The Power of “No”: SEC Commissioner Peirce on Enforcement As Last Resort

An article in a legal publication argued that SEC Commissioner Hester M. Peirce has a tendency to vote “no” on cases the SEC’s Division of Enforcement has recommended the SEC bring or settle in-house. Peirce responded to that article and explained “the why behind [her] no” in a recent speech. Peirce’s remarks provide insight into her view of the overarching philosophy of the SEC’s enforcement program; several factors that guide her consideration of enforcement recommendations; and certain practices that give her pause when reviewing enforcement actions. This article analyzes Peirce’s speech and provides key takeaways from it according to lawyers with SEC enforcement experience. For more on the SEC’s enforcement agenda, see our two-part series offering insight from former senior SEC attorneys: “Chair Clayton’s Priorities and the Current Enforcement Climate” (Dec. 7, 2017); and “The Current Regulatory Climate, Adviser Examinations and the Enforcement Referral Process” (Dec. 21, 2017).

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