In a statement issued last week on the Securities and Exchange Commission’s (“SEC”) staff guidance, chairman Jay Clayton affirmed that the guidance is “nonbinding” with no “enforceable legal rights or obligations.” Clayton noted that statements the SEC staff issues often contain a disclaimer emphasizing the difference between the agency’s rules and regulations and staff viewpoints. He stressed that the SEC should consider this distinction when carrying out its market oversight responsibilities.
Clayton gave no reason for deciding to express the distinction between SEC rules and staff opinions. However, he did note that federal banking groups had issued a similar statement. In addition, Clayton has ordered the SEC’s officers to review whether any guidance needs to be amended.