This paper explores Securities and Exchange Commission comment letters that address firms’ use of non-Generally Accepted Accounting Principles (GAAP) measures in 10-Ks, 10-Qs, and earnings releases. We investigate the determinants of firms’ receiving non-GAAP comments and the revisions to non-GAAP reporting undertaken by these recipients. Firms that experience poor GAAP performance and emphasize non-GAAP measures are more likely to receive non-GAAP comments. Recipients of non-GAAP comments are more likely than other reviewed firms to abandon non-GAAP measures in future filings. When recipients of non-GAAP comments continue to report non-GAAP measures, they provide more justifications for the use and reduce the prominence of these measures. However, higher non-GAAP earnings and GAAP earnings differentials do not appear to attract non-GAAP comments. In addition, the amount of non-GAAP exclusions does not decrease after the receipt of non-GAAP comments. Overall, our findings suggest that non-GAAP comments are effective in deemphasizing non-GAAP measures.
{"title":"SEC Comment Letters on Firms’ Use of Non-GAAP Measures: The Determinants and Firms’ Responses","authors":"Koren M. Jo, Shuo Yang","doi":"10.2139/ssrn.3565868","DOIUrl":"https://doi.org/10.2139/ssrn.3565868","url":null,"abstract":"This paper explores Securities and Exchange Commission comment letters that address firms’ use of non-Generally Accepted Accounting Principles (GAAP) measures in 10-Ks, 10-Qs, and earnings releases. We investigate the determinants of firms’ receiving non-GAAP comments and the revisions to non-GAAP reporting undertaken by these recipients. Firms that experience poor GAAP performance and emphasize non-GAAP measures are more likely to receive non-GAAP comments. Recipients of non-GAAP comments are more likely than other reviewed firms to abandon non-GAAP measures in future filings. When recipients of non-GAAP comments continue to report non-GAAP measures, they provide more justifications for the use and reduce the prominence of these measures. However, higher non-GAAP earnings and GAAP earnings differentials do not appear to attract non-GAAP comments. In addition, the amount of non-GAAP exclusions does not decrease after the receipt of non-GAAP comments. Overall, our findings suggest that non-GAAP comments are effective in deemphasizing non-GAAP measures.","PeriodicalId":271630,"journal":{"name":"CGN: Enforcement by Public Regulators (Sub-Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115155140","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This comment letter to the SEC's staff roundtable on the proxy process requests the SEC to provide investment advisers with a liability safe harbor under the Investment Advisers Act of 1940 when using board voting recommendations in voting their proxies as long as their clients do not prohibit their use and no significant business relationship exists between the investment adviser and the company whose shares are being voted.
The implementation of this safe harbor will effectively reverse and correct a long-standing SEC policy where the value of proxy advisor recommendations is recognized but the value of board voting recommendations is not. This policy has existed even though a strong argument can be made that board voting recommendations are more informed and precise than proxy advisor voting recommendations. That argument was made in my comment letter dated October 12, 2018. This submission can be considered a continuation of that letter.
{"title":"Comment Letter to the SEC: The Value of Board Voting Recommendations","authors":"Bernard S. Sharfman","doi":"10.2139/ssrn.3302208","DOIUrl":"https://doi.org/10.2139/ssrn.3302208","url":null,"abstract":"This comment letter to the SEC's staff roundtable on the proxy process requests the SEC to provide investment advisers with a liability safe harbor under the Investment Advisers Act of 1940 when using board voting recommendations in voting their proxies as long as their clients do not prohibit their use and no significant business relationship exists between the investment adviser and the company whose shares are being voted. <br><br>The implementation of this safe harbor will effectively reverse and correct a long-standing SEC policy where the value of proxy advisor recommendations is recognized but the value of board voting recommendations is not. This policy has existed even though a strong argument can be made that board voting recommendations are more informed and precise than proxy advisor voting recommendations. That argument was made in my comment letter dated October 12, 2018. This submission can be considered a continuation of that letter.","PeriodicalId":271630,"journal":{"name":"CGN: Enforcement by Public Regulators (Sub-Topic)","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129199509","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The international reach of the financial crises of the last 20 years has triggered an explosion in international standards setting, creating a complex dynamic between national (or regional) regulation and international norms, between hard and soft law. This paper explores this phenomenon as it relates to capital markets by looking at the changing role of the International Organization of Securities Commissions (IOSCO), the standard setting process itself, issues associated with implementation of international standards and possible alternatives. In deciding that standard setting is its primary mission, IOSCO has assumed a role internationally of “quasi-regulator”, in much the same way (and for the same reasons) as the now defunct EU Committee of European Securities Regulators (CESR). Potentially, this new role puts IOSCO on a collision course with powerful state-level regulators. A further complication is the standard setting process itself. The academic discourse has focussed on the normative force of international standards, without paying much attention to the actual content of the standards or the process by which they come into being. Hegemonic powers, of course, play a disproportionate role, but there are a large number of other factors which determine their shape and substance. In order to shed new light on the standard setting process, this paper takes a close look at how one specific set, those relating to credit rating agencies (CRAs), has come into being. The results are surprising: in the face of a particular domestic regulatory failure, a series of international codes and principles concerning CRAs were developed by IOSCO. These international standards apply virtually exclusively to three US corporations - S&P, Moody's and Fitch - which together control over 95% of the international and 98% of their domestic market. Even more curiously, the CRA codes and principles, despite their inapplicability in most parts of the world, have been widely adopted and implemented. The responsibility for this waste of time and regulatory resources can be laid, in part, at the door of the IMF and the World Bank. Together with IOSCO and its taskmasters, the Financial Stability Board and the G20, the IMF and the World Bank appear to ignore the selective nature of globalization. Yet, there remains a great demand for international financial standards, especially among smaller or emerging economies. The paper concludes with some suggestions on future courses of action, in the face of the new internationalism.
{"title":"The New Internationalism? IOSCO, International Standards and Capital Markets Regulation","authors":"Cally Jordan","doi":"10.2139/ssrn.3257800","DOIUrl":"https://doi.org/10.2139/ssrn.3257800","url":null,"abstract":"The international reach of the financial crises of the last 20 years has triggered an explosion in international standards setting, creating a complex dynamic between national (or regional) regulation and international norms, between hard and soft law. This paper explores this phenomenon as it relates to capital markets by looking at the changing role of the International Organization of Securities Commissions (IOSCO), the standard setting process itself, issues associated with implementation of international standards and possible alternatives. In deciding that standard setting is its primary mission, IOSCO has assumed a role internationally of “quasi-regulator”, in much the same way (and for the same reasons) as the now defunct EU Committee of European Securities Regulators (CESR). Potentially, this new role puts IOSCO on a collision course with powerful state-level regulators. A further complication is the standard setting process itself. The academic discourse has focussed on the normative force of international standards, without paying much attention to the actual content of the standards or the process by which they come into being. Hegemonic powers, of course, play a disproportionate role, but there are a large number of other factors which determine their shape and substance. In order to shed new light on the standard setting process, this paper takes a close look at how one specific set, those relating to credit rating agencies (CRAs), has come into being. The results are surprising: in the face of a particular domestic regulatory failure, a series of international codes and principles concerning CRAs were developed by IOSCO. These international standards apply virtually exclusively to three US corporations - S&P, Moody's and Fitch - which together control over 95% of the international and 98% of their domestic market. Even more curiously, the CRA codes and principles, despite their inapplicability in most parts of the world, have been widely adopted and implemented. The responsibility for this waste of time and regulatory resources can be laid, in part, at the door of the IMF and the World Bank. Together with IOSCO and its taskmasters, the Financial Stability Board and the G20, the IMF and the World Bank appear to ignore the selective nature of globalization. Yet, there remains a great demand for international financial standards, especially among smaller or emerging economies. The paper concludes with some suggestions on future courses of action, in the face of the new internationalism.","PeriodicalId":271630,"journal":{"name":"CGN: Enforcement by Public Regulators (Sub-Topic)","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115276459","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The events of Sept. 11, 2001, prompted sweeping cross-border coordination efforts for securities regulators around the globe. After 9/11, the International Organization of Securities Commissions (IOSCO) forged an arrangement—the Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information (MMOU)—that standardizes the protocol for information sharing among participating securities regulators. I link this arrangement to the ability of the SEC to pursue U.S.-listed foreign firms by showing that the probability of enforcement increases by a factor of two or more in firms whose home countries enlist in the MMOU. A much more limited effect on enforcement is observed for similar but bilateral information-sharing agreements, indicating that a broader network creates powerful incentives that are difficult to replicate bilaterally. Because different countries enter the MMOU at different times, their enlistments create a set of staggered shocks to the SEC’s enforcement capacity for U.S.-listed foreign firms. These shocks are associated with predictable improvements in U.S. GAAP-reconciled earnings properties; this helps resolve questions about why the earnings quality of U.S.-listed foreign firms diverged from U.S. firms during pre-MMOU periods.
{"title":"The Effects of Cross-Border Cooperation on Enforcement and Earnings Attributes","authors":"R. Silvers","doi":"10.2139/ssrn.3047913","DOIUrl":"https://doi.org/10.2139/ssrn.3047913","url":null,"abstract":"The events of Sept. 11, 2001, prompted sweeping cross-border coordination efforts for securities regulators around the globe. After 9/11, the International Organization of Securities Commissions (IOSCO) forged an arrangement—the Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information (MMOU)—that standardizes the protocol for information sharing among participating securities regulators. I link this arrangement to the ability of the SEC to pursue U.S.-listed foreign firms by showing that the probability of enforcement increases by a factor of two or more in firms whose home countries enlist in the MMOU. A much more limited effect on enforcement is observed for similar but bilateral information-sharing agreements, indicating that a broader network creates powerful incentives that are difficult to replicate bilaterally. Because different countries enter the MMOU at different times, their enlistments create a set of staggered shocks to the SEC’s enforcement capacity for U.S.-listed foreign firms. These shocks are associated with predictable improvements in U.S. GAAP-reconciled earnings properties; this helps resolve questions about why the earnings quality of U.S.-listed foreign firms diverged from U.S. firms during pre-MMOU periods.","PeriodicalId":271630,"journal":{"name":"CGN: Enforcement by Public Regulators (Sub-Topic)","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116371716","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There has long been complaints that the heavy regulatory hand of Blue Sky Law administrators prevents capital formation by small issuers. Using data recently collected by the SEC, the article reasons that the problems capital starved small issuers encounter is not the state regulator. The problems are elsewhere. The paper explores whether intermediation may ultimately enable more startups to raise needed funds. For this to occur, however, the paper explores the formidable obstacles the broker must overcome in meeting demanding suitability requirements.
{"title":"Who Can't Raise Capital?: The Scylla and Charybdis of Capital Formation","authors":"James D. Cox","doi":"10.2139/ssrn.2442919","DOIUrl":"https://doi.org/10.2139/ssrn.2442919","url":null,"abstract":"There has long been complaints that the heavy regulatory hand of Blue Sky Law administrators prevents capital formation by small issuers. Using data recently collected by the SEC, the article reasons that the problems capital starved small issuers encounter is not the state regulator. The problems are elsewhere. The paper explores whether intermediation may ultimately enable more startups to raise needed funds. For this to occur, however, the paper explores the formidable obstacles the broker must overcome in meeting demanding suitability requirements.","PeriodicalId":271630,"journal":{"name":"CGN: Enforcement by Public Regulators (Sub-Topic)","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125263620","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The federal securities laws grant broad rulemaking authority to the Securities and Exchange Commission (SEC). In promulgating rules, the SEC must not only ensure that its rules protect investors and the public interest, but also consider the effects of its rules on efficiency, competition, and capital formation (the ECCF mandate).However, the SEC’s rulemaking authority has recently been frustrated. In two decisions striking down SEC rules, the D.C. Circuit held that the ECCF mandate requires a quantitative cost-benefit analysis. This contrasts with the SEC’s historic practice of qualitatively assessing the effects of its rules.While these D.C. Circuit decisions have been criticized for applying an inappropriately high standard of review to SEC rulemaking, this article identifies a more fundamental problem with these decisions: they interfere with the SEC’s power to administer the securities laws. This interference frustrates administrative law principles that lie at the heart of the division of power among the three branches of government.Requiring the SEC to engage in a quantitative analysis in rulemaking is especially troubling in a context where the SEC must pass numerous rules under the Dodd-Frank and JOBS Acts. These analyses will surely fail to capture the unquantifiable effects of SEC rules, such as their effect on firm wealth-creating strategic management processes. For these reasons, this article urges the SEC to exert its authority under securities laws and issue an explicit interpretation of the ECCF mandate in a way that best captures the full impact of its rules.
{"title":"The Sixth Commissioner","authors":"Nadelle Grossman","doi":"10.2139/SSRN.2408558","DOIUrl":"https://doi.org/10.2139/SSRN.2408558","url":null,"abstract":"The federal securities laws grant broad rulemaking authority to the Securities and Exchange Commission (SEC). In promulgating rules, the SEC must not only ensure that its rules protect investors and the public interest, but also consider the effects of its rules on efficiency, competition, and capital formation (the ECCF mandate).However, the SEC’s rulemaking authority has recently been frustrated. In two decisions striking down SEC rules, the D.C. Circuit held that the ECCF mandate requires a quantitative cost-benefit analysis. This contrasts with the SEC’s historic practice of qualitatively assessing the effects of its rules.While these D.C. Circuit decisions have been criticized for applying an inappropriately high standard of review to SEC rulemaking, this article identifies a more fundamental problem with these decisions: they interfere with the SEC’s power to administer the securities laws. This interference frustrates administrative law principles that lie at the heart of the division of power among the three branches of government.Requiring the SEC to engage in a quantitative analysis in rulemaking is especially troubling in a context where the SEC must pass numerous rules under the Dodd-Frank and JOBS Acts. These analyses will surely fail to capture the unquantifiable effects of SEC rules, such as their effect on firm wealth-creating strategic management processes. For these reasons, this article urges the SEC to exert its authority under securities laws and issue an explicit interpretation of the ECCF mandate in a way that best captures the full impact of its rules.","PeriodicalId":271630,"journal":{"name":"CGN: Enforcement by Public Regulators (Sub-Topic)","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115604606","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This document reviews the latest chapter in the long-running and continually evolving debate over the appropriate standard of care for broker-dealers and investments advisers under the federal securities laws. Following the SEC’s report to Congress under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”) of its Study Regarding a Harmonized Standard of Care for Broker-Dealers and Investment Advisers in January 2012. The U.S. Securities and Exchange Commission (“SEC”) published a Request for Data and Information (RFDI) in March 2013 that elicits input on the costs and burdens of several hypothetical approaches to harmonizing the standards of care governing broker-dealers and investment advisers. This material will highlight the SEC’s Request for Data and Information, summarize public input, and provide context within which to evaluate the FRDI in in view of the many stages of the regulatory examination of broker-dealer and investment adviser standards of care. Collectively, this information should provide a roadmap for evaluating the status of a harmonized standard of care for broker-dealers and investment advisers.Many catalysts for change have contributed to this latest regulatory development on a standard of care, including regulatory solutions galvanized by profound economic turmoil, and competing industry and regulatory initiatives. The document reviews these agents for change that ultimately led to a congressionally mandated SEC study on a harmonized broker-dealer and investment adviser standard of care in the Dodd-Frank Act. The material also charts regulatory and industry positions, addresses various regulatory and legislative solutions that functioned as substantive preludes to the Dodd-Frank Act and provides a framework of statutory and regulatory background.
{"title":"The SEC's Continuing Quest for a Harmonized Standard of Care Governing Broker-Dealers and Investment Advisers","authors":"Carl B. Wilkerson","doi":"10.2139/SSRN.2387032","DOIUrl":"https://doi.org/10.2139/SSRN.2387032","url":null,"abstract":"This document reviews the latest chapter in the long-running and continually evolving debate over the appropriate standard of care for broker-dealers and investments advisers under the federal securities laws. Following the SEC’s report to Congress under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”) of its Study Regarding a Harmonized Standard of Care for Broker-Dealers and Investment Advisers in January 2012. The U.S. Securities and Exchange Commission (“SEC”) published a Request for Data and Information (RFDI) in March 2013 that elicits input on the costs and burdens of several hypothetical approaches to harmonizing the standards of care governing broker-dealers and investment advisers. This material will highlight the SEC’s Request for Data and Information, summarize public input, and provide context within which to evaluate the FRDI in in view of the many stages of the regulatory examination of broker-dealer and investment adviser standards of care. Collectively, this information should provide a roadmap for evaluating the status of a harmonized standard of care for broker-dealers and investment advisers.Many catalysts for change have contributed to this latest regulatory development on a standard of care, including regulatory solutions galvanized by profound economic turmoil, and competing industry and regulatory initiatives. The document reviews these agents for change that ultimately led to a congressionally mandated SEC study on a harmonized broker-dealer and investment adviser standard of care in the Dodd-Frank Act. The material also charts regulatory and industry positions, addresses various regulatory and legislative solutions that functioned as substantive preludes to the Dodd-Frank Act and provides a framework of statutory and regulatory background.","PeriodicalId":271630,"journal":{"name":"CGN: Enforcement by Public Regulators (Sub-Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130843545","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
One of the centerpieces of the Dodd-Frank financial reform legislation was the creation of a new federal Consumer Financial Protection Bureau of the Federal Reserve. Few bureaucratic agencies in American history, if any, have combined the simultaneous degree of vast, vaguely-defined power and lack of public accountability of the new bureau. It is an independent agency inside another independent agency (the Federal Reserve). It is presided over by a single director (rather than a multi-member commission structure) appointed for a term of five years and insulated from removal by the President. It has a guaranteed budget drawn directly from the Federal Reserve and is thus outside of Congress’s appropriations process. Its actions are unreviewable by the Federal Reserve and can be checked bureaucratically only by a supermajority vote of the Financial Stability Oversight Commission (FSOC) and only if its actions would imperil the safety and soundness of the American financial services industry.Proponents of the new agency argue that this extreme level of independence is justified in order to provide the new bureau with insulation from political pressures. But the history of regulation has taught that insulation can be isolation, resulting in rudderless and inefficient regulation. In addition, scholars of regulation over the past several decades have identified a number of common pathologies associated with bureaucratic behavior. Astonishingly, the CFPB is structured in such a manner that it virtually guarantees the manifestation of those bureaucratic pathologies in practice: excessive risk-aversion, agency imperialism, and agency tunnel vision. Indeed, it is as if the CFPB were an agency frozen in amber during the Nixon Administration and thawed out today as if it were completely unaware of the lessons of the past several decades on how to structure an effective and efficient regulatory strategy.In the end, by manifesting these bureaucratic pathologies, the CFPB is likely to raise the price and reduce access to credit, thereby harming the very consumers it was founded to protect.
多德-弗兰克金融改革法案的核心内容之一是建立一个新的联邦消费者金融保护局(Consumer financial Protection Bureau of federal Reserve)。在美国历史上，很少有官僚机构(如果有的话)能像这个新成立的机构一样，同时拥有巨大的、定义模糊的权力和缺乏公共问责制。它是另一个独立机构(美联储)内部的一个独立机构。它由一名董事(而不是一个由多名成员组成的委员会结构)主持，任期五年，不受总统罢免。它有直接从美联储(fed)获得的保证预算，因此不受国会拨款程序的约束。它的行为不受美联储的审查，只能由金融稳定监督委员会(FSOC)的绝对多数投票进行官僚检查，并且只有当它的行为会危及美国金融服务业的安全和健全时。新机构的支持者认为，为了使新机构免受政治压力，这种极端的独立性是合理的。但监管的历史告诉我们，隔离可能是孤立，导致监管缺乏方向和效率低下。此外，在过去的几十年里，研究监管的学者们已经确定了一些与官僚行为相关的常见病症。令人惊讶的是，CFPB的结构实际上保证了那些官僚主义病态在实践中的表现:过度的风险规避、机构帝国主义和机构狭隘的视野。事实上，CFPB在尼克松政府时期就像一个被冻在琥珀里的机构，今天又解冻了，就好像它完全没有意识到过去几十年在如何构建有效和高效的监管战略方面的经验教训。最终，通过表现出这些官僚主义的病态，CFPB很可能会提高价格，减少获得信贷的机会，从而伤害到它本来要保护的消费者。
{"title":"The Consumer Financial Protection Bureau: Savior or Menace?","authors":"Todd J. Zywicki","doi":"10.2139/ssrn.2130942","DOIUrl":"https://doi.org/10.2139/ssrn.2130942","url":null,"abstract":"One of the centerpieces of the Dodd-Frank financial reform legislation was the creation of a new federal Consumer Financial Protection Bureau of the Federal Reserve. Few bureaucratic agencies in American history, if any, have combined the simultaneous degree of vast, vaguely-defined power and lack of public accountability of the new bureau. It is an independent agency inside another independent agency (the Federal Reserve). It is presided over by a single director (rather than a multi-member commission structure) appointed for a term of five years and insulated from removal by the President. It has a guaranteed budget drawn directly from the Federal Reserve and is thus outside of Congress’s appropriations process. Its actions are unreviewable by the Federal Reserve and can be checked bureaucratically only by a supermajority vote of the Financial Stability Oversight Commission (FSOC) and only if its actions would imperil the safety and soundness of the American financial services industry.Proponents of the new agency argue that this extreme level of independence is justified in order to provide the new bureau with insulation from political pressures. But the history of regulation has taught that insulation can be isolation, resulting in rudderless and inefficient regulation. In addition, scholars of regulation over the past several decades have identified a number of common pathologies associated with bureaucratic behavior. Astonishingly, the CFPB is structured in such a manner that it virtually guarantees the manifestation of those bureaucratic pathologies in practice: excessive risk-aversion, agency imperialism, and agency tunnel vision. Indeed, it is as if the CFPB were an agency frozen in amber during the Nixon Administration and thawed out today as if it were completely unaware of the lessons of the past several decades on how to structure an effective and efficient regulatory strategy.In the end, by manifesting these bureaucratic pathologies, the CFPB is likely to raise the price and reduce access to credit, thereby harming the very consumers it was founded to protect.","PeriodicalId":271630,"journal":{"name":"CGN: Enforcement by Public Regulators (Sub-Topic)","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132200620","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
“Control fraud” is the leading cause of bank failures and financial crises. In “control fraud” the persons controlling a seemingly legitimate entity use it as a weapon to defraud. This essay analyzes the role of regulators in two epidemics of control fraud: the savings & loan debacle of the 1980s and the ongoing financial crises that first became acute in the nonprime mortgage sector. Effective regulation is essential to prevent and contain such epidemics. An epidemic is the natural outcome of a “pathogenic environment” which requires a reservoir of hosts for the pathogens to infect, and “vectors” to spread the pathogen. The anopheles mosquito is a vector for malaria. The financial world incurs epidemics of fraud when there is a “criminogenic environment.” Factors that make an environment criminogenic include non-regulation, assets that lack verifiable values, and compensation systems that create perverse incentives. The vectors of such epidemics include rating agencies, accounting firms, and appraisers. The symptoms include financial bubbles. They aid accounting fraud by creating fictional income to hide real losses. This feature of bubbles is analogous to infectious disease. Symptoms (coughing, sneezing) both spread disease and weaken the host, making him more susceptible to other infections.Effective regulation is essential to prevent epidemics of accounting fraud. Economists who determine regulatory policy have operated like faith healers instead of public health specialists. Their policies create, rather than prevent, criminogenic environments. They did so in the S&L debacle, the Enron/WorldCom scandals, Russian privatization, and “The Washington Consensus.” Economists’ failures are particularly tragic because there was a brief period (1983-1987) when regulators did act like public health officials. Those actions are largely unknown, as are the regulatory and Justice Department actions in 1990-92 that produced the largest number of convictions of white-collar criminals in U.S. history and prevented a subprime lending crisis.The Clinton and Bush administrations seemed unaware of these regulatory successes. Their deregulatory policies produced a criminogenic environment. Ending effective financial regulation was a key step in producing that environment and delaying the diagnosis of the resulting epidemic of mortgage fraud and other forms of accounting control fraud.
{"title":"Why Regulators Must Fight 'Control Fraud' Like Public Health Specialists","authors":"W. Black","doi":"10.2139/ssrn.1536527","DOIUrl":"https://doi.org/10.2139/ssrn.1536527","url":null,"abstract":"“Control fraud” is the leading cause of bank failures and financial crises. In “control fraud” the persons controlling a seemingly legitimate entity use it as a weapon to defraud. This essay analyzes the role of regulators in two epidemics of control fraud: the savings & loan debacle of the 1980s and the ongoing financial crises that first became acute in the nonprime mortgage sector. Effective regulation is essential to prevent and contain such epidemics. An epidemic is the natural outcome of a “pathogenic environment” which requires a reservoir of hosts for the pathogens to infect, and “vectors” to spread the pathogen. The anopheles mosquito is a vector for malaria. The financial world incurs epidemics of fraud when there is a “criminogenic environment.” Factors that make an environment criminogenic include non-regulation, assets that lack verifiable values, and compensation systems that create perverse incentives. The vectors of such epidemics include rating agencies, accounting firms, and appraisers. The symptoms include financial bubbles. They aid accounting fraud by creating fictional income to hide real losses. This feature of bubbles is analogous to infectious disease. Symptoms (coughing, sneezing) both spread disease and weaken the host, making him more susceptible to other infections.Effective regulation is essential to prevent epidemics of accounting fraud. Economists who determine regulatory policy have operated like faith healers instead of public health specialists. Their policies create, rather than prevent, criminogenic environments. They did so in the S&L debacle, the Enron/WorldCom scandals, Russian privatization, and “The Washington Consensus.” Economists’ failures are particularly tragic because there was a brief period (1983-1987) when regulators did act like public health officials. Those actions are largely unknown, as are the regulatory and Justice Department actions in 1990-92 that produced the largest number of convictions of white-collar criminals in U.S. history and prevented a subprime lending crisis.The Clinton and Bush administrations seemed unaware of these regulatory successes. Their deregulatory policies produced a criminogenic environment. Ending effective financial regulation was a key step in producing that environment and delaying the diagnosis of the resulting epidemic of mortgage fraud and other forms of accounting control fraud.","PeriodicalId":271630,"journal":{"name":"CGN: Enforcement by Public Regulators (Sub-Topic)","volume":"148 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133902844","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2009-04-29DOI: 10.1111/j.1475-679X.2009.00330.x
Robert W. Holthausen
In this paper, I draw parallels between the literatures on the effects of law on the financial development of countries and on the effects of accounting standards on financial reporting outcomes. My central thesis is that these literatures are complementary in terms of what they have to say about understanding the effects of law, regulations and accounting standards on economic and financial reporting outcomes. Moreover, both literatures suggest that U.S. securities laws and financial reporting standards have taken a more regulatory direction over time. I then take these themes and draw implications for the effects of the adoption of International Financial Reporting Standards (IFRS) around the world at the time of adoption and over time.
{"title":"Accounting Standards, Financial Reporting Outcomes and Enforcement","authors":"Robert W. Holthausen","doi":"10.1111/j.1475-679X.2009.00330.x","DOIUrl":"https://doi.org/10.1111/j.1475-679X.2009.00330.x","url":null,"abstract":"In this paper, I draw parallels between the literatures on the effects of law on the financial development of countries and on the effects of accounting standards on financial reporting outcomes. My central thesis is that these literatures are complementary in terms of what they have to say about understanding the effects of law, regulations and accounting standards on economic and financial reporting outcomes. Moreover, both literatures suggest that U.S. securities laws and financial reporting standards have taken a more regulatory direction over time. I then take these themes and draw implications for the effects of the adoption of International Financial Reporting Standards (IFRS) around the world at the time of adoption and over time.","PeriodicalId":271630,"journal":{"name":"CGN: Enforcement by Public Regulators (Sub-Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130490334","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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