Chiding the SEC, the Champion of Plain English 

by Ken Bresler

© April 2001 Ken Bresler

If investors deserve plain English, then why do subpoenaed witnesses get gobbledygook?

I’m talking about the SEC’s 1998 regulation requiring financial companies to write their prospectuses in plain English. Yet when the U.S. Securities and Exchange Commission issues subpoenas to people to testify, the notices that it sends along with the subpoenas are in legalese.

Even the name of the notices are in gobbledygook: “Supplemental Information for Persons Requested to Supply Information Voluntarily or Directed to Supply Information Pursuant to a Commission Subpoena.” That violates at least four principles of clear writing by:

• using the passive voice (“directed to supply”) instead of the active voice;
• using “direct” as a verb;
• using “pursuant,” instead of “under”; and
• being wordy (the word “information” appears three times with two slightly different meanings).

The body of the notice is full of stuffy language, such as: “If you wish to purchase a copy of the transcript of your testimony, the reporter will provide you with a copy of the appropriate form.” That’s 25 words and 38 syllables. Here’s my rewrite: “If you want to buy a transcript of your testimony, ask the reporter for an order form.” Seventeen words, 23 syllables.

And the notice has overly long sentences. One sentence – which states that “if you, without just cause, fail or refuse to attend and testify”- goes on for a total of 90 words. The typical English sentence bogs down after roughly 20 words.

Is the legalese OK because subpoena recipients will have lawyers to translate? Nope. The notice anticipates that not all witnesses will have lawyers. It states: “If you are not accompanied by counsel…”

Oops. There’s that passive voice and pompous word choice again. What’s wrong with “If you don’t have a lawyer with you”?

The SEC should know better. To help implement the requirement that financial companies write prospectuses in plain English, the SEC published A Plain English Handbook. It might become a minor classic, a step below Strunk & White’s The Elements of Style.

Actually, the SEC knows that it uses gobbledygook. In A Plain English Handbook, it wrote, “Our rules and communications need as strong a dose of plain English as any disclosure document.”

If that acknowledgement was intended to deflect criticism while the SEC purged itself of legalese, that’s fine. If the SEC acknowledged a problem but hasn’t tried to correct it, that’s not fine. That’s like going through a 12-step program, but being satisfied with stopping at Step 2.

A spokesman for the SEC, John Heine, said about the notice, “That form and any other number are the object of thought and efforts, but we haven’t got around to it.” He added that it’s a matter of “what resources are available and where we put our priorities.”

I am chiding the SEC, but I’m trying to do it gently. Because I believe in both securities enforcement and plain English, I believe that recipients of SEC subpoenas deserve plain English. If one purpose of explaining perjury to witnesses – which the notice tries to do – is to deter witnesses from perjuring themselves, then they sure as heck should understand what perjury is.

So who’s going to rewrite the notice that accompanies SEC subpoenas? Well, I volunteer. I understand the constraints of “resources” and “priorities,” as the SEC spokesman put it.

Commissioners of the Securities and Exchange Commission: Call me.