SEC’s Aguilar Wants Stock Exchange Execs Liable for Failures

October 28, 2013 by Sarah Lynch

A proposal that would require stock exchanges to be better equipped to handle market disruptions does not go far enough to hold senior officials accountable for failures, Securities and Exchange Commission member Luis Aguilar said on Friday.

“The final rule should require an entity’s senior officers to certify in writing that the entity has processes in place and adequate resources and staffing to achieve compliance,” Aguilar said.

In prepared remarks for a speech to a securities conference in Atlanta, Georgia, Aguilar also reiterated his support for strict corporate penalties and the agency’s new policy of seeking admissions in some settlements, rather than letting defendants settle without admitting or denying the charges.

Aguilar said he also wants the final version of the market disruption rule to do away with a “safe harbor” provision that would shield exchanges and their employees from liability as long as they have policies that are reasonably designed to comply with the rules.

“Such a vague and unprecedented carve-out would water down the rule,” he said.

“The commission must adopt a strong and enforceable final rule that allows us to hold firms and individuals accountable when they fail to take adequate steps to comply with the rule.”

The SEC proposed in March the “Regulation Systems Compliance and Integrity,” or Reg SCI. It followed a series of major blunders in 2012, from Nasdaq’s botched handling of Facebook’s initial public offering to Knight Capital’s near collapse following a $440 million software glitch.

The proposal targets exchanges, clearing agencies, certain large “dark pool” trading platforms and other self-regulatory organizations.

It calls for these entities to report major systems disruptions and conduct testing on an industry-wide basis to ensure they have backup systems that are functioning properly.

The SEC delayed adopting the plan and reopened the public comment period after exchanges including the Nasdaq and rival NYSE Euronext, parent of the New York Stock Exchange, called for a major reworking of the proposal over concerns about its costs and an “unduly broad” requirement to disseminate information to member firms about certain incidents.

Since then, SEC Chair Mary Jo White has vowed to press ahead to finish the rule quickly in the wake of more recent technology glitches, including a three-hour halt on the Nasdaq earlier this summer due to a problem with the system that receives all traffic on quotes and orders.

It is unclear how the final rule may shape up.

While Aguilar has been vocally in favor of a tougher version of the rule, Michael Piwowar, a Republican SEC commissioner, issued a statement following the Nasdaq outage that urged the SEC to conduct more study “before moving forward with further rulemakings.”