SEC Commissioner Hester Peirce recently criticized unpublished staff guidance that operates as de facto legal precedent without going through a process that ensures transparency and accountability. Referring to the securities regulatory framework as a “compliance minefield” where the wrong move can be a “matter of professional life or death,” Ms. Peirce questioned the propriety of informal staff positions about specific products or types of businesses. She characterized sub rosa staff guidance as secret law that binds firms without legislative authority, effective oversight, or consistency.
We agree that unpublished staff guidance can result in industry favoritism and (perceived) unfairness. The next question is how the SEC addresses Ms. Peirce’s very legitimate concerns.