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Alternative Market Briefing

Other Voices: SEC releases guidance...about guidance

Tuesday, September 18, 2018

By: Cydney Posner, Cooley LLP

SEC Chair Jay Clayton issued a statement intended to make clear the importance of the distinction between SEC rules and regulations-which are adopted in accordance with the APA, have the effect of law and are enforceable by the SEC-and staff guidance, such as the CDIs and various letters and speeches, which is nonbinding and not enforceable by the SEC or others. What was the impetus for his statement?

Clayton further underscored that the SEC must "keep this important distinction in mind," noting that he had instructed the Directors of Enforcement and Compliance Inspections and Examinations to "further emphasize this distinction to their staff." However, he also indicated that Corp Fin and other Divisions "have been and will continue to review whether prior staff statements and staff documents should be modified, rescinded or supplemented in light of market or other developments. I believe that public engagement on staff statements and staff documents is important and will assist the Commission in developing rules and regulations that most effectively achieve the SEC's mission. I encourage such engagement, with the recognition that it is the Commission and only the Commission that adopts rules and regulations that have the force and effect of law."

Was there an event that precipitated this statement? Perhaps, but more likely it was the statement issued on September 11 by several other agencies, clarifying the difference between ......................

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