LDN - Business

Trump's SEC pick Clayton points to capital formation, not enforcement

[January 05, 2017] By Sarah N. Lynch

WASHINGTON (Reuters) - With his selection of deal-making attorney Walter "Jay" Clayton to head the U.S. Securities and Exchange Commission, President-elect Donald Trump is signaling that the agency will try to reduce regulations that critics see as burdensome or hindering corporate growth.

Trump announced on Wednesday that he intends to nominate Clayton, a partner in the New York office of law firm Sullivan & Cromwell, to lead the agency that polices and regulates Wall Street.

Clayton specializes in public and private mergers and acquisitions and capital-raising efforts, and notably worked on the initial public offering of Alibaba Group Holding Company <BABA.N>.

He also helps companies navigate regulatory and enforcement actions, including a number of cases that involved mortgage securities. At least two clients that Clayton has represented - Alibaba and Ally Financial - have both disclosed in recent years that they are being investigated by the SEC; it is not clear whether either review has been concluded.

"Jay Clayton is a highly talented expert on many aspects of financial and regulatory law, and he will ensure our financial institutions can thrive and create jobs while playing by the rules at the same time," Trump said in a statement.

Clayton did not immediately respond to a request for comment, but in a statement released by the Trump transition team, he pledged to ensure investors and companies have confidence to invest in America.

Many Republicans in recent years have criticized the SEC for focusing too much on enforcement, especially under outgoing chair Mary Jo White, a former federal prosecutor, and not enough on its other missions, including writing rules that promote capital formation.

Legal experts said Clayton's background is more in line with some past SEC chiefs, and points to less regulation and perhaps a shift away from White's policy in which the agency fined firms for smaller violations in an effort to deter bigger ones.

"As a day-to-day corporate transactional lawyer, he’ll know what these regulations are like," said Walter Van Dorn, a partner at BakerHostetler and former SEC official.

INDUSTRY TIES

As is often the case with SEC chair nominees, Clayton has some close personal and professional ties to Wall Street.

During the height of the 2008 financial crisis, Clayton worked on major deals involving big banks, including Barclays Capital's acquisition of Lehman Brothers' assets, the sale of Bear Stearns to JP Morgan Chase, and the U.S. Treasury Department's capital investment in Goldman Sachs <GS.N>, according to his law firm's website.

He has helped draft comment letters to the SEC that advocated for less onerous restrictions for foreign public companies, and also participated in a 2011 article which advocated for less zealous enforcement of the Foreign Corrupt Practices Act.

Clayton's background representing Goldman and other Wall Street firms is likely to come up during his Senate confirmation hearing. His wife, Gretchen Butler Clayton, is employed by Goldman Sachs as a private wealth advisor.

Democrats including Massachusetts Senator Elizabeth Warren have previously been critical of any potential SEC nominee, including those from within their own political party, who have strong ties to Wall Street.

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A general exterior view of the U.S. Securities and Exchange Commission (SEC) headquarters in Washington, June 24, 2011. REUTERS/Jonathan Ernst

"It's hard to see how an attorney who’s spent his career helping Wall Street beat the rap will keep President-elect Trump's promise to stop big banks and hedge funds from ‘getting away with murder,'", said U.S. Senate Banking Committee Ranking Member Sherrod Brown.

Like White, also a former Wall Street lawyer, Clayton will likely need to recuse himself on some matters and divest certain stock holdings.

Under federal ethics rules, he will be recused for one year from voting on any particular matter if a firm or individual is being represented by Sullivan & Cromwell.

Prior clients who have been represented by Sullivan & Cromwell in SEC cases have included UBS and Fifth Third Bank.

He will also be recused for a year from working on matters that involve clients he represented in the past year, and recused indefinitely if a deal he previously worked on comes up during SEC litigation.

The length of time could be longer if Trump opts to continue President Barack Obama's current policy, which extended the recusal period by an additional year.

Trump still needs to fill two other SEC vacancies to round out the five-member panel. Without a full panel, possible recusals could in certain cases lead to a deadlocked vote on some enforcement matters.

Perhaps the trickier conflicts to navigate will involve his wife's employment at Goldman Sachs, said Richard Painter, a law professor at the University of Minnesota who served as the chief ethics lawyer at the White House under President George W. Bush.

"You cannot be chairman of the Securities and Exchange Commission and have you or your spouse have any financial interest in Goldman Sachs," he said.

To manage the conflict, he said, she would need to divest any stock or stock options in the company and negotiate a flat salary.

It could not be immediately determined whether Gretchen Butler Clayton does own Goldman stock. She did not immediately respond to an email seeking comment.

Breakingviews TV: An insider at the SEC http://reut.rs/2hQq8ud

SEC subpoenas Ally Financial over subprime auto lending (2014): http://www.reuters.com/article/ally-financial-investigation-idUSL1N0SQ15W20141031

(Reporting by Sarah N. Lynch in Washington, D.C., additional reporting by Doina Chiacu in Washington and Karen Freifeld and Olivia Oran in New York; Editing by Linda Stern and Grant McCool)

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