At the end of each calendar year, the Office of Compliance Inspections and Examinations (“OCIE”) staff of the United States Securities and Exchange Commission (“SEC”) publish a list of topics for the next year’s examination priorities. Not so surprisingly, the first item for the 2019 exam priorities listed is “fees and expenses”. This topic was also the highlight of an OCIE Risk Alert in April 2018 as one of the most frequent compliance issues identified in Examinations of Investment Advisers.
Today, investment advisers and broker-dealers face many challenges when providing advice to and working for senior investors. Many seniors are living with or approaching diminished capacity due to Alzheimer’s, dementia, and/or other health-related issues. Unfortunately, these health issues create vulnerability for financial exploitation from caregivers, family members, neighbors, friends, medical professionals, lawyers, clergy, bank employees, or financial service professionals.
Under the Investment Advisors Act of 1940 (the “Advisers Act”), Investment Advisers assume a fiduciary responsibility requiring them to seek and obtain the “best execution” for client transactions when trading in client accounts. The United States Securities and Exchange Commission (“SEC”) has outlined this responsibility as “an adviser must execute securities transactions for clients in such a manner that the client’s total costs or proceeds in each transaction are the most favorable under the circumstances.” Also, the SEC has indicated Investment Advisers need to periodically “evaluate the execution quality of the broker-dealer executing their clients’ transactions.”
With the transition into the electronic storage of client data, Investment Advisers and Broker-Dealers are faced with more complex compliance issues regarding safeguarding client information and records. The United States Securities and Exchange Commission (“SEC”) OCIE Risk Alert from May 2019 addresses some of the issues and concerns identified with cloud-based storage and possible issues to consider regarding the protection of electronic client and business data.
Investment Adviser Principal and Agency Cross Trading practices was the topic of a recent OCIE Risk Alert. The Investment Adviser’s Act Principal Transactions Section 206(3) indicates “Investment Adviser’s acting as a principal for his own account, knowingly to sell any security to or purchase any security from a client, or acting as broker for a person other than such client, without disclosing to such client in writing before the completion of such transaction the capacity in which he is acting and obtaining consent of the client to such transaction” are prohibited unless the appropriate disclosures and consent procedures are addressed and completed according to the compliance requirements.
Beginning in 2017, the United States Security and Exchange Commission (“SEC”) initiated a series of examinations aimed at compliance policies and procedures regarding individuals within these firms that had a prior disciplinary history.
In June, the U.S. Securities and Exchange Commission (SEC) passed “Regulation Best Interest: The Broker Dealer Standard of Conduct” and “Form CRS Relationship Summary; Amendments to Form ADV”. This legislation, Regulation Best Interest and CRS Relationship Summary, is the cumulation of many attempts to mesh the “fiduciary standard” for Investment Advisers and Broker-Dealer Representatives. The objective of this legislation and its requirements are to educate investors through disclosures regarding any conflicts, fees, costs, and whether the investment opportunities being offered are suitable for the investor. This legislation will impose new documentation requirements for both Investment Advisors and Broker-Dealer Representatives.
On May 23, 2019, the SEC, NASAA, and FINRA published a year-end review of the Senior Safe Act which became federal law one year ago. In doing so, they also issued a Fact Sheet to help raise awareness with financial institutions and describe how the Act’s immunity provisions work.
In May of 2017, FINRA released a Retrospective Rule Review 17-20 requesting comments on the effectiveness and efficiency of its Rule 3270, Outside Business Activities (“OBAs”) of Registered Persons, and Rule 3280, Private Securities Transactions (“PSTs”) of an Associated Person. Then, in February of 2018, FINRA issued Regulatory Notice 18-08 seeking additional comments on a proposed new rule, FINRA 3290, to consolidate current FINRA Rule 3270 and current FINRA Rule 3280. The proposed rule change is a result of FINRA’s retrospective rule review the year before. FINRA again sought comments on streamlining and bringing the rule up to date.
If you are a private fund adviser (i.e. hedge fund or pooled investment vehicle), do you know if you are deemed to have custody? If so, is your Form ADV Part I completed correctly? Custody for private fund advisers is regarded by the SEC as an extremely important topic and should be reviewed frequently by your firm.
Since there is a significant increase in compliance responsibilities for firms that have custody of client funds and/or securities, it’s critical that you consider whether or not your firm will be deemed to have custody.