 

support operations such as human resources, budgeting, and procurement; approves and 

monitors government purchase card; monitors internal controls to ensure effective and 

efficient use of resources; serves as focal point f(Jr office communications; coordinates 

participation of employee volunteers for diversity outreach events. 

3. Who is the OMWI Director's direct superior? If it is not the Chairman, please provide a legal 

justification for compliance with Section 342(b )( 1) of Dodd-Frank. 

Response: 

The OMWI Director reports directly to me. On day-to-day operational and administrative 

matters, the OMWI Director also consults with the Chief of Staff, Deputy Chief of Staff, and 

Managing Executive for the Office of Chairman. 

4. Have you met with, or received input from, the Commission's OMWI Director in preparation 

of publicizing your Notice of Proposed Rulemaking regarding Regulation Best Interest (17 

CFR 240)? 

a. If so, what was the nature of those conversations? If not, please provide a legal 

justification for compliance with Section 342(b)(3) of Dodd-Frank. 

Response: 

In April2018, the Commission proposed a package ofrulemakings and interpretations 

that are designed to enhance the quality and transparency of investors' relationships with their 

broker-dealers and investment advisers while preserving access to a variety of types of advice 

relationships and investment products. To solicit feedback from retail investors about the 

proposed rules and their experiences with investment professionals, I asked Commission staff to 

put together a series of roundtables to be held in different cities around the country. The 

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roundtables are intended to help us gather much-needed infor1nation from those who will be 

impacted most directly by the rulcmakings. Seven roundtables have taken place in Houston, 

Atlanta, Miami, Washington, D.C., Philadelphia, Denver, and Baltimore. 

OMWf has worked closely with the Office of Investor Education and Advocacy (OlEA) 

and SEC Regional Directors to help ensure that all segments of the investing public have an 

opportunity to participate in these events. OMWI supported our largest roundtable and town hall 

event in Atlanta held on June 13, 2018, by conducting outreach to minority- and women-focused 

organizations and educational institutions. Most recently, OMWI has been involved in 

organizing the roundtable that was held at the Reginald F. Lewis Museum of Maryland African 

American History & Culture in Baltimore on September 20, 2018. 

Question #2 

In your written testimony, you devote a section to improving disclosure effectiveness, 

specifically with regards to the requirements in Regulation S-K. You also stated that the Division 

of Corporation Finance is preparing recommendations for the Commission to finalize the S-K 

disclosure requirements as a result of the Fix America's Surface Transportation (FAST) Act. 

Last time you were before this Committee, l submitted a Question for the Record regarding a 

December 2016 SEC Advisory Committee on Small and Emerging Companies recommendation 

for the Commission to amend Item 407(c)(2) of Regulation S-K to require issuers to describe the 

extent to which their boards are diverse and require them to include each board member's race, 

gender and ethnicity, to the extent individual directors self-identify. You replied that you asked 

the Division of Corporation Finance to continue to monitor disclosures in this area and make 

recommendations. 

Do you have any update on where the Commission is with regards to the original 

recommendation made by the Advisory Committee on Small and Emerging Companies 

regarding diversity disclosures? 

Response: 

Board diversity disclosure appears on the Commission's published long-term rulemaking 

agenda and is an important issue. In February 2017, the Advisory Committee provided their 

recommendation to then-Acting Chairman Piwowar. Subsequently, I asked the Division of 

Corporation Finance to look at what disclosures companies are providing and how companies are 

approaching the issue. In conversations with issuers, several additional considerations have been 

raised, including sensitivity to board members' privacy interests in terms of self~identifying on 

race, gender, or ethnicity. Our goal is to approach this subject in a thoughtful manner, and we 

continue to study the relevant issues. 

Question #3 

In your written testimony, you briefly discuss efforts by Congress and the Commission to further 

develop a capital fonnation ecosystem that includes a scaled disclosure regime and provides 

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small- and medium-sized businesses additional capital raising avenues while maintaining robust 

investor protections, such as Regulation A+. In April, you submitted a letter to Chairman 

Hensarling and Ranking Member Waters, pursuant to requirements of the JOBS Act, which 

stated you had accepted the staffs recommendation to not increase the $50 million Regulation 

A+ offering limit. 

There have been several articles published by Bloomberg, the Wall Street Journal, and Barrons 

that have highlighted several issues with companies utilizing the Regulation A+ offering and 

have highlighted the fact that the average stock price of a publically-traded company that has 

went public through Regulation A+ is down 50% since listing (e.g., a Bloomberg article entitled. 

"The Dangerous World of Tiny IPOs" which highlights companies run by people who have been 

convicted of robbing investors in the past and a company formed by the founder of a rock band 

to raise money to study UFOs and light-speed travel or the public company LongFin, which the 

SEC recently had to freeze trading in because of illegal distributions and sales of restricted 

shares of stock). 

1. Can you briefly discuss why you sided with the two Democratic commissioners to maintain 

the $50 million cap on Reg At offerings? 

2. Are you at all concerned by the negative press and extremely poor performance of some of 

the public companies that have used the Reg A+ process? 

3. Are these the types of companies we want mom and pop investors to invest in? What can we 

do to improve the Reg A+ regime to make it more legitimate, because right now it is almost a 

scarlet letter for any company that utilizes this method for raising capital? 

Response: 

Section 401 of the Jumpstart Our Business Startups Act (JOBS Act) directed the 

Commission to adopt rules exempting securities offerings of up to $50 million annually from the 

registration requirements of the Securities Act of \933 (Securities Act). On March 25, 2015, the 

Commission adopted final rules to implement this requirement, creating the "Tier 2" offering 

exemption under Regulation A that became effective on June 19,2015. Section 401 of the JOBS 

Act also added Section 3(b)(5) to the Securities Act, which requires the Commission to review 

the $50 million offering limit for these Tier 2 offerings not later than two years after enactment 

of the JOBS Act and every two years thereafter. If the Commission determines not to increase 

the offering limit, it is required to report its reasons for not increasing such amount to Congress. 

In April2018, the Director of the Division of Corporation Finance, William Hinman, sent 

a letter to Congress to report that the Commission had detennined at that time not to propose to 

increase the $50 million offering limit. The primary basis for this determination was the lack of 

available data on completed Regulation A offerings to date. As the letter stated, approximately 

80% of filers with qualified Regulation A offerings at the time of our determination had not yet 

completed their offerings or reported the amounts raised in completed offerings. Due to the time 

lapse between qualification of the offerings and the availability of reports of proceeds for 

completed offerings. the Commission was unable to derive definitive conclusions as to the 

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adequacy of the existing $50 million offering limit, or to forecast the amount of capital that 

typically will be raised through Regulation A offerings conducted in the future. 

I remain committed to the Commission's continued efforts to facilitate capital formation, 

particularly by smaller companies, which can provide Main Street investors with more direct 

investment opportunities without sacrificing important investor protections. As explained in Mr. 

Hinman· s letter, I have directed the staff of the Division of Corporation Finance and the Division 

of Risk and Economic Analysis to continue monitoring the Regulation A market and gathering 

additional infonnation about the use of Regulation A, including data on completed offerings and 

the experiences and suggestions of issuers, investors, and other market participants, to determine 

whether to recommend proposing to increase the Regulation A aggregate annual offering 

limitation. Under Section 3(b)(5) of the Securities Act, the next review of the Regulation A 

offering limit is required to be conducted by 2020, but I have requested that the staff instead do 

so in 2019 as part of my commitment to help facilitate capital formation. 

I am aware of and concerned hy news reports relating to the poor performance of certain 

companies that have issued securities in reliance on Regulation A. While we continue to see 

steady growth in the number of Regulation A offering statements filed with the Commission, we 

are mindful of the need to maintain investor protection-a key component of investor 

confidence-in the market for Regulation A securities and the integrity of the companies active 

in that market so that it continues to be a healthy, cost-effective means of capital formation. 

In addition to the statutorily mandated review of the offering limit, at the time the 

Regulation A amendments were adopted, we committed that the staff would undertake to study 

and submit a report to the Commission no later than five years after adoption on the impact of 

Regulation A offerings on capital formation and investor protection. I also anticipate that staff 

will consider the effectiveness of Regulation A as part of a comprehensive review of our 

exemptive securities offering framework I recently announced. Overall, I expect that the staff 

review and any resulting proposals with respect to the Regulation A exemption will give serious 

consideration to any issues that may be impacting the effectiveness of the exemption as a capital 

raising tool and to whether any additional investor protections are necessary. 

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Questions for the Record Submitted by Rep. Ted Budd (NC-13) 

Questions: 

1. Can you provide any additional detail on how the Commission plans to proceed to raise 

shareholder rcsubmission thresholds as outlined in Mr. Duffy's bill (H.R. 5756) and 

recommended in the October 2017 Treasury report? Given that the changes simply involve 

raising thresholds, isn't this something that the Commission can update outside of the proxy 

plumbing framework and act on quickly? 

Response: 

In July 2018, I announced that the Commission staff will host a roundtable, to be held on 

November 15, 2018, to hear from investors, issuers, and other market participants about whether 

the Commission's proxy rules should be refined. I have asked the staff to consider a variety of 

topics affecting shareholder engagement and the proxy process at the roundtable, including the 

shareholder proposal process. In particular, I have asked that staff specifically look at whether 

the current thresholds for minimum ownership (e.g, shares held and length of time) to submit a 

proposal to be included in the company's proxy statement appropriately consider the interests of 

all shareholders, taking into account the potential benefits to shareholders of a proposal (or 

resubmission) being considered or adopted, as well as the costs associated with the inclusion of a 

proposal (or resubmission) in the proxy statement. Further. I have asked the staff to consider 

whether rules that allow companies to omit resubmitted proposals that received less than 3%, 

6%, or l 0% of the vote, depending on how many times the subject matter has been voted on in 

the last five years. are appropriate. 

There are many strongly held and conflicting views on this issue, and it is important for 

us to be mindful of facilitating shareholders' ability to submit proposals that may benefit the 

company and its shareholders and the costs borne by companies and other shareholders in 

processing those proposals. It is also important to consider whether our rules and processes in 

this area are serving the long-term interest of Main Street investors, and the roundtable is 

intended to facilitate that type of assessment. 

I expect that roundtable participants and other interested parties will submit comments 

with recommendations for potential Commission action, including adjusting the current 

resubmission thresholds. I look forward to the feedback from participants at the roundtable and 

future recommendations from staff on ensuring that the proxy process is meeting the needs of 

shareholders and issuers. 

2. What information is made available to shareholders and the public by the Commission about 

how public companies are managing their risk beyond financial reporting? 

Response: 

The issue of risk management at our public companies is important, and I believe 

increasingly so, particularly in areas such as cybersecurity and dependency on third party service 

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providers. I also believe shareholders should receive material information regarding risk 

management, including risk assessment. 

In this regard, registrants must comply with our disclosure requirements under the federal 

securities laws. In addition to certain financial reporting requirements, risk-related disclosure is 

addressed by a number of SEC rules and regulations. For example, Item 407(h) of RegulationSK and Item 7 of Schedule 14A require a company to disclose the extent of its board of directors' 

role in the risk oversight of the company, such as how the board administers its oversight 

function and the effect that this has on the board's leadership structure. The Commission 

specifically noted this requirement in its February 2018 Statement and Guidance on Public 

Company Cybersecurity Disclosures, where it stated that to the extent cybersecurity risks are 

material to a company's business, the disclosure should include the nature of the board's role in 

overseeing the management of that risk. 

Other disclosure requirements call for further information on the risks faced by 

registrants. Item 503( c) of Regulation S-K requires disclosure of the most significant factors that 

make an investment in a registrant's securities speculative or risky. Moreover, Item 305(b) of 

Regulation S-K requires registrants to describe, to the extent material, their primary market risk 

exposures, how those exposures are managed, and any changes to either the primary market risk 

exposures or the way that risk exposures are managed. Our rules also require, in addition to the 

information expressly required to be included in a filing, disclosure of further material 

information, if any, as may be necessary to make the required statements, in the light of the 

circumstances under which they arc made, not misleading. In light of these requirements, some 

registrants also describe other risk management practices in filings. 

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House Committee on Financial Services 

"Oversight of the U.S. Securities and Exchange Commission" 

June 21,2018 

Questions for the Record Submitted by Congressman Tom Emmer (MN-06) 

Mr. Chairman, in past statements you have said that cryptocurrencies are "replacements for 

sovereign currencies," and that "that type of currency is not a security." 

To the extent any particular cryptocurrcncy is not a security, is this determination made because 

the design-goal of the cryptocurrency is to be a currency that could replace sovereign money or 

is this determination made because the cryptocurrency is both functional and decentralized, as 

described by Director Hinman in a recent speech? 

Do you think it is possible for a token or cryptocurrency to not be a security if it is decentralized 

and functional, as described by Director Hinman, but was not designed to be a replacement for 

sovereign currency? We are thinking specifically of decentralized tokens developed to offer 

computing services, identity tools, or other goods whose usc as a currency may be secondary or 

even non-existent. 

Response: 

Whether a eryptocurrency, token, coin, or any other digital asset is a "security" for 

purposes of the federal securities laws is determined by applying long-established law to the 

facts and circumstances of the particular instrument being sold. Under Supreme Court case law, 

SEC v. W.! Howey Co., 328 U.S. 293 (1946), and its progeny, where purchasers make an 

investment of money in a common enterprise with an expectation of profits derived from the 

efforts of others, the asset the investor receives in return for the investment-whether labeled a 

"stock", "bond", "contract", "instrument", "token", "coin" or "digital asset"-is a security. 

Determining whether, under the Howey test or other analytical frameworks, an asset is a security 

generally requires an assessment of the facts and circumstances, including the economic 

rationale underlying the relevant purchase and sale transaction and the parties' expectations. 

I believe the speech by our Division of Corporation Finance Director William Hinman 

appropriately addressed a number of the considerations in evaluating whether a digital asset is a 

security, In theory, I agree that you could have a digital asset that is sold only to be used to 

purchase a good or service available through the network on which it was created, consistent 

with the hypothetical posed in your question. If the network on which the token or coin is to 

function is sufficiently decentralized-where purchasers do not or would no longer reasonably 

expect a person or group to carry out essential managerial or entrepreneurial efforts-the assets 

may not represent a security under the Howey test. It is important to note that the analysis of 

whether something is a security is not static and does not strictly depend on the type of 

instrument. Even digital assets with utility that function solely as a means of exchange in a 

decentralized network could be packaged and sold as an investment strategy that could be a 

security. 
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W c have encouraged those interested in these issues to reach out to the SEC staff. Our 

staff has built significant expertise on these issues, and we recently named a new Associate 

Director in the Division of Corporation Finance to serve as Senior Advisor for Digital Assets and 

Innovation to coordinate efforts in this area across the agency. 1 In addition, we recently 

launched the SEC's new Strategic Hub for Innovation and Financial Technology ("FinHub"), 

which will serve as a resource on these and other Fin Tech-related issues and facilitate 

engagement with investors and market participants. Our door remains open to those who seek to 

innovate and raise capital in accordance with the law. 

1 See Press Release 2018-102, SEC Names Valerie A. Szczepanik Senior Advisor for Digital Assets and Innovation 

(June 4, 2018), available at https:ilw\\ w.sec.£m·lnew5/J:lress-relea>ei20 18-l 02. 

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Question for the Record Submitted bv Rep. Blaine Luetkemever (M0-03) 

In its recent October 2017 Capital Markets report, Treasury emphasized that the risk retention 

regulations should not be static, noting the importance of creating appropriate risk retention 

exemptions for low risk asset classes: 

" ... banking regulators expand qualifYing risk retention exemptions across eligible asset classes 

based on the unique credit characteristics of each securitized class, through notice and comment 

rule making. Well documented and conservatively underwritten loans and leases, regardless of 

asset class, should not require signaling, through retention, from the sponsor as to the credit 

worthiness of the under(ving collateral". 

Will you comment on the possibility of the SEC re-opening the issue of risk retention to make it 

more merit-based, where conservatively underwritten loans, across other asset classes, can have 

a chance to gain an exemption from the rule? 

Response: 

I believe that the Department of the Treasury's Core Principles reports clearly and 

comprehensively frame many of the key issues in our financial markets. These reports have 

made an extremely valuable contribution to the SEC's mission, and, importantly, to investors and 

our capital markets. I commend Secretary Mnuchin and Counselor Phillips for their work on 

these reports. 

Pursuant to Section 941 of the Dodd-Frank Act, the risk retention rules were jointly 

adopted in 2014 by six federal agencies, including the Commission and the Federal banking 

agencies. Section 941 allows the Commission and the Federal banking agencies to establish 

asset classes for securitizations to which a lower risk retention requirement may apply if the 

underlying loans meet underwriting standards indicating a low credit risk ("qualifying assets"). 

However, Section 941 allocates the authority for writing the rules to implement its provisions 

among the six agencies in various ways. Under the statute, the Federal banking agencies have 

the authority to specify the underwriting standards for qualifying assets. As a result, the Federal 

banking agencies, rather than the Commission, are the appropriate agencies to consider, in the 

first instance, whether there is a basis for creating additional exemptions for qualifying assets of 

other asset classes. 

However, recognizing the importance of input from investors and other market 

participants to help us assess whether our rules are accomplishing their intended goals, our door 

is always open to discuss this and other issues with our fellow regulators and other market 

participants. 

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Questions for the Record Submitted by Rep. Brad Sherman (CA-30) 

Questions: 

1. In your experience, are the majority of !CO's conducted pursuant to an exemption from 

registration, or are they operating illegally? 

2. What are some of the enforcement challenges the SEC faces in the unregistered ICO market? 

3. What specific steps is the SEC taking to overcome these challenges and ensure effective 

policing of the !CO markets? 

Response: 

The federal securities laws provide that all offers and sales of securities must be 

registered with the SEC or qualify tor an exemption from SEC registration. Whether a particular 

ICO is a security, and if so whether it qualifies for an exemption, depends on the facts and 

circumstances of the offering. Just as with any offer and sale of securities, the Commission will 

bring enforcement actions where appropriate for violations of the federal securities laws, 

including the registration provisions. The requirement to register securities offerings (and its 

twin, the registration exemption for private placements) are at the core of our regulatory system. 

This approach has served us well, facilitating capital formation while maintaining a high level of 

investor protcction~-both at levels that are world-leading. 

The staff in the Division of Enforcement (Enforcement) continues to investigate and, 

where appropriate, recommend enforcement actions for violations of our registration 

requirements and other laws, including anti-fraud laws, vigorously. Enforcement cases involving 

digital assets date back to 2013, and include cryptocurrency-denominated Ponzi or other 

fraudulent investment schemes, unregistered offerings, and unregistered trading platforms. Last 

year, we formed a Cyber Unit in Enforcement to focus its considerable expertise on !COs and 

other cyber-related activity. 

The Commission has brought a number of !CO cases against issuers and individuals for 

alleged unregistered offerings, certain of which also allege fraud. The Commission has obtained 

asset freezes in emergency actions and staff continues to partner with criminal authorities to halt 

fraudulent !CO schemes. The Commission also has issued more than a dozen trading 

suspensions for publicly traded companies, largely as a result of questions regarding the accuracy 

of the assertions these companies were making about their blockchain-rclated business plans. 

The !CO market does pose enforcement challenges, particularly as a result of its rapid 

ascendancy in 2016 and 2017, its use of the internet to engage with retail investors directly and 

broadly and the international nature of the market. For example, because transactions may be 

conducted largely outside the United States, witnesses and evidence may be located otlshore, 

and our ability to access information therefore may be limited. Tracing the flow of digital asset 

transactions may be more difficult because centralized and traditional financial institutions often 

are not involved. Certain entities that are involved in the flow of funds may not keep customer 

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and trading records. The anonymity provided by digital assets may make it hard to attribute 

conduct to any particular individual or entity. and this challenge will be exacerbated with the use 

of digital assets that have enhanced anonymity features. There also are challenges with seizing, 

freezing, and recovering digital assets. I have, on multiple occasions, specifically cited these 

issues in waming investors about the various risks presented by !COs, including in a statement I 

issued in December 2017. 

In addition to these statements, the statT has issued various statements and taken other 

initiatives that highlight investor protection and market integrity concerns in this area. As just 

one example of our messaging in this area, the Office of Investor Education and Advocacy 

published a mock JCO website that touts a "too good to be true" investment opportunity and 

mimics a bogus coin offering to educate investors. Any attempt to invest takes a would-be 

investor to educational materials concerning !COs. 

In the area of prevention, we also have made it clear to professional service providers 

(e.g., auditing finns, underwriters, and lawyers) that we expect them to provide services in 

accordance with our laws. If they do not, l expect we will bring enforcement actions. 

We also recognize that developing staff expertise, both within Enforcement's Cyber Unit, 

as well as across the agency, is important to the Commission's ability to focus on developments 

in this space. We are committed to developing this expertise and have made significant progress 

in the past 18 months. 

Finally, to address challenges related to the global scope of cryptocurrencies and !COs, 

the Commission and staff coordinate with its domestic and foreign regulatory and law 

enforcement counterparts on approaches in this area. 

4. In thinking about disclosure of cybersecurity and cybersystems, certainly disclosure should 

be meaningful, balanced, and have a focus on the core of the entity's brand, mission and 

market value. What is the appropriate disclosure regime? 

Response: 

In light of the increasing significance of cybersecurity incidents, the Commission issued 

interpretative guidance in February 2018 to assist public companies in preparing disclosures 

about cybersecurity. The Commission's guidance highlights the disclosure requirements under 

the federal securities laws that public companies must evaluate when considering their disclosure 

obligations with respect to cybersecurity risks and incidents. The staff in the Division of 

Corporation Finance, through its filing review process, continues to monitor carefully public 

companies' cybersecurity disclosures. 

The existing disclosure framework seeks to elicit disclosure of cybersecurity incidents 

and risks that are material to investors in a timely fashion. At the same time, the disclosure 

regime is flexible enough to allow companies to make their own determination about how and 

when disclosure is needed. Generally, the determining factor is whether the information would 

be viewed by the reasonable investor as important in making an investment decision or as having 

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significantly altered the total mix of information available. As the cybersecurity landscape and 

the risks associated with it continue to evolve, the Commission and staff will continue to 

evaluate the guidance in light of such disclosures, the cybersecurity environment, and its impacts 

on issuers and the capital markets generally and consider feedback about whether any further 

guidance or rules are needed. 

5. Chairman Clayton, can you give us an update as to where Regulation Best Interest is in the 

process? 

Response: 

ln April, the Commission voted to propose a comprehensive package ofrulemakings and 

interpretations designed to enhance the quality and transparency of the relationships retail 

investors have with their investment professionals, while preserving access, in terms of both 

availability and cost, to a variety of types of investment services. The proposed rulemaking 

package includes a robust 90-day request for comment on all aspects of the package. In order to 

hear first-hand from retail investors who will be directly impacted by the rulemaking package, 

we have conducted a number of roundtables across the country to provide Main Street investors 

the opportunity to tell us about their experiences and views on what they expect from their 

investment professionals. The transcripts from these roundtables are included in the comment 

file. We also have invited investors to share their insights and feedback with the Commission by 

going to https://www.sec.gov/tdl-us. In addition, our Office of Investor Advocate engaged 

RAND Corporation to perform investor testing on aspects of the rulemaking package, including 

Form CRS. The results of the investor testing were recently made available on the SEC's 

website in order to allow the public to consider and comment on this supplemental information. 

The staff of the Division of Trading and Markets and the Division of Investment 

Management are reviewing all comments received, which is over 6,000 to date. While the 

comment period ended on August 7, 2018, the rules' comment files continue to receive and 

publish public comments, and the staff will continue to consider the rulcmaking record as it 

develops a recommendation. 

6. Despite the SEC's prediction in 2006 that the Acquired Fund Fees and Expenses rule would 

not harm capital formation and would benefit investors, do you agree that the removal of 

Business Development Companies (BDCs) from two major indices has reduced BDC 

institutional ownership, as well as market depth and liquidity for all investors? 

7. Because of the small size of the BDC industry at the time, with only 5 existing BDCs when 

the Acquired Fund Fees and Expenses rule was proposed, is it possible that the SEC did not 

thoroughly analyze or understand the impact of the rule on the BDC industry? 

8. Now that we have seen clearly the impacts of the rule on the industry, and because BDCs in 

fact operate almost identically to REITs, which are exempted from the Acquired Fund Fees 

and Expenses Rule, are you, Chairman Clayton, open to making changes either through 

regulation or guidance, to provide a similar exclusion for BDCs? 

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Response 

The Acquired Fund Fees and Expenses (AFFE) requirement, adopted by the Commission 

in 2006, requires registered investment companies (acquiring funds) that invest in underl ying 

funds, including BDCs and private funds, to disclose in their fee tables the expenses of these 

underlying funds. The AFFE requirement is designed to help investors understand and compare 

the costs of in vesting in an acqu iring fund to the costs of investing in a registered fund that 

doesn 't invest in underl yi ng funds. 

Funds that in vest in other fund s can have duplicative expenses, such as advisory fees, 

which are charged directly at the acquiring fund level and indirectly at the underlying fund level. 

The AFFE requirement was intended to prov ide investors with better discl osure about these 

indirect costs to help them make more informed investment decisions. 

When the Commission proposed the AFFE requirement, it stated that these disclosures 

"should promote more efficient allocation of investments by investors and more effi cient 

allocation of assets among competing funds because investors may compare and choose funds 

based on their preferences for cost more easily. " The Commission also sought comment on its 

proposed analysis of potential effects of the rule on competition, effi ciency and capital 

fo rmation. However, during the comment period after the AFFE requirement was proposed in 

October 2003, none of the 18 BDCs that were publicly traded that year (or other non-publicly 

traded BDCs) commented on the proposal. 

Neve rtheless, I understand that BDCs have since come to play a more signifi cant role in 

capital fo rmation, particularly in middle-market lending. In addition, I am aware that there have 

been developments since the AFFE requirement was adopted, including exclusion of BDCs from 

major market indices, that neither BDCs nor the Commission may have anticipated when the 

AFFE requirement was adopted. 

The Coalition for Small Business Growth, whose members include certain BDCs, has 

asked Commission staff to consider relief from the AFFE requirement that would allow 

acquiring funds to exclude BDC expenses from the ir fund fee tables. Staff is acti ve ly engaged 

with the Coalition to understand better the particul ar challenges that mutual funds which may 

desire to invest in BDCs experience with the AFFE requirement and to evaluate how we ll the 

requ irement is achieving the Commission's poli cy goals. I look fo rwa rd to continuing the 

dialogue on this subj ect. 
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Questions for the Record Submitted by Rep. Scott Tipton (C0-03) 

Automation 

Background: The financial services industry. in particular back office and middle office 

processes, is not fully automated and often relies on manual methods (e.g .• to enter data into a 

system or to communicate between systems). Further communication to clients, even to 

sophisticated institutional clients, is still done in many instances by PDF, email, and even 

fax. The failure to fully automate these functions where such technology exists and is tested can 

lead to significant delays to settlement times, increase the number of trade errors, unnecessarily 

increases costs for clients, and potentially introduce unnecessary risk into the system. For 

example, standing settlement instructions (SS!s) use manual methods for client communication 

and issues related to the use of such methods are often cited as one of the leading causes of trade 

failures & exceptions because the SS!s are inaccurate or out of date. 

Question: 

While not everything may be ripe for full automation, automation can offer clear benefits, 

including low cost, case of use, and reduced trade errors, especially when time is taken to 

understand and mitigate the risks and limitations of such automated processes before using them. 

What can the SEC do to bring these outdated functions into the 21 '' century? 

Response: 

In the clearance and settlement area, the Commission has pursued a number of initiatives 

that create the potential for increased automation. These initiatives have focused on reducing 

settlement times and the overall number of trade errors. For example, in 2017, the Commission 

adopted rule amendments to shorten the standard settlement cycle for most broker-dealer 

transactions from three business days after the trade date ("T +3") to two business days after the 

trade date ("T + 2"). Comments on this initiative noted that a shorter settlement cycle would 

motivate market participants to improve their operational processes by increasing automation 

and straight-through processing. In adopting the proposal, the Commission agreed with these 

comments that a shortened settlement cycle would result in the development and use of more 

efficient operational processes. 

In addition, with respect to institutional trades, matching service providers have helped 

facilitate a significant evolution in the institutional trade settlement process, which was originally 

carried out directly between the broker-dealer and the institution with little or no automation. 

Virtually all institutional trades arc now processed through electronic systems, and matching 

service providers further supports a move towards automation by actively comparing trade and 

allocation information to issue an affirmed confirmation that is used to settle a trade. In 2015, 

the Commission granted an exemption from registration as a clearing agency to two new 

matching service providers. In providing these exemptions, the Commission noted that the 

availability of multiple matching service providers provides market participants with more 

venues to match trades in a timely, efficient manner, increasing the potential for a higher global 

rate of affirmed trades during the settlement cycle and promoting a shorter settlement cycle. The 

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availability of matching service providers expands access to automated trade matching, which 

facilitates the settlement of trades by reducing errors and the amount of time needed to settle. 

We will continue evaluating further initiatives to increase automation, both at the SEC 

and in other market functions more generally. 

EU 

Background: A U.S. Clearinghouse (CCP) doing business in Europe (EU) needs to obtain 

formal recognition pursuant to the European Market Infrastructure Regulation (EMIR) to be able 

to competitively provide clearing services to EU clearing members and customers. However, a 

CCP can only be recognized if the EU has found its regulatory regime to be "equivalent" to 

EMIR. In 2016, EU authorities found the CFTC regime to be "equivalent." However, the SEC 

and the regulatory framework for clearing cash-securities, including U.S. Treasuries, has not yet 

been found to be "equivalent" and progress on this front has been met with frequent 

delays. Further complicating an SEC "equivalency" determination are draft revisions to EMIR 

that would bring U.S. and other third-country CCPs under the direct regulation and supervision 

of the EU for the first time. The stated purpose for making these changes is to address the 

potential risks that third-country CCPs could pose to the Europe· s financial system. The 

approach, however, could reopen the 2016 equivalence agreement for derivatives clearinghouse 

supervision between the CFTC and the EU authorities, which could further delay an SEC 

"equivalency" determination. 

Question: 

While it is difficult to measure the impact of European members pulling out of U.S. cash-market 

CCPs, it would undoubtedly negatively impact the functionality and liquidity of the U.S. 

Treasury market. How do you plan to address this situation? Can you describe the SEC's efforts 

to work with the EU on an "equivalency" determination and the progress that has been made on 

this front? 

Response: 

Your question centers on an important issue that could have significant consequences for 

our markets if the European Commission (EC) does not deem certain SEC-regulated central 

counterparties (CCPs) equivalent. Currently, under Article 25(2)(a) of the European Market 

Infrastructure Regulation (EMIR), an "equivalence" decision is a necessary pre-condition to 

European Securities and Markets Authority (ESMA) recognizing U.S.-based, SEC-regulated 

CCPs. Specifically, an equivalence determination would enable ESMA to recognize U.S.-based, 

SEC-regulated CCPs so that European Union (EU) credit institutions and investment firms can 

continue to receive CCP services without incurring higher capital charges under new EU capital 

requirements and also would allow U.S.-based, SEC-regulated CCPs to provide CCP services to 

clearing members or trading venues established in the EU. 

Since 2013, SEC staff has been in dialogue with EC staff regarding the potential for the 

EC to detenninc that the SEC's regulatory regime for U.S.-based CCPs is equivalent to the 

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regulatory framework for CCPs set forth in EMIR. In September 2016, the SEC adopted 

standards for certain SEC-regulated CCPs that are consistent with the CPMT-IOSCO Principles 

for Financial Market Infrastructures, 2 which are the international standards for CCPs and other 

financial market infrastructures. 

We believe the adoption of these standards should make it easier for the EC to complete 

its equivalence analysis of the SEC's regulatory regime for U .S.-based CCPs and reach an 

equivalence determination. However, the EC staff has not provided any indicative timeframe for 

its decision-making. SEC staff continues to engage with EC staff regarding a potential 

equivalence determination, and it has provided prompt responses to several information requests 

from EC staff. SEC staff stands ready to engage on these matters and will continue to provide 

information requested by the EC staff. 

Swaps Reporting 

Background: Dodd-Frank included requirements for the creation of swap data repositories 

(SDRs) to provide central facilities for swap data reporting and recordkeeping (including for 

security-based swaps). Under Dodd- Frank, all swaps, whether cleared or uncleared, are required 

to be reported to registered SDRs. The CFTC promulgated Part 49 regulations implementing 

Commodity Exchange Act Section 21. The SEC promulgated Rules 13n-1 to 13n-l2 

implementing the Securities Exchange Act of 1934 Section l3(n). Critically, the CFTC and SEC 

SDR rules differ in ways that could impede transparency into the swaps market. 

Question: 

A basic goal of Dodd-Frank financial reform was improving transparency into the swaps market. 

A full picture of the swaps market will require transparency into the derivatives swaps market 

and the securities based swaps market, which falls under the jurisdiction of the SEC. Both you 

and CFTC Chairman Giancarlo have indicated that your agencies arc coordinating to achieve 

greater regulatory hannonization. Can you describe these efforts and the progress that has been 

made on this front? 

Response: 

Title VII of the Dodd-Frank Act gave the SEC regulatory authority over security-based 

swaps and certain key participants in that market, including "security-based swap dealers" and 

"major security-based swap participants." Title VII, among other things, amended the Securities 

Exchange Act of 1934 to address the registration and regulation of security-based swap dealers, 

the registration and duties of security-based swap data repositories, the reporting and public 

dissemination of security-based swaps, and the mandatory clearing and trade execution of certain 

security-based swaps, among other things. 

The SEC has finalized many, but not all, of the Title VII rules that Congress directed it to 

establish. With respect to transaction reporting and transparency, the SEC adopted Exchange 

' See Standards for Covered Clearing Agencies, Securities Exchange Act Release No. 78961 (Sept. 28, 20 16), 81 FR 

70786 (October 13, 2016). 

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Act Rules 13n-l through 13n-12, which establish the procedures by which a swap data repository 

shall register with the SEC and certain "duties and core principles" to which a swap data 

repository must adhere. The SEC also adopted Exchange Act Rules 900 to 909 ("Regulation 

SBSR"), which provide for the reporting of security-based swap transaction data to registered 

swap data repositories, and the public dissemination of security-based swap transaction, volume, 

and pricing information by registered swap data repositories. The compliance schedule for 

Regulation SBSR is tied to, among other things, finalization of rules establishing reeordkeeping 

and reporting and capital, margin, and segregation requirements for security-based swap entities. 

These rules have been proposed but not finalized. 

The SEC remains committed to consulting and coordinating with the CFTC to the benefit 

of the markets and market participants we oversee. In this regard, I am pleased to note that 

CFTC Chairman Giancarlo and l recently executed a memorandum of understanding (MOU) 

between our two agencies. This MOU explicitly acknowledges where we have shared regulatory 

interests, including but not limited to Title VII, and reconfirms our commitment to work together 

to facilitate efficient markets for the benefit of all market participants. 

The Commission also issued a statement on October 31. 2018, setting forth the 

Commission's position that certain actions with respect to provisions of its Business Conduct 

Standards for Security-Based Swap Dealers and Major Security-Based Swap Participants will 

not provide a basis for a Commission enforcement action for a limited time period. The 

statement also addresses the Commission's position on the ability of parties to security-based 

swaps to rely on written representations previously provided in relation to swaps, also for a 

limited time period. The Commission's statement is intended to minimize potential market 

disruptions to existing counterpmty relationships resulting solely from documentation 

implementation issues that may arise when security-based swap dealers and major security-based 

swap participants are required to register with the Commission. Upon registration with the 

Commission, entities that are also registered with the CFTC will be required to comply with both 

the Commission's Business Conduct Standards, as well as analogous rules adopted by the CFTC 

in 2012 applicable to swap dealers and major swap participants." 

I have asked the Commission staff to continue to consider ways to further harmonize our 

security-based swap rules with the CFTC, where appropriate, to increase effectiveness as well as 

reduce complexity and costs. This requires deliberate and constructive engagement with the 

CFTC. In some instances-in part because of statutory variances and differences in products 

and markets-the SEC's final and proposed rules governing security-based swaps have differed 

from the rules governing swaps that the CFTC adopted pursuant to its Title VII mandates. 

We arc initially focusing on a number of di!Terent areas of Title VII and recognize that further 

consistency across Title VII will further the goals of transparency as well as reduce complexity 

and costs. In addition, SEC staff has pmticfpated with the CFTC in international efforts to 

hmmonize transaction identifiers, product identifiers, and critical data elements. 

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FIMSAC Recommendations 

Background: Some industry analysis has described the difficulty investors are experiencing in 

gaining exposure to certain assets. In particular, in corporate bonds, there are reports that 

investors sometimes have to break up large orders into many smaller orders to find the liquidity, 

but that this longer execution process makes them vulnerable to market movements and higher 

costs. In January, the SEC launched the Fixed Income Markets Advisory Committee (FIMSAC), 

which is intended to look at fixed income markets for just these types of issues and make 

recommendations. In March, FIMSAC recommended running a pilot program related to the 

reporting of large transactions. 

Question: 

Are there are other issues you think the Committee should consider that could improve 

liquidity? What else do you think this Committee should consider with regard to electronic 

trading and bond funds, the topics of two of the Committee's subcommittees? 

Response: 

The Fixed Income Market Structure Advisory Committee's (FIMSAC) work is central to 

the Commission's effort to enhance the market structure for fixed income as we assess the 

efficiency and resiliency of these markets, including liquidity in the various facets of our fixed 

income markets. I have also emphasized the importance of focusing on Main Street investors as 

they are key participants in the corporate bond and municipal securities markets, both directly 

and indirectly through a variety of pooled investment vehicles. 

I believe that the FlMSAC's focus on transparency, electronic trading and ETFs, and 

bond funds is appropriate, and the variety of issues it is considering within these topics could 

help improve liquidity in our fixed income markets, including the corporate bond market 

identified in your question. With respect to transparency specifically, the FIMSAC is analyzing 

several key topics. The FIMSAC has recommended that applicable rules around large trade 

reporting be analyzed through a pilot program to address the concerns you note regarding 

liquidity for larger orders. In addition to its recommendation for a pilot concerning large trades, 

I believe it is important to receive views from the FIMSAC regarding the current state of pretrade transparency, with an eye toward infonning the Commission about whether market 

participants have appropriate information to value bonds in a manner that supports a robust 

market infrastructure. 

I also believe that the FIMSAC's Municipal Securities Transparency Subcommittee's 

focus on retail investor participation in municipal securities offering is important. I look forward 

to their views on how retail participation in municipal securities primary offerings can be 

promoted so that retail investors are able to acquire these assets on the best possible terms. 

Additionally, the Committee's focus on issues pertinent to fostering a competitive and 

robust electronic trading environment is timely, as the market continues to evolve towards more 

electronic trading. The Commission staff has begun evaluating the first of these 

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recommendations, a comprehensive review of the current regulatory landscape for electronic 

trading venues. 

Additionally, I believe prompt consideration should be given to the FIMSAC's recent 

recommendation for a centralized source of new issue reference data that is provided in real time 

to all reference data vendors and market participants, and I've asked the Commission staff to 

focus on this recommendation. In order to have confidence in electronic trading, market 

participants need timely access to accurate reference data, and this recommendation should help 

promote robust electronic trading infrastructures. 

Finally, concerning electronic trading, I also look forward to the FIMSAC's continued 

consideration of practices in the bid-wanted auction market that may impair the quality of that 

market. Retail customers in the bond market rely heavily on the bid-wanted auction process 

when looking to sell bonds. Any market practices that negatively impact this important trading 

protocol must be assessed carefully, and I look forward to the FIMSAC's review of this issue. 

Regarding bond funds and exchange-traded funds (ETFs), FIMSAC's ETFs and Bond 

Funds Subcommittee is working on several issues that I believe are worthy of consideration. For 

example, the FIMSAC has considered any potential impact of ETFs on liquidity and pricing of 

underlying bonds-especially in stressed markets, and the Subcommittee continues to assess 

it. In addition, the Subcommittee has made recommendations regarding investor education, ETF 

data, and the classification and labelling of exchange-traded products including ETFs. 

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Questions for the Record Submitted by Rep. Ann Wagner (M0-02) 

Questions: 

1. On July l, 2017, the State ofNevada implemented its own fiduciary rule after the delay of 

the DOL rule and after inaction by the SEC to implement a unifonn fiduciary standard. In 

addition, other states such as New York, New Jersey, and Massachusetts were looking at 

developing their own state fiduciary standard. 

2. Are you concerned about the potential impact a patchwork of state laws will have on the 

provision of retirement advice? 

3. Now that the SEC has proposed their own best interest standard for broker-dealers. how will 

the SEC look at state action in this space as it moves forward? 

Response: 

The lack of regulatory consistency and coordination amongst multiple regulators 

continues to be a challenge with regard to the provision of investment advice to retail investors. 

Broker-dealers arc currently, and would continue to be, subject to a variety of regulations, 

including the federal securities laws, SRO rules, and rules from other regulators such as the 

states. I recognize this lack of consistency among standards imposes costs on investors and the 

markets and, in many cases, it is not clear to me that either investor protection or investor 

opportunity are being enhanced by this patchwork approach to professional standards. Our 

markets, including the market for personal financial services, arc largely national. As a result, I 

believe it is important that we pursue clarity, consistency, and collaboration as key elements of 

effective oversight and regulation in this important area. 

I also believe that the SEC's proposed model-a rigorous standard that, in practice, can 

cover a range of relationship types--will produce high-quality advice where investment 

professionals cannot put their interests ahead of the interests of their clients while maintaining a 

range of cost-effective options for retail investors. More pointedly, I believe that our approach, 

including its clear framework, puts us in a good position to work with our fellow regulators at the 

federal and state levels to seek consistency and coordination across the entire spectrum of 

investment professionals and products-and we intend to work closely with them to promote 

regulatory harmonization. 

4. The SEC is essentially creating two rules. One, an actual best interest standard for brokerdealers and two, the creation of a disclosure form that is required for broker-dealers and 

investment advisers when first engaging with a client. Based on my review of the proposal, 

I'm not sure these need to move together- if in fact the SEC needs more time to work on the 

best interest standard portion. 

Do you see an option where the disclosure portion of the rule would move separate from the best 

interest conduct rule? Based on my previous question on timing, this might be an effective way 

to move forward given the urgency of this issue. 

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Response: 

The proposals are separate but are complementary. The market for investment services 

spans both broker-dealers and investment advisers. Taken together, the proposals provide a 

coherent path forward, across this market, on issues that the Commission has been actively 

considering for nearly two decades. Collectively, the proposals are designed to serve Main 

Street investors by (I) requiring broker-dealers to act in the best interest of their retail customers; 

(2) reaffirming and in some cases clarifying the fiduciary duty owed by investment advisers to 

their clients; and (3) requiring both broker-dealers and investment advisers to clarify for all retail 

investors the type of investment professional they are and disclose key facts about their 

relationship. Because these proposals work well together to better clarify and align the standards 

of conduct for broker-dealers and investment advisers with what investors would reasonably 

expect, I anticipate staff will recommend adopting these three proposals together. 

17