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SEC Reaches Settlement to Resolve Overcharge Claims
On May 10, the SEC announced a settlement of more than $97 million with a dually-registered investment adviser and broker-dealer (the Firm) over three sets of alleged violations of the Investment Advisers Act of 1940, the Securities Act of 1933, and the Securities Exchange Act of 1934. The first violation claims that two of the Firm’s advisory programs charged fees to more than 2,000 clients for due diligence and monitoring services of certain third-party investment managers and investment strategies that were, in fact, not being performed. Second, the Firm recommended “more expensive mutual fund share classes when less expensive share classes were available,” thereby collecting excess sales charges or fees of approximately $110,000 from 63 brokerage clients. Finally, 22,138 accounts paid excess fees due to Firm miscalculations and billing errors. In total, from September 2010 through December 2015, the Firm overcharged certain clients nearly $50 million in fees. Neither admitting nor denying the SEC’s findings, the Firm agreed to create a Fair Fund to refund advisory fees to harmed clients. Specifically, the Fair Fund will consist of almost $50 million in disgorgement, close to $14 million in interest, and a $30 million civil money penalty. Under the terms of the settlement, the Firm is also required to pay an additional $3.5 million in remediation to harmed advisory clients who had underperforming (and unmonitored) investments despite paying for third-party managers and investment strategies.
Members of the House Financial Services Committee Weigh in on Rollout of the DOL Fiduciary Rule
On March 17, GOP members of the House Financial Services Committee sent a letter to Acting Labor Secretary Ed Hugler expressing their support for the Department of Labor’s (DOL’s) proposal to delay the implementation of its Fiduciary Rule from April 10 until June 9. The letter asserts, among other things, that a delay is “necessary to review the rule’s scope and assess potential harm to investors, disruptions within the retirement services industry, and increases in litigation, as required by the Presidential Memorandum signed by President Trump on February 3, 2017.” The GOP Members also note that they “have long been concerned with the DOL Fiduciary Rule's impact on retail investors and the U.S. capital markets,” and, have therefore “advocated that the expert regulator—the Securities and Exchange Commission (SEC)—should craft an applicable rule.”
Later that day, House Democrats sent their own letter to the Acting Labor Secretary expressing opposition to the DOL’s proposed 60-day delay of its Fiduciary Rule. Specifically, the Democratic members contend that “the rule is reasonable and workable for advisers,” because, among other reasons, “the DOL provided appropriate relief that mitigates industry concerns and compliance costs.”
SEC Appoints New Deputy Associate Director in Division of Investment Management's Rulemaking Office
On September 7, the SEC named Sarah G. ten Siethoff Deputy Associate Director in the Division of Investment Management’s Rulemaking Office. Since joining the SEC in 2008, Ms. ten Siethoff has served in various roles in the Division’s Rulemaking Office, including Assistant Director, Senior Special Counsel, and Senior Counsel. In her new role, Ms. ten Siethoff will, among other things, recommend rulemaking and other policy initiatives under the Investment Company and the Investment Advisers Acts of 1940. Prior to joining the SEC in 2008, Ms. ten Siethoff worked as an associate in private practice.
FINRA Releases 2016 Regulatory and Examination Priorities Letter
On January 5, FINRA released a letter regarding its regulatory and examination priorities for 2016. The letter focuses on the following three broad issues within the securities industry: (i) culture, conflicts of interest and ethics; (ii) supervision, risk management and controls; and (iii) liquidity. Regarding FINRA’s assessment of firm culture, the letter notes that FINRA “will focus on the frameworks that firms use to develop, communicate, and evaluate conformance to their culture,” assessing five specific indicators of a firm’s culture, including (among others) whether policy or control breaches are tolerated. In connection with supervision and risk management, FINRA will focus its examination efforts on the following four areas that continue to affect firms’ business conduct and market integrity: (i) management of conflicts of interest; (ii) technology; (iii) outsourcing; and (iv) anti-money laundering. Finally, in connection with liquidity, FINRA plans to review firms’ contingency funding plans as they relate to their business models, noting that the framework for FINRA’s reviews will be driven by the effective practices contained in Regulatory Notice 15-33. Additional areas of regulatory and examination focus for FINRA in 2016 will include but are not limited to: (i) protecting seniors and vulnerable investors from fraud, sales practice abuse, and financial exploitation; (ii) private placements and Regulation A+ public offerings; (iii) financial and operational controls concerning exchange-traded funds and fixed-income prime brokerage; and (iv) market integrity.
SEC Announces Bryan Bennett as Head of Los Angeles Exam Program
On November 5, the SEC announced Bryan Bennett as head of its Los Angeles examination program. Bennett will oversee examiners, accountants, and attorneys based in Southern California, Nevada, Arizona, Hawaii, and Guam. Bennett joined the SEC in 2008 and was later named manager, leading various teams in the investment adviser and investment company examination program. In January 2015, the SEC named Bennett the assistant director of the Los Angeles examination program. Prior to joining the SEC, Bennett was a litigator in private practice.
SEC Appoints New Head of Examination Program in Atlanta Regional Office
On September 29, the SEC named William Royer as the Atlanta Regional Office’s Associate Director of the examination program. Since June of this year, Royer has served as the examination program’s Acting Associate Director. In his role, Royer will supervise staff responsible for the examination of broker-dealers, investment advisers, investment companies, transfer agents, along with other SEC registrants. Prior to joining the SEC in 2013 as an Assistant Director within the Office of Compliance and Inspections and Examinations’ Office of the Chief Counsel, Royer worked as a securities attorney in private practice and served as General Counsel for two international investment management firms.
FinCEN Issues NPRM Establishing BSA/AML Requirements for Investment Advisers
On August 25, FinCEN issued a Notice of Proposed Rulemaking (NPRM) seeking to adopt minimum Bank Secrecy Act (BSA) and anti-money laundering (AML) standards that would be applicable to investment advisers. Under the proposal, investment advisers would be required to implement AML programs and report suspicious activity, among other safeguards. The NPRM states that the proposal would cover investment advisers registered or required to register with the SEC. The proposal would also add such investment advisers to the definition of “financial institution.” This would result in investment advisers being required to file currency transaction reports and to comply with recordkeeping and other requirements applicable to financial institutions. With respect to supervisory authority, FinCEN stated that it would delegate its authority to the SEC for purposes of examining investment advisers for compliance with the proposed requirements.
SEC Promotes Agency Official to Lead Regional Office Investment Adviser/Investment Company Exam Program
On October 28, the SEC announced Steven Levine as the Associate Director for the Investment Adviser/Investment Company examination program in its Chicago office. Levine, who joined the agency in 2010, had served as one of its two acting Associate Directors since March 2013. Levine will oversee the IA/IC exam program spanning nine Midwestern states, including a staff of approximately 65 examiner, accountants, and attorneys.
Eleventh Circuit Holds Custodian Bank Has No Duty To Police Securities Transactions By Customer's Investment Advisor
On April 14, the U.S. Court of Appeals for the Eleventh Circuit held that a custodian bank had no duty under New York or Florida law to identify or alert a customer to fraudulent transactions directed by the customer’s investment advisor. Lamm v. State Street Bank & Trust, No. 12-15061, 2014 WL 1410172 (11th Cir. Apr. 14, 2014). A bank customer sued his bank for breach of contract, breach of fiduciary duty, negligence, and several other common law claims, alleging the bank had a duty to notify him that the securities held by the bank were worthless. The court determined that, although the bank held the assets and could execute certain administrative transactions without prior authorization, transactions beyond these administrative roles were carried out at the direction of the customer’s investment advisor. Accordingly the bank had no responsibility for supervising investments and assumed no liability for losses except those it caused through negligence or willful misconduct. The court held that the customer’s breach of contract and negligence claims failed because (i) the custody agreement provided the bank no decisionmaking role in investments; (ii) the bank had contractual authority to rely on the investment advisor’s instructions; and (iii) the customer failed to demonstrate that the bank had a duty to ensure the investment instruments were valid or to verify their market value. The court further held with regard to the customer’s other claims that (i) the fact that certain securities had facial defects does not raise a plausible inference that the bank knew of the investment advisor’s wrongdoing, and cannot support a claim for aiding and abetting fraud; (ii) the custody terms established an arm’s length agreement with limited obligations and did not establish special circumstances on which a fiduciary duty claim can be made; and (iii) the customer’s negligent misrepresentation claim failed because the customer did not establish that the bank intended to induce him to rely on its alleged representations as to the validity of his securities.
SEC Action Targets Unregistered Cross-Border Brokerage, Investment Advisory Services
On February 21, the SEC released an administrative order against a foreign financial institution that provided cross-border securities services to thousands of U.S. clients. The SEC asserted that the institution’s employees traveled to the U.S. to solicit clients, provide investment advice, and induce securities transactions despite not being registered to provide brokerage or advisory services. The order states that over a period of at least seven years, the institution served as many as 8,500 U.S. client accounts that contained an average total of $5.6 billion in securities assets. The institution admitted it was aware of federal broker-dealer and investment adviser registration requirements related to the provision of certain cross-border broker-dealer and investment adviser services to U.S. clients. After another foreign institution became subject to a federal investigation for similar activities, the institution began to exit the business, though the SEC order states it took years to do so. The order requires the company to disgorge more than $82 million, pay more than $64 million in prejudgment interest, and pay a $50 million civil penalty. In addition, the institution must retain an independent consultant to, among other things, confirm the institution has completed the termination of the business, and evaluate policies and procedures that could detect and prevent similar activity in the future.