A Caution on the Limits of Authority: Statement Regarding In the Matter of The Brink’s Company

I support the Commission’s finding that, for the reasons explained in the Order Instituting Cease and Desist Proceedings, The Brink’s Company (“Brinks”) violated Exchange Act Rule 21F-17(a)’s prohibition against taking “any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement . . . with respect to such communications.” I nonetheless again write to explain my view regarding the scope of the Commission’s authority under that rule.[1] When it adopted Rule 21F-17 in 2011, the Commission explained that “Section 21F of the Exchange Act evinces a Congressional purpose to facilitate the disclosure of information to the Commission relating to possible securities law violations and to preserve the confidentiality of those who do so.”[2] Adopting Rule 21F-17(a), as the Commission further explained, was “necessary and appropriate because . . . efforts to impede an individual’s direct communications with the Commission staff about a possible securities law violation would conflict with the statutory purpose of encouraging individuals to report to the Commission.”[3] The Commission’s authority to adopt and enforce Rule 21F-17 necessarily is limited to the scope and purpose of Exchange Act Section 21F, which is to ensure the free flow of information to the Commission.

For this reason, I do not support the undertaking in the order that goes beyond that limited scope. Specifically, Brinks has undertaken to include a “provision in all employment-related agreements involving U.S.-based Brinks employees” that states:

Protected Rights. Employee understands that nothing contained in this Agreement limits Employee’s ability to file a charge or complaint with the Securities and Exchange Commission, or any other federal, state, or local governmental regulatory or law enforcement agency (“Government Agencies”). Employee further understands that nothing in this Agreement limits Employee’s ability to communicate with any Government Agencies or otherwise participate in or fully cooperate with any investigation or proceeding that may be conducted by any Government Agency [sic], including providing documents or other information, without notice to or approval from the Company. Employee can provide confidential information to Government Agencies without risk of being held liable by Brinks for liquidated damages or other financial penalties. This Agreement does not limit Employee’s right to receive an award for information provided to any Government Agencies.[4]

The Commission plainly lacks statutory authority to impose such a broad requirement, and Rule 21F-17 does not purport to assert such authority. I recognize that the Order states that Brinks’ agreement to this undertaking was merely a consideration when determining whether to accept the company’s offer of settlement. The Commission, however, must be cautious about using the settlement process to obtain voluntary compliance with requirements that it lacks statutory authority to impose.

That a respondent has agreed to particularly broad language as part of a settlement should not be misconstrued as an indication that other companies are under any obligation to use the same or similar language to avoid running afoul of Rule 21F-17.