SEC Commissioner and ABA Suggest Reconsideration of Seaboard Report

Friday February 9, Commissioner Paul Atkins suggested to attendees at the annual SEC Speaks program presented by the Practicing Law Institute in Washington, D.C., that the SEC’s process for approving waivers should be revisited. “It’s time that we review our processes and procedures,” Atkins told reporters after his speech. The same week Karen J. Mathis, President of the ABA, sent a letter to SEC Chairman Cox proposing revisions to the Commission’s policies regarding requesting privilege and other waivers.  Specifically, the proposal advocates dropping a footnote to criteria 11 in the SEC’s Seaboard Report.  Presently note 3 to that part of the Seaboard Report states that companies may chose not to assert the attorney client privilege and work product doctrine as part of their efforts to cooperate with the SEC.  The ABA proposal would  add an addendum to criteria 11 stating that “a company shall not be required to take any of the forgoing actions to the extent that it would result in a waiver of the attorney-client privilege or work product doctrine.”  Based on Commissioner Atkins’ remarks and the increased attention to the issue in light of the DOJ’s McNulty Memorandum and other groups such as the ABA, it will be interesting to see when, if, and how the SEC reacts to continued calls for policy revisions.