Kara Stein, a Democratic Commissioner who previously served as a Banking Committee aide to Sen. Jack Reed, has openly rebelled against the waiver policy since arriving at the SEC in August 2013, voting against waivers on five occasions. This April, she went public with a
blistering dissent against a waiver for Royal Bank of Scotland, after the
criminal conviction of their subsidiary over rigging the London Interbank Offered Rate (LIBOR). Thanks to the waiver, Royal Bank of Scotland could continue to offer securities to investors as a “well-known seasoned issuer,” without SEC approval of each offering. This was the 30th such waiver since 2010, 29 of which went to large ins utions and broker-dealers. “I fear that the commission’s action to waive our own automatic disqualification provisions arising from RBS’s criminal misconduct may have enshrined a new policy,” Stein said, “that some firms are just too big to bar.”
Stein, a
pro-reform regulator whose insistence on loophole closures significantly improved the final Volcker rule, has persuaded Luis Aguilar, her Democratic colleague, to agree with her stance that automatic penalties from civil or criminal misconduct should not be waived. “The commission and its staff should not be in the business of rubber-stamping and approving all waiver applications simply because a request is made,” Aguilar has said.
The two were able to change SEC policies on waivers, forcing signoff by the commissioners rather than at the staff level. But because SEC chairwoman Mary Jo White typically voted with the commission’s two Republicans, the waivers continued to go through.
In the Bank of America case, however, White had to recuse herself from the decision. As a private attorney, White represented Ken Lewis, who was CEO of Bank of America at the time that they fraudulently sold mortgage-backed securities to investors without disclosing the poor quality of the underlying loans. So without her vote, the commission is
deadlocked at 2-2, threatening Bank of America’s ability to secure the waivers.
The penalties kick in as soon as a judge approves the settlement, so Bank of America has sought to delay approval, pending the status of the waivers. As long as Stein and Aguilar hold firm, the sanctions will trigger, or the entire SEC settlement will disintegrate, creating more legal exposure for Bank of America