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Goldstone: Market to Face More Enforcement and Disclosure Issues This Year

BRADENTON, Fla. — Municipal market participants face the prospect of more enforcement action this year while issuers will be pressured to step up disclosure efforts, industry experts said Tuesday.

“We want to promote fairness and efficiency in the market through a combination of regulations, as well as the EMMA [electronic filing] platform,” MSRB chairman Jay Goldstone said on the final day of the National Municipal Bond Summit in Fort Lauderdale Beach, Fla.

Goldstone said that the “2.0” version of EMMA will be rolled out soon, increasing the amount of data available, and providing greater access to real-time trading.

The MSRB will also continue to encourage issuers to provide more disclosure on EMMA, including more frequent posting of preliminary offering statements.

There are benefits to issuers posting their POS as they go to the market, and while they include continuing disclosure agreements “it’s pretty amazing how many issuers don’t follow through on that,” said Goldstone, who noted that he is stepping down as San Diego’s chief operating officer on Friday and will focus all of his attention on the MSRB.

Though Goldstone said he understands the problems issuers face complying with disclosure and compliance agreements, he said the MSRB will continue to talk to them about what the Securities and Exchange Commission requires, and what can lead to securities fraud “as San Diego found out.”

The SEC sanctioned the city for securities fraud in 2006 for failing to accurately disclose pension information, and subsequently charged five city officials alleging that they knew, but failed to disclose, that San Diego intentionally underfunded pension obligations. The officials agreed to pay fines in 2010.

In other initiatives this year, the MSRB also will complete its work clarifying G-17, which requires brokers and dealers to conduct their municipal securities activities fairly, as well as rules defining financial advisors and activities, Goldstone said.

G-17 is one of the MSRB’s shorter rules, but it has more than 30 pages of interpretive guidance, he said, adding that the board’s intent is to make the guidance clearer, not rewrite the rule.

New rules are still required in the municipal advisory arena, Goldstone said, adding that he expects those to be released later this spring, after the SEC issues its final definition of a municipal advisor.

When asked if the new MA definition would contain a controversial provision applying it to appointed members of state and local government boards, Goldstone said, “Every indication is that is one of the major changes that will come out of the next draft.”

In a separate panel discussion on market regulation, Morgan, Lewis & Bockius LLP attorney E. Andrew Southerling, said this will be another “aggressive and record year” for the SEC Enforcement Program.

In fiscal 2012, he said the SEC filed 734 enforcement actions, and obtained orders requiring the payment of $3.1 billion in penalties and disgorgement, an increase of about 11% over the prior year.

Municipal securities are a top priority of the SEC, Southerling said, adding that the agency instituted 17 civil enforcement actions in 2012 against 23 defendants and respondents, about a 50% increase over 2011.

The SEC’s Municipal Securities and Public Pension Unit is expected to remain active with some 30 attorneys and municipal market specialists policing misconduct in the muni market, and public pension sector, he said.

The unit’s priorities include pension accounting and disclosure violations, pay to play issues, corruption, valuation and pricing fraud, offering and disclosure fraud, and failure to disclose threats to the tax exempt status of the bonds to investors.

“We can expect to see enforcement particularly with disclosure on tax issues,” Southerling said.

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