The cases cited by Mr. Grewal illustrate just how open-ended, and near meaningless, the term "ESG" is. One of the ESG cases cited by Mr. Grewal concerns an issuer failing to disclose the poor condition of its physical property; the second concerns an issuer failing to disclose misconduct by its CEO; and the third enforcement action concerns an investment adviser providing untrue information about its investment process.

Perhaps Mr. Grewal's speech was intended to provide implicit…

This is an example of how regulation should not work; i.e., it is regulation by enforcement.

To start with the bad as to the defendant: Taking the facts of the settlement as true, the defendant did some things poorly, particularly from an operational standpoint; e.g., taking on customers when it had system capacity issues and having a significant cybersecurity breach. Likewise, it is not possible to see how the firm could justify rejecting a customer for options trading and…

The disgorgement amount was payable by the adviser, not by the underlying accounts.

It is hard to imagine a disclosure of less value to a swap counterparty than the mid-market mark of a widely published rate where the counterparty agrees that it prefers the speed and certainty of immediate execution to a delay for receiving price information that the counterparty does not need.  

That said, the debate over what decisions should be made by the Commissioners, not by staff, continues. On the one hand, there is a logic that it is the Commissioners who have been…