Thanks to Kurt Wolfe and Chris Ekimoff for having me as a guest on the lastest installment of PLI’s inSecurities podcast. As someone who tunes in regularly, it was a pleasure for me to do. I enjoyed chatting about broker-dealer and investment adviser regulatory issues, my work with PLI including the upcoming live webcast Securities Law and Practice 2021: How the SEC Works on June 28.
To hear this episode, and other episodes, click here.
This month’s securities enforcement article uses the television show “The Crown” as its primary source of inspiration in memory of Prince Philip, Duke of Edinburgh, who died on April 9, 2021; in awe of Oprah’s timing, interviewing skills, ability to get an interview; and out of respect for the Queen, “Her Majesty Elizabeth the Second, by the Grace of God, of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith,” and the Prime Ministers who served under her. Please note that, as far as we know, “The Crown” did not involve investments in securities. . . Nonetheless, the Netflix television show does involve rules and codes of conduct; intrigue and misdirection; punishment and praise; drama and comedy; and good and evil.
FINRA has recently taken steps to advance diversity and inclusion in the broker-dealer industry, including issuing Regulatory Notice 21-17, on April 29, 2021, seeking comments. FINRA stated that it is committed to supporting diversity, inclusion and equal opportunity efforts by the industry. The request for comment noted that regulatory agencies such as FINRA have an opportunity to evaluate how their rules and actions may have unintended disparate impacts on those within the industries they regulate and how they may unintentionally impede diversity and inclusion. In connection with these efforts, FINRA requested comments by June 28, 2021 “on any aspects of our rules, operations and administrative processes that may create unintended barriers to greater diversity and inclusion in the broker-dealer industry or that might have unintended disparate impacts on those within the industry.” Subsequently, on May 20, 2021, FINRA chair, Eileen Murray, participated in a virtual fireside chat at FINRA’s Annual Conference with FINRA CEO, Robert Cook, during which Ms. Murray discussed her hopes to see more accountability and standardization in the reporting of diversity and inclusion efforts within firms in the industry, and that tying executive compensation to diversity goals would make a “world of difference.”
The FAQ’s recently posted by the Labor Department on its latest ERISA fiduciary investment advice guidance warn that this project is far from over, and are troubling in a number of respects.
Often, there are quotes, spellings, symbols, events, or experiences that many of us “know” occurred, but which did not actually happen. This phenomenon is known as the “Mandela Effect,” or “collective false memory.” Its name derives from the false recollection of many people that Nelson Mandela died in the 1980s in prison when, in fact, he lived until 2013. One example of such a false memory is the iconic quote, “Luke, I am your father,” which Darth Vader proclaimed to his son, Luke Skywalker, in the 1980 classic film “Star Wars: Episode V—The Empire Strikes Back.” However, that line was never uttered. The correct quote is, “No. I am your father.”
To be clear, we don’t think the securities regulators have false collective memories—other than, possibly, believing this line: “It’s easy for you to produce that information to us. You can just push a button.” And we don’t think the securities industry has such false memories either—other than possibly believing that the SEC sanctioned firms for using the word “may.” (Wait. That really did happen. ) Nonetheless, we thought it would be fun to explore this phenomenon and see how it fits with enforcement matters. After all, it’s important to examine ourselves and our surroundings to better understand what happened and why.