Jay Clayton Named SEC Chair At Pivotal Time For Industry

As a new leader takes the helm at the SEC, advisers wonder whether the regulator’s recent focus on retirement industry conflicts of interest will be relaxed. 

U.S. Supreme Court Justice Anthony Kennedy has sworn in Jay Clayton as the 32nd Chair of the U.S. Securities and Exchange Commission (SEC).

President Donald Trump nominated Clayton on January, 20, 2017, and he was confirmed by the Senate on May 2. The nomination by President Trump sends a clear signal to advisers about the likely style and character Clayton will bring to the Commission, especially compared with the ostensibly aggressive approach outgoing Obama-era Chair Mary Jo White brought to the role.

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While the SEC is by design supposed to be non-partisan, in that no more than three Commissioners may belong to the same political party at one time, the political party that controls the presidency and gets to name the chair can naturally expect a “friendlier” SEC. Right now the Commission actually has three open vacancies, and so the full picture of what the regulatory body will look and act like moving forward is still coming together.

Under White’s leadership, the SEC launched an ambitious effort to expand its role in policing the retirement investing industry. Readers may recall the 2015 launch of the “Retirement-Targeted Industry Reviews and Examinations (ReTIRE) Initiative,” or ReTIRE for short, as a prime example. That effort had SEC examinations staff closely review whether registered representatives and their firms met their obligations under the securities laws and self-regulatory organization (SRO) rules, with regard to selection of account types—especially rollovers from defined contribution plans to an individual retirement accounts—and performing diligence on retirement investment options, initial investment recommendations and ongoing monitoring of investments.

The same SEC initiative had examination staff work to “confirm that marketing materials and disclosures provided to retirement investors are not deceptive or misleading.” Staff were further ordered to “confirm that disclosures regarding fees are complete and accurate, and that credentials and other endorsements are valid.”

White also caught the attention of retirement specialist financial services providers when she signaled the SEC could sooner-rather-than-later move ahead on potentially changing its rules for how advisers and brokers must address and disclose conflicts of interest. Much of the industry speculation was that the SEC’s independent advice standards would soon be made to look more akin to the approach historically taken by the Department of Labor (DOL)—considered by many to be a higher standard of care. 

All of that speculation has pretty much been made irrelevant by the victory of Donald Trump in last year’s presidential election—at least for the short- and probably the medium-term. Now it falls to Trump’s pick for SEC Chair, Clayton, to continue or reverse the efforts championed by White.

NEXT: Clues from Clayton’s background 

Before joining the Commission, Clayton served as partner at Sullivan & Cromwell LLP, where he spent more than 20 years advising public and private companies on a wide range of matters including securities offerings, mergers and acquisitions, corporate governance, and regulatory and enforcement proceedings. His experience includes “counseling companies in various industries and advising market participants on capital raising and trading matters in the United States and abroad, including while residing in Europe for five years.”

Prior to joining Sullivan & Cromwell, Clayton was a law clerk for Marvin Katz of the U.S. District Court for the Eastern District of Pennsylvania. As one CNN analysis points out, more recently Clayton “defended the big banks for misbehavior during the financial crisis and advised Goldman Sachs on its government bailout.”

For those who want to get inside the head of the new SEC Chair, it should be noted that Clayton has authored many publications commenting on his work and the wider markets—on securities law, cybersecurity, and other regulatory issues. In the wider media, he has been referred to as “a Wall Street lawyer,” and the label seems to fit in that his writings often argue easing regulatory burdens can benefit both businesses and consumers.

“It is a tremendous honor to lead the SEC and to be sworn in by Justice Kennedy, whom I greatly admire,” Clayton said following his appointment. “The work of the SEC is fundamental to growing the economy, creating jobs, and providing investors and entrepreneurs with a share of the American Dream.”

Clayton added that he “looks forward to working with my fellow Commissioners and the talented SEC staff to ensure that our markets remain the safest and most vibrant markets in the world.”

Asset Manager Competition Is Good for Clients

Retirement plan advisers can help their plan sponsor clients take advantage of emerging opportunities for better deals and service coming out of fierce competition among asset managers. 

In the midst of market volatility and projections of a prolonged low-return environment, asset managers are seeking new ways to reach institutional investment buyers, including defined contribution (DC) retirement plans.

New research from Casey Quirk, a practice of Deloitte Consulting LLP, suggests this trend should present tremendous opportunity for retirement plan sponsors to take advantage of new innovations. On the flip side, it will be more important than ever for plan sponsors to monitor the marketplace of investment products to ensure they are still accessing top quality offerings.

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Casey Quirk projects that investment managers who do nothing to modernize their sales and service approaches could face more than $770 billion in collective outflows through 2021. However, the firm projects that those which transition their capabilities to serve the evolving preferences of institutional buyers can expect to see inflows of as much as $1.5 trillion during the same time period. This dramatic flow of capital could significantly reshape the asset management landscape retirement plans and other institutional investors operate in.

Casey Quirk suggests asset managers that haven’t traditionally sought to do business in the space will increasingly seek “new” institutional buyers such as DC plans, while significantly adapting their offerings and sales structures to better serve clients in “this saturated, competitive environment.”  

David O’Meara, a senior DC investment consultant at Willis Towers Watson, notes that as the retirement services industry shifts from the defined benefit (DB) to DC model, many asset managers are finding their products don’t exactly fit well into a DC plan sponsor’s investment menu. Product innovation can change that. O’Meara says managers will likely venture to create new vehicles like institutionally priced mutual funds or collective investment trusts (CITs).

“In the case of a CIT, the operational costs are lower and so they can operate on a more cost-effective basis which is crucial in today’s DC environment,” O’Meara says.

NEXT: Change doesn’t come easy 

Of course, this evolution won’t come easy for all asset managers—and there is a distinct chance that new players could emerge to challenge those that have traditionally been successful serving DB and DC plans.

O’Meara notes that many managers today are examining the best approaches to building target-date funds (TDFs), which continue to dominate new flows in the DC retirement planning market. Leading investment product manufacturers are also focused on serving the shift to greater use of passive investments, which coincides with a growing client focus on managing fees and increased skepticism about the long-term value of buying active management.

Considering all of this, O’Meara says sponsors can work with asset managers and adviser resources to “negotiate better fee terms or encourage managers to launch vehicles with a better fee structure from the retirement plan perspective … It’s a good opportunity for DC sponsors to revisit their managers and the fees associated with them.”

Jeff Levi, principal at Casey Quirk, tells PLANADVISER that overall asset managers are also responding to demographic shifts and investor preferences for different exposures like environmental, social, governance (ESG) parameters, which is becoming increasingly popular among Millennials, studies suggest. Although the conversation about building lifetime income through DC plans is still in its nascent stages, new in-plan retirement income vehicles could also act as entry points for asset managers looking to enter or improve their offerings in the DC space.

“Defined contribution has been designed as an asset accumulation system and has not really transitioned into a retirement vehicle,” O’Meara concludes. “Now, we’re starting to see retirement income solutions come to market. It’s certainly an area that we see taking hold in the coming years.”

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