SEC Inspector General Warns of More Lawsuits After Chevron

In its annual report, the SEC auditor warned of litigation related to current and future rules; separately, the ASA called on SEC Chair Gensler to step down.

The Securities and Exchange Commission is likely to face more pressure both in and out of the courts.

This week, the SEC’s Office of the Inspector General, an independent auditing and investigations body, released its annual report, which stated that the regulator should expect increased litigation regarding rulemaking, in part due to the Supreme Court overturning a long-held precedent by which federal courts defer to administrative agency rules.

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Meanwhile, on the morning after Donald Trump’s presidential victory—which many expect will shift the current SEC regulatory regime—a financial trade group has called on SEC Chairman Gary Gensler to resign.

Chevron’s Tail

In terms of the inspector general’s warning, released on Monday, the auditor warned that the “SEC should anticipate increased litigation by parties challenging current and future rulemakings and ensure that new regulations will withstand judicial scrutiny.”

The inspector general cited the Supreme Court’s decision in the Loper Bright Enterprises v. Raimondo case, which overturned about 40 years of precedent known as the Chevron doctrine, which had required federal courts to defer to administrative agencies. Now, courts will hold more power in how to rule on challenges to agency rulemaking, include rules from the SEC and the Department of Labor.

“The current regulatory environment may lead to increased forum shopping by petitioners and extended periods of uncertainty about the permissible scope of agency action,” the inspector general wrote.

In response to the post-Chevron environment, the auditor called on the SEC to “continue to develop” a rigorous administrative process, including getting public feedback on rulemaking and giving “reasoned responses” to public comment.

Howard Fischer, a partner in Moses & Singer LLP, believes one byproduct of Loper Bright may slow the pace of SEC rulemaking and reduce the volume of litigated enforcement actions by the regulator.

“The Supreme Court’s recent rulings on administrative agency powers and restraints seem to have opened the floodgates to litigation against the SEC,” Fischer wrote via email. “We are likely to see a plethora of rules challenged—even ones that have been implemented for a significant period of time. In addition, rulings limiting the SEC’s use of administrative proceedings are likely to force more cases to federal court—which will involve lengthier, and more expensive, proceedings.”

Earlier this year, the SEC’s top enforcer, Gurbir Grewal, stepped down after implementing what many experts saw as a rigorous regulatory period. At the time, experts expected his replacement to continue a similar level of enforcement—with the election results now potentially shifting that calculus.

Gensler’s Future

SEC Chair Gensler has received industry pushback on various regulatory areas during his tenure under the administration of President Joe Biden.

For example, during a recent conversation with Gensler at the Securities Industry and Financial Markets Association’s annual conference, SIFMA CEO and President Kenneth Bentsen noted, for example, the “growing frustration” among advisers at the heavy enforcement of so-called off-channel communications by advisers. Gensler defended the regulator’s push to enforce rules on adviser communications, noting that many firms were ignoring them, potentially to hide bad practices.

On Wednesday morning, after Trump’s election win, the American Securities Association called for Gensler to step down from his chair post.

“Last night the people voted for this country to take a new direction, and Chairman Gensler should respect that vote by stepping down from his position immediately,” ASA President and CEO Chris Iacovella wrote in a statement. “This is the only way for America’s working families, retirement savers, and small businesses to rebuild their trust and confidence in the institution of the SEC.”

The ASA has fought back against numerous SEC policies in recent years, along with criticizing the speed and efficiency of enforcement.

The SEC did not immediately respond to a request for comment.

In its annual report, the inspector general also noted improved staffing and attrition rates in 2024, as compared with the year prior. Those improvements, however, have come with increased costs, as personnel expenses increased to 70% of the SEC’s budget in 2024, up from 64% in 2023. The auditor noted that the agency may need to implement “austerity measures,” including hiring freezes, depending on its fiscal 2025 budget.

How Plan Advisers Are Reacting to Trump Election Win

Retirement plan advisers weigh in on post-election market impacts, retirement strategies and the overall economic outlook.

With the results of Tuesday’s U.S. presidential election still settling in, retirement plan advisers are focused on guiding plan sponsor clients and their participants through its effects on markets, the economy and policy initiatives to come. Many agree that while political shifts can generate strong emotions, a steady, long-term approach remains the best path forward for retirement savers and investors alike.

Phil Sherman, a senior retirement plan consultant at Portland, Oregon-based Deschutes Investment Consulting LLC, emphasized the strong emotional reactions that elections tend to evoke among retirement plan participants.

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“The biggest thing that still is on my mind is what an emotional response the election drives from plan participants,” Sherman says. “Just like our national polls showed, we have a mixed bag of participants who are somewhere between thrilled and distraught from last night’s results.”

He explains that this divide underlines the responsibility advisers have to help clients manage emotional responses. Advisers should continue offering educational sessions in 2025 and beyond, aimed at balancing emotions and focusing on sound investment strategies. Sherman says he is reminding investors that history has shown political parties do not usually have a lasting impact on market returns.

Chris DeAndrea, director of retirement plan consulting at Webber Advisors, part of the Leavitt Group, echoes these sentiments. He says the bottom line is that the stock market tends to go up under most presidents, and its trajectory is largely determined by factors such as corporate earnings and interest rates.

“Retirement plan participants are most likely to reach their financial goals by adhering to a long-term investment strategy, and election outcomes should have minimal impact on that approach,” he says.

Marilyn Suey, founder and CEO of the Diamond Group Wealth Advisors, says her firm uses a bottom-up approach to portfolio construction, and will review investments as necessary but with a long-term growth and stability focus.

“Our retirement plan lineups are built to withstand economic ups and downs,” she says, underscoring that the current portfolios are designed for resilience.

Reviewing Investment Menus

DeAndrea says the election itself is unlikely to cause any significant changes to retirement plan investment menus, as most advisers have already decided how they want to handle environmental, social and governance factors (the consideration of which is likely to change under the new administration), as well as other plan design areas, such as including guaranteed in-plan income solutions.

“I also don’t believe this will change the trajectory toward including guaranteed in-plan income solutions, regardless of any new legislation,” DeAndrea says. “I feel that as more plans are educated on these solutions, there will be more plans utilizing these options.”

Looking at investment options, Sherman points out that fixed-income assets could be challenging if interest rates remain elevated. He recommended that advisers and plan sponsors examine their portfolios closely, especially cash-equivalent and fixed-income positions.

“If rates stay elevated, advisers should take a hard look at these positions and assess their resilience to potential rate hikes down the road,” Sherman says.

Policies and Market Trends

With results of a Republican win for both the presidency and control of the Senate, advisers consider how a unified government might affect policies and future market trends. Sherman suggests that certain policies from the 2016 Trump administration could make a comeback, and it would be logical for advisers and plan sponsors to expect such policies during that time.

“I wouldn’t be surprised to see some of the DOL rulings challenged—namely ESG and [socially responsible] investment rules and the fiduciary rule,” he says. “None of that should come as a surprise, as the Trump administration has been very clear about their views on those positions.”

Sherman added a “dark horse prediction:” The Trump administration has been very favorable towards cryptocurrency, he says, and he would not be surprised if it pushes the DOL to look more kindly at that asset class in retirement plans. 

As for markets, historical data suggest that markets perform better when the government is split between parties, according to Sean Kelly, a vice president and financial adviser at Heffernan Financial Services. The composition most favorable to the defined contribution market is when the president comes from a different party than the one largely in control of Congress.

“With a Republican president, and potentially a Republican Congress—both the House and the Senate— historically this [composition] gives us the lowest average annual returns in the S&P 500 when compared to the other potential compositions,” he says. “The highest average annual returns in the S&P 500, looking back to 1950, is when the president represents a different political party than Congress, or at least a split Congress. Maybe that’s because there’s less regulation or legislation passed with that scenario and therefore, the markets just have more room and freedom to run.”

The U.S. economy is still quite strong, and Suey says the expectation is that earnings will continue to thrive, though perhaps not without some challenges.

“If we have a split Congress, there will be some gridlock in new laws, changes in current regimes like taxes, etc.,” she notes. “We are concerned with extreme tariffs on foreign goods that may drive more inflation.”

Tax Policies and Inflation Trends

Taxes and inflation are also central considerations in advisers’ post-election outlooks. Sherman expects that Trump’s Tax Cut and Jobs Act, set to expire at the end of 2025, may be extended under a Republican-led government.

“At the very least, we may see an extension of these cuts, if not more,” he says. With inflation, Sherman notes that the trend likely points toward sustained or higher interest rates, which could add pressure on investments reliant on borrowing costs.

DeAndrea observes that equity markets globally have responded positively to the election outcome, expecting lower corporate tax rates, lighter regulation and lower business costs.

“The markets are pleased with these prospects,” he says, while also cautioning that inflation remains a question mark. “We’ll need to wait and see how inflation unfolds, especially with the possibility of new tariffs.”

Tariffs and Trade

Tariffs are another point of focus, with Sherman predicting that they may reappear as a central theme under Trump, who has historically advocated for them.

“Tariffs have historically been inflationary, and it stands to reason they will attempt to pursue this avenue,” Sherman explains, noting that any new tariffs could drive costs upward. Despite expectations of a Federal Reserve rate cut soon, Sherman highlights recent increases in the 10-year Treasury yield as an indication of the market’s inflation expectations.

DeAndrea acknowledges that while tariffs may benefit American businesses in the long term, they could also lead to short-term inflationary pressures. “If new tariffs are imposed, they may help domestic businesses, but we’ll need to watch for any inflation spikes in the near term,” he says, adding that past tariffs did not significantly raise inflation during the previous Trump administration.

The recent election may have stirred the waters, but advisers are encouraging retirement savers to remain focused on their long-term goals and resist reacting to short-term market movements. With steady guidance and a clear view of economic fundamentals, these advisers believe that retirement plan participants can continue to build financial security, regardless of the political landscape.

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