Statement by Commissioners Gallagher and Paredes Concerning Commission Adoption of a Final Rule Regarding Assets Being Held by Broker-Dealers

Earlier today, the Commission adopted a final rule amending certain broker-dealer annual reporting, audit, and notification requirements (Release No. 34-70073). We respectfully dissented from the adoption of the rule amendments because of our concerns regarding the requirement that broker-dealers provide access to accountant and audit documentation. We are concerned that the final rule does not explicitly limit the scope of the Commission’s audit documentation requests and the uses to which the Commission could put any information it receives from an auditor. Accordingly, the final rule could chill important discussions between a broker-dealer and its auditor. Because of the gatekeeping role that auditors perform in the securities markets, we cannot support a rule that could deprive auditors of potentially important information regarding the broker-dealers they audit. In addition, the rule could compromise any privileges that cover communications between a broker-dealer and its auditor or between a broker-dealer and its attorney, depending on the documents that are produced. In our view, the Commission’s decision to adopt a final rule that places such privileges at risk sets a problematic precedent.