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New SEC chair needs to tackle these 5 big issues so the government can do a better job for investors

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For the past four years, a majority of SEC commissioners have been Republican.

While the commissioners agreed unanimously on many technical and enforcement issues, policy votes divided on party lines. In 2020, more than half of final rule-makings were partisan affairs with dissents from Democratic commissioners. 

Partisan politics is part of Washington, D.C. Yet now a window is open for a restart if Joe Biden appoints a diplomatically minded SEC chair who can build a strong consensus among the four other commissioners. Balanced rulemaking can deepen the SEC’s legitimacy, improve staff morale and enhance its ability to resolve difficult problems.

Read:Brace for an aggressive SEC under Biden — from climate change to free-trading apps

Here are five issues for a consensus agenda set by the new Chair:

1. Open private securities markets intelligently: The SEC has long allowed only sophisticated investors to buy private securities, because these securities have minimal liquidity and private issuers provide investors with little information about the risks involved.

In the past few years, the Commission seems to have bought the argument that the average Joe should be able to invest in the next Google before it went public. But most startups fail, and successes go through multiple rounds of complicated funding that are difficult to evaluate. 

The main guards against the dangers of alluring speculation in private securities have been quantitative requirements for “accredited” investors — $200,000 in annual income or $1 million in net worth. Unfortunately, the SEC has declined to update these requirements; originally adopted in 1983, they have shriveled by two-thirds from inflation. Instead, the SEC added a way around these requirements for investors who take any of various broker tests. Except that many of the tests permitted do not focus on risks, valuation and governance in private offerings.

Worse, the SEC missed an opportunity to build better requirements with a loss absorption test — linking the amount of permissible illiquid private investments to an investor’s net worth. This approach has been workable in so-called “Reg A+” offerings, which allow companies to raise $50 million from a broad array of investors, including ordinary ones. It should be a nonpartisan point of agreement for the new SEC chair to press for smarter rules, tailoring low-information offerings to investors who can afford to absorb losses as needed.  

2. Improve the voting system to promote competition: Instead of addressing basic flaws in the “plumbing” of the voting system, the SEC added substantial costs and risks for proxy advisers, which analyze voting issues for institutional investors. The justification for this new rule — beyond disclosure of potential conflicts by proxy advisers — was flimsy.  There was little evidence showing proxy advisers make widespread errors, and many letters seemingly from retail investors favoring the proposed rule turned out to be generated indirectly by lobbyists.  Real investors — who need independent analysis to vote intelligently — strongly opposed the proposal. 

The SEC backed off its proposed requirement that proxy advisers submit draft recommendations to the subject company before sending them to their clients.  Nevertheless, the SEC mandated that advisers include a link in their proxy recommendations to any opposing view by the subject company. This mandate is unnecessary since the company will include its opposition in its proxy statement, which is sent to all its shareholders. And proxy advisers will have to wait for the mailing of the company’s proxy statement to include the mandated link.  

The SEC also primed the voting arena for litigation, weaponizing its antifraud rule against advisers.  Rather than mandate end-to-end vote confirmations that could improve proxy “plumbing,” the SEC set out examples of how proxy advisers could be sued. Such litigation threats will discourage competition in the already concentrated industry of proxy advisers. It should be a nonpartisan point of agreement to revise this rule to promote free speech and healthy competition in the market for voting advice.  

3. Bring regulatory parity to financial advisers: When individuals employ professionals to help make investments, most do not know whether they are hiring investment advisers (IAs) or broker-dealers (BDs). Even fewer know that conduct of different professionals is governed by different rules — a higher fiduciary standard for IAs and a lower suitability standard for BDs.  After an admirably consultative process, the SEC had a chance to clear up confusion by leveling the playing field and applying a fiduciary standard to all retail professionals. Instead, the SEC adopted the “best interest” standard for BDs.

Confusingly, the new standard is not what it appears. As with suitability, the standard applies only when specific recommendations are made. By contrast, IAs are always governed by fiduciary duties. Even when the new standard applies, BDs may recommend securities that generate higher BD compensation than plausible alternatives. Such conflicts are permissible for BDs (but not IAs) if disclosed and BDs make “reasonable” efforts to mitigate them.  

While the new standard is tougher than the suitability standard, we doubt retail investors will understand the new BD disclosures.  Indeed, the SEC added to investor confusion by choosing a name for the new standard suggesting — incorrectly — that BDs will always act in investors’ best interests, rather than their own interests. It should be a non-partisan point of agreement that retail investors deserve clarity about the standards applicable to any professional. The SEC could apply the fiduciary standard to any professional advice to retail investors, and reserve BD status for those serving institutional clients and those providing execution-only services.  

4. Improve the use of non-GAAP measures, especially in compensation disclosures: Many companies use non-GAAP measures in earnings releases, earnings calls and compensation committee reports. While non-GAAP measures can be useful in understanding a company’s performance, they can be misused. For example, non-GAAP metrics often exclude expenses for stock compensation, annual restructurings and litigation settlements.  Almost always, companies try to use non-GAAP measures to increase earnings — sometimes turning losses to profits. 

The SEC has for some time required companies to give equal prominence to GAAP and non-GAAP as well as to reconcile the numbers, and has brought at least one enforcement action for failure to do so.  Yet the SEC has not taken a similar approach for compensation committee reports, which also often use non-GAAP measures. Investors struggle to make sense of how companies assess performance in approving large compensation packages. Outside of formal filings, the SEC has not aggressively enforced its views on the value of giving equal prominence of GAAP and non-GAAP numbers in quarterly press releases and earnings calls. 

In April 2019, the Council of Institutional Investors filed a petition with the SEC asking that compensation reports explain why non-GAAP measures are better for determining executive pay than GAAP, and that they include a reconciliation of these two sets of numbers. The SEC ignored the petition.  

It should be a nonpartisan point of agreement to start a rulemaking process on the use of non-GAAP measures in compensation committee reports, while bolstering enforcement of the equal prominence doctrine outside of formal SEC filings.  


The SEC should play an active role in developing ESG disclosures for U.S. companies.

5. Rationalize and make comparable ESG disclosures: In 2020, the SEC adopted broad-based amendments to modernize basic disclosure requirements for public companies. Regulation S-K contains topics covered in prospectuses and annual reports, including the framework for management’s discussion of results and prospects. In the rulemaking, many commentators called for a rationalized, uniform set of disclosure requirements for diversity and climate change. Although the SEC did add human capital as a general topic, it adopted no requirements to enable comparisons across companies.   

These proceedings were missed opportunities for the SEC to play a meaningful role in the development of consistent disclosures on the financially significant topics of diversity and climate risk. Although an increasing number of companies already include disclosures on these topics, executives and investors alike complain about the myriad of different standards. If the SEC continues to watch passively, other countries will press ahead and indirectly shape disclosures in the world’s largest capital market. There should be a nonpartisan agreement that the SEC should play an active role in developing ESG disclosures for U.S. companies.

The SEC does not have to tackle the task of creating new disclosure requirements from scratch.  Instead, it could ask public companies to choose from recognized standards for disclosure — such as those of the Sustainability Accounting Standard Board or the Task Force on Climate-Related Financial Disclosures — and then monitor and assess how investors are using the new disclosures. Through such an approach, the SEC could in effect run pilot programs to ascertain which standards provide the most useful information to investors. On the basis of such pilots, the SEC could evolve a consistent and comparable set of disclosure requirements on diversity and climate risks.

Coming into the role, the new SEC chair can best serve investors by building a bipartisan consensus on reforming three recent rules — on accredited investors, proxy advisers and broker conduct — as well as proposing rules on non-GAAP metrics in compensation committee reports, proxy plumbing, and financially material information about climate change and diversity. Together these action items would provide a full but workable agenda for the SEC.  

Robert Pozen is a senior lecturer at the MIT Sloan School of Management and formerly vice chairman of Fidelity Investments. John Coates is the John F. Cogan Professor of Law and Economics at Harvard Law School.

More:These are the last days of small government and investors need to prepare for ‘neofiscalism’

Also read: Biden’s campaign manager called Mitch McConnell ‘terrible’ and Republicans something worse — but believes bipartisanship is possible



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I have a First World problem: I earn $500K, and have $1 million in assets. Should I buy a $30K bracelet during a global pandemic?

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I have a mundane First World problem that may or may not warrant your attention. But I read your column, and thought you could help me. It’s something that has been troubling me for some time. Should I buy a $30,000 piece of jewelry?

I have a $500,000 stable annual income, no debt, my kids have their private college tuition and retirement fully funded, and I have an additional $1 million in investable assets in various bank and brokerage accounts. My husband and I are in our late 40s, early 50s.

We have always lived a financially disciplined lifestyle. We avoid impulse buys, while spending liberally on things we truly enjoy and care about, including annual multi-week vacations for the family, organic food, home upgrades for our hobbies, and supporting our favorite charities.


‘The good news is, this particular brand of jewelry has been holding its value very well over a long horizon.’

I personally adore quality designer jewelry, and get a little thrill every time I look at them on my wrist and finger. I have never spent $30,000 on one piece of jewelry, and I feel some guilt spending that much money on something primarily for myself, not the family.

This particular piece, a bracelet, has been on my radar since 2019, and I found myself coming back to it time and again. I spent hours following online discussion threads, researching its resale value (in case my daughter doesn’t want it) and insurance against loss, etc.

The good news is, this particular brand of jewelry has been holding its value very well over a long horizon; in fact, it boasts the highest resale value in the last couple of years, according to top luxury resale and consignment sites.

However, I just can’t bring myself to pull the trigger: spending almost 3% of our investable assets on a piece of jewelry just feels very excessive to me. I tell myself to reconsider in a few years when we get to a higher net worth to make the purchase easier to justify and stomach.

My husband said I should buy it sooner, and enjoy it for a few more years. I realize the jewelry aspect makes this a highly personal-preference question. I guess a more generic question could be, does a $30,000 discretionary spend sound reasonable in our financial situation?

A Bracelet Lover

You can email The Moneyist with any financial and ethical questions related to coronavirus at qfottrell@marketwatch.com, and follow Quentin Fottrell on Twitter.

Dear Bracelet Lover,

Before the world and its mother comes down on you like a ton of bricks for asking this question during a pandemic — and before said world and its mother comes down on me for answering your question — I will say that I find your letter curious. Not “$30,000 bracelet” curious. But curious, nonetheless.

The reason: I don’t believe this magnificent, guilt-ridden obsession is really about the bracelet at all. The object of your desire could be anything: It could be a Tesla Model 3 or a used GT-R. It could be a Fabergé egg, aluminum siding, or even a $30,000 Hermès Kelly clutch bag.

It’s extravagant in the way a motor vehicle or kitchen reno is extravagant. Did you know the average cost of a light vehicle in the United States is over $40,000? You can’t drive a $30,000 bracelet, but you can wear one and drive a $10,000 car to get you from A to B. Who’s more mundane now?


‘The reason: I don’t believe this magnificent, guilt-ridden obsession is really about the bracelet at all. The object of your desire could be anything.’

I get it. There is a thrill in buying something so outrageously out of your price range. How will that make you feel? What kind of connection will you have to this object? Will other people notice it? Will you tell them how much it cost? Would owning it confirm any privately-held ambitions you have for yourself?

You are not just buying a $30,000 bracelet. You are, perhaps, buying your way out of an old way of seeing yourself. That may or may not last. Or maybe you truly believe that it will bring you joy as a family heirloom, and you can resell it at the same or a higher value, if a prospective buyer or the real world come knocking.

Will wearing such an item give you more confidence to sail past the snootiest members of your tennis club or the maître d’ at the most popular Michelin restaurant in town? Please know that I’m not speaking about you here. I’m talking about anyone who splashes out, during a pandemic or not.

About the pandemic. Researching this purchase may lift your spirits, and actually help you escape the mundane. It may or may not be a coincidence that you choose now to do something so bold and new. It’s a $30,000 sop to coronavirus. A million-dollar spit in the ocean during a truly difficult year.


For some people, spending $30,000 on one luxury item is a way of showing their spouse or, indeed, themselves that they are worth that much.

For some people, spending $30,000 on one luxury item is a way of showing their spouse or, indeed, themselves that they are worth that much. The diamond industry, for better or for worse, is based on that conceit. You need a rock on your finger to show the world that it’s true love.

For others, it’s about showing the world that you can’t mess with them and, like Leona Helmsley, the Queen of Mean, will show the world there are no little people, only big handbags — like this woman who sued a country club in New Jersey after a waiter spilled wine on her $30,000 Hermès Kelly clutch bag.

Would I spend $30,000 on a piece of jewelry if I were in your position? Probably not. Should you? That’s not for me to say. That’s for you to find out. The great Suze Orman would probably give you a “yay” or “nay” on the matter, but I’m not Suze Orman. That’s not my gig, nor is it my style.

I’ll tell you what is my style: A pair of chocolate brown Donna Karan trousers that I bought for a friend’s wedding in New York 20 years ago. I had traveled here from Dublin. A friend took me to Saks Fifth Avenue. I was fresh out of college, and thought, “How expensive could they be?”


You have formed an attachment to this bracelet, or at least to the idea of this bracelet. Let that go for a moment. What else you could do with $30,000?

I rolled up to the cash desk after they were adjusted three ways from Sunday, and the clerk told me they were $450. I handed over my fresh-out-college credit card and watched in horror as the cashier rung up the equivalent of one month’s rent. I was Jason, and those threads were my golden fleece.

I loved those dress pants. They moved like slow motion. I cared for them like priceless silk and, one day, I dropped them into a dry cleaners in Dublin. I noticed some lights were out that day, but I paid no heed. It was 2008. The dry cleaners went bankrupt, and padlocked its doors. I never saw those Donna Karan trousers again.

What has all that got to do with your $30,000 bracelet? Three things. 1. This piece of jewelry has something to teach you, and you don’t have to buy it to learn what that is. 2. This is a trouser- and judgment-free zone. 3. Our monetary dilemmas are rarely about what we think they’re about.

You have formed an attachment to this bracelet, or at least to the idea of this bracelet. Let that go for a moment. What else you could do with $30,000? Something different, but equally novel that perhaps could also have an impact? You don’t even have to spend the money on you.

Buy or don’t buy it. Remember this: However it makes you feel, you can feel that way without it. Whatever properties, provenance or millesimal fineness this piece of jewelry holds, your own qualities as a human being outweigh it. Whatever obsession it sparks in you, you can out-spark it.

The Moneyist: Before I give my fiancée a $7,000 diamond engagement ring, I want her to promise to bequeath it to my daughter

Hello there, MarketWatchers. Check out the Moneyist private Facebook
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 group, where we look for answers to life’s thorniest money issues. Readers write in to me with all sorts of dilemmas. Post your questions, tell me what you want to know more about, or weigh in on the latest Moneyist columns.

By submitting your story to Dow Jones & Company, the publisher of MarketWatch, you understand and agree that we may use your story, or versions of it, in all media and platforms, including via third parties.

The Moneyist: ‘The thought of her keeping these ill-gotten funds just chaps my behind’: My granddaughter, 7, lives with me — yet her mother received her stimulus





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My son, 18, says I should hand over the $1,400 adult-dependent stimulus. He claims it belongs to him. Who’s right?

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Dear Quentin,

We’re having a debate in our house regarding the latest stimulus payment. I claim head of household and have two 18-year-old adult dependents that I claim on my taxes. I received a $1,400 stimulus for each of us. My 18-year-old son claims that I must give him this money stating that it is meant to be given to the adult dependent.

I say it’s not meant for him, as I claim him as a dependent on my taxes because I pay more than half of his household expenses (actually all of his expenses) and this money will be used to offset the expense of raising him. If you have any information you can share to shed some light on the debate at hand, I’d much appreciate it.

I keep searching the internet for some proof that I must give him this money but keep coming up empty-handed.

Fingers crossed

You can email The Moneyist with any financial and ethical questions related to coronavirus at qfottrell@marketwatch.com, and follow Quentin Fottrell on Twitter.

Dear FC,

If the money was meant for your son’s use, it would have been sent to your son. The clue is in the wire transfer. He is a dependent and, as such, the money is meant to be used for his care. They are emergency funds to be used for food, clothing, utilities, and anything else that adds to the cost of running a household and, yes, stimulating the economy.

Let’s assume your son is correct in his belief that the money is for his use, and could (or should) be used for his own expenditures — from meals out with friends to new sneakers. In that case, he should be of independent means and pay for everything else: rent, food, transportation. I have a feeling that $1,400 would be used up pretty, pretty, pretty fast.

If you have a balance on your credit card for family purchases, what reason would your son have for you not using part of the total economic stimulus payment to pay that balance off? This is an opportunity to lay bare the economics of running a household, so your son can have a bird’s eye view on how to manage a budget, and the costs of each family member.


‘The problem with putting food in the cupboards: Some kids think it appears there magically. And I don’t only mean that the food is conjured up through some act of existential bookkeeping.’


— The Moneyist

The problem with putting food in the cupboards: Some kinds think it appears there magically. And I don’t only mean that the food is conjured up through some act of existential bookkeeping, but that it actually makes its way from the supermarket bags to the cupboards without any human intervention whatsoever. It takes time to earn the money, shop and to put those groceries away.

As an adult dependent over the age of 16, your son did not qualify for the first two stimulus checks. Under President Biden’s $1.9 trillion American Rescue Plan, however, parents may claim their adult children as dependents. The amount is based on your income (payments fall for individuals earning $75,000 a year and up and couples making $160,000 a year or more).

The $1,4000 is not based on your son’s circumstances and, as such, the money should be used at your discretion. If you can afford it, however, I suggest talking through your son’s priorities and working with him on how he could spend all or part of the $1,400. It may be that you can help your son feel empowered to spend it on his own upkeep.

But — and this is a big “but” — if he wants you to buy necessities while he uses the money for his own enjoyment, that’s called “pocket money” not an economic impact payment, and that’s something he is given as a child or needs to earn himself. If you decide upon a potential compromise, the final answer will be determined by your son’s own financial priorities.

The Moneyist: I’m a farmer in my late 30s, live a frugal lifestyle, and my son has a disability. Should I pay extra on my mortgage — or save for retirement?

Hello there, MarketWatchers. Check out the Moneyist private Facebook
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 group, where we look for answers to life’s thorniest money issues. Readers write in to me with all sorts of dilemmas. Post your questions, tell me what you want to know more about, or weigh in on the latest Moneyist columns.

By submitting your story to Dow Jones & Company, the publisher of MarketWatch, you understand and agree that we may use your story, or versions of it, in all media and platforms, including via third parties.





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These money and investing tips can help you decide whether to ‘sell in May and go away’

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Don’t miss these top money and investing features:

Sell in May and go away? Not so fast. These money and investing stories, popular with MarketWatch readers over the past week, can help you position your portfolio as the U.S. stock market enters its typically weaker six-month stretch — although that certainly wasn’t the case in 2020. So while it makes sense to seek out market sectors that are stronger in the summer months, it doesn’t change the fact that time in the market, and not market-timing, has been the most reliable creator of wealth.



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