Initial public offerings and normal policing of the securities industry are on hold as the federal government’s partial shutdown drags into a third week.
Many Securities and Exchange Commission officials can’t respond to emails or calls. Only a few are able to hold meetings. The agency’s normal back-and-forth with companies on capital raising, enforcement matters, and other issues is at a standstill. Ride-sharing companies Uber Technologies Inc. and Lyft Inc. could face delays in launching their highly anticipated IPOs.
The SEC has said it’s still helping with fee calculations and “emergency” enforcement matters but has put most rulemaking, filing processing, and other work to the side.
“Until the shutdown is resolved, all non-emergency questions, filings, and proceedings at the SEC are in a state of limbo,” David Tittsworth, a Washington-based Ropes & Gray LLP counsel and former Investment Adviser Association president, told Bloomberg Law. “To say the least, this is extremely frustrating for those who have business before the commission.”
Only 285 Working
Most of the SEC’s roughly 4,400 employees can’t work or even use their government cellphones and laptops. Only about 285 SEC employees engaged in “law enforcement activities” or needed to “protect life or property” are on the job, according to an SEC plan dated December 2018. The available staff are focused on “emergency situations involving market integrity and investor protection, including law enforcement,” according to the commission’s website.
The agency’s Division of Corporation Finance and Division of Investment Management are particularly limited in what they can do.
Federal law and regulations may limit the ability of the divisions to answer questions about anything other than fee calculations for the commission’s EDGAR corporate filings database, which is operating during the shutdown, according to the SEC. The Division of Corporation normally reviews IPOs and communicates with companies on disclosure requirements going forward, while the Division of Investment Management oversees mutual funds and other investment products.
A spokeswoman for SEC Chairman Jay Clayton declined to comment.
The closure hasn’t appeared to have had any immediate effects on funds’ normal operations, Matthew Beck, a spokesman for industry trade group Investment Company Institute, told Bloomberg Law.
IPOs could be a different story.
“Deals that are in SEC review are stuck for now, which is disrupting IPOs that had intended to launch in early January before their September financials go stale,” Annette Nazareth, a former Democratic SEC commissioner and current partner at Davis Polk & Wardwell LLP, told Bloomberg Law. “For IPOs with a longer timetable, there is concern that the shutdown will introduce delays to the normal cadence of SEC responses – which generally come 30 days after the initial filing and 10 days after subsequent filings.”
The amount of disruption the shutdown is having on Uber and Lyft isn’t clear. Representatives of the companies didn’t respond to requests for comment.
The SEC’s Enforcement Division has had to defer ongoing litigation and stop investigative work unless it involved “emergency enforcement matters,” which include threats to property, the agency said. The “limited number” of employees around are monitoring the SEC’s complaint systems and processing referrals that are emergencies, according to the agency.
The commission during the shutdown has wrapped up only a couple of cases, including a Dec. 31 $16 million settlement with Hertz Global Holdings Inc. and Hertz Corp. over alleged accounting and disclosure failures.
The closure may be stymieing cases that must be brought quickly, such as those involving pyramid schemes, offering frauds, and insider trading by people overseas, Alec Koch, a former SEC enforcement attorney who is now a Washington-based King & Spalding LLP partner, told Bloomberg Law.
“The staff is not able to be on the beat so to speak with respect to that kind of stuff right now,” he said.
Long-running investigations are less of a problem for the SEC during a closure, Koch said.
“For a complicated accounting investigation that takes three years, ultimately this will be a blip,” he said. “And I’m sure the staff will expect that those of us on the defense side will have continued to do whatever work we were supposed to be doing while they were shut down.”
Agency commissioners can be paid during the shutdown, but the agency has elected not to pay them until the SEC reopens, according to a commission spokeswoman. Most, if not all staffers, aren’t getting paid until the shutdown ends either. The SEC ran out of extra money it had Dec. 27, forcing it to shut down five days after other agencies closed Dec. 22.
Anthony Reardon, national president of the National Treasury Employees Union, which represents SEC employees, has called on Congress to reopen the government, telling lawmakers in recent letters that workers are “increasingly worried” about paying mortgages, rent, credit card bills, and student loans.
“It’s frustrating and demoralizing for people to feel like a pawn in this whole thing,” Koch said.