Articles Posted in Industry News

The Department of Labor (DOL) recently proposed a rule revising the definition of “employer” under Section 3(5) of the Employee Retirement Income Security Act of 1974 (“ERISA”) for purposes of sponsoring a multiple-employer plan (MEP). The proposed rule, which is in response to President Trump’s August 31, 2018 Executive Order directing the DOL to examine policies expanding access to MEPs, would make it easier for small businesses who meet certain requirements to pool their resources to form a MEP, thereby reducing administrative costs. Continue reading

In October 2018, the South Carolina Court of Appeals vacated a $540,000 civil penalty that the South Carolina Securities Commissioner had imposed against John M. McIntyre and his company, Silver Oak Land Management, LLC.  The Commissioner imposed the penalty upon a determination that McIntyre and Silver Oak Land Management had committed securities fraud in the offer, sale, and management of various limited liability company interests.  The Court of Appeals, however, found that in the course of a hearing the Commissioner conducted, the Commissioner did not grant McIntyre and Silver Oak Land Management adequate procedural due process. Continue reading

In our previous post regarding state-registered investment advisers, we examined the landscape and discussed common deficiencies found in state adviser examinations.  In this post, we will discuss enforcement actions typically aimed at state-registered investment advisers, as well as current enforcement trends such as fraud pertaining to emerging markets and protection of senior investors.

Earlier in 2018, the North American Securities Administrators Association (NASAA)  published its 2018 Enforcement Report.  This report contains information and statistics regarding NASAA members’ enforcement actions in 2017 and highlights current trends in enforcement actions aimed at state-registered investment advisers.

According to the Report, NASAA members received 7,998 complaints that resulted in 4,790 investigations.  Once the investigations were completed, NASAA members initiated 2,105 enforcement actions, over half of which were administrative actions.  Criminal actions made up the second largest number of enforcement actions, followed by civil and other types of enforcement actions. Continue reading

This is the first of a two-part series dealing with the state-registered investment adviser industry.  In this first post we examine the landscape and discuss common deficiencies identified in state adviser examinations.

Relevant statistics can be found in the North American Securities Administrators Association’s 2018 Investment Adviser Section Annual Report.  The Report offers an overview of the state-registered investment adviser industry in the US and highlights the work that state regulators and NASAA’s Investment Adviser Project Groups completed in 2017. The report should be viewed as a useful tool for state-registered advisers to anticipate and correct deficiencies that are commonly cited by state regulators. Continue reading

In October 2018, the United States District Court for the District of South Carolina granted class action certification to Robert Berry, a former financial adviser for Wells Fargo.  Berry’s suit against Wells Fargo alleges that Wells Fargo did not pay the class members, other former and current Wells Fargo employees money that they were owed as deferred compensation.

According to Berry’s First Amended Class-Action Complaint, he and a number of other Wells Fargo employees were part of two deferred-compensation plans that qualified as “pension benefit plans” under the Employee Retirement Income Security Act (“ERISA”).  The complaint claims that the plans failed to follow ERISA’s funding, vesting, and non-forfeitability requirements. Continue reading

On October 30, 2018 the Securities and Exchange Commission announced amendments to rules and forms designed to improve disclosures made to clients regarding variable annuities and variable life insurance contracts.  According to the SEC, the purpose of the proposed amendments is to assist investors in comprehending the characteristics of variable annuities and variable life insurance contracts and the risks associated with those investment products.  The proposed amendments would allow financial institutions who offer variable annuities and variable life insurance contracts to give a summary prospectus to investors, which would satisfy the financial institutions’ disclosure obligations.  The SEC has invited the public to comment on both the proposed amendments and the hypothetical summary prospectus samples created and included in the proposed rule.  The comment period will run through February 15, 2019. Continue reading

On October 31, 2018 the Financial Industry Regulatory Authority published Regulatory Notice 18-37, which announces the commencement of the 2019 Renewal Program for registered investment advisers and broker-dealers.  The 2019 Renewal Program is set to begin on November 12, 2018.  On that day, FINRA will release Preliminary Statements to all registered firms via E-Bill.  Firms are required to remit full payment of their Preliminary Statements by December 17, 2018.

The Preliminary Statements contain various fees for renewal of state registrations and notice filings.  For individuals who are renewing their broker-dealer registrations, FINRA will assess a fee of $45.  For investment adviser firms and their representatives who are renewing their registrations, any IARD system fees will be featured on their preliminary statements.  For FINRA-registered firms that have one or more branch offices, FINRA will assess a renewal fee of $20 per branch.  FINRA will, however, waive one branch renewal fee for each FINRA-registered firm.

Firms may pay their Preliminary Statement fees via E-Bill, a wire transfer, or a check.  FINRA’s preferred method of payment is E-Bill.  If a firm does not pay the Preliminary Statement fees by December 17, it will be charged a late renewal fee.  The late fee will amount to either 10 percent of a firm’s final renewal assessment or $100, whichever is greater, but the late fee can be no more than $5,000.  FINRA also warns firms that failure to pay the Preliminary Statement fees by the December 17 deadline could result in the firms becoming unable to do business in the areas where they are registered.

The Securities and Exchange Commission recently issued three Orders Instituting Administrative and Cease-and-Desist Proceedings relating to the misuse of quantitative models in managing customers’ accounts.  Four entities affiliated with Transamerica and two individuals associated with one of those entities were charged with violating the Investment Advisers Act of 1940 (“Advisers Act”) and Advisers Act Rules.  The Orders allege that AEGON USA Investment Management LLC, Transamerica Asset Management, Inc., Transamerica Capital, Inc., and Transamerica Financial Advisors, Inc., marketed various products and investment strategies that used a “proprietary quant model” while failing to verify whether the models functioned as intended and without disclosing known risks connected with the models.  The Transamerica entities and the individuals, Bradley Beman and Kevin Giles, submitted offers of settlement to resolve the charges. Continue reading

Earlier this month, the Securities and Exchange Commission announced that it had reached a settlement with Ross Shapiro, a former managing director of Nomura Securities International, Inc. (“Nomura”).  The SEC filed a complaint against Shapiro and two other defendants, Michael A. Gramins and Tyler G. Peters, in September of 2015.  The complaint alleged that between January 2010 and November 2013, Shapiro, Gramins, and Peters made misrepresentations to customers about the prices of residential mortgage-backed securities (“RMBS”) and manufactured housing asset-backed securities (“MHABS”), thereby violating the Securities Act of 1933 and the Securities Exchange Act of 1934.

An RMBS is a security whose underlying assets comprise residential loans.  Customers who invest in an RMBS typically obtain payments derived from the interest and principal payments on these loans.  Shapiro, Gramins, and Peters provided market information and sold RMBS and MHABS on behalf of Nomura, a FINRA-registered broker-dealer.  The customers in question were funds that invested in RMBS.

The SEC’s complaint alleged that Shapiro, Gramins, and Peters made various misrepresentations to customers regarding the prices at which Nomura bought and sold RMBS and MHABS and that they misrepresented the amount of compensation that Nomura would receive for arranging any trades.  For example, Shapiro, Gramins, and Peters allegedly deceived customers on numerous occasions regarding how much Nomura paid for RMBS and MHABS.  Shapiro, Gramins, and Peters also gave clients the impression that Nomura had paid a higher price for RMBS and MHABS than it actually had.  These misrepresentations were usually made via electronic communications such as instant messaging, emails, and online chats.

The Securities and Exchange Commission recently issued an Order Instituting Administrative and Cease-and-Desist Proceedings against Massachusetts Financial Services Company (“MFS”), an SEC-registered investment adviser.  According to the SEC’s Order, MFS advertised hypothetical returns pertaining to its blended research stock ratings without informing clients that a number of the hypothetical portfolios’ superior returns were based on back-tested models.  Without admitting or denying the allegations in the SEC’s Order, MFS submitted an offer of settlement to resolve the matter.

According to the SEC’s Order, MFS has employed a quantitative-based research department since 2000.  In 2000, the department developed what MFS calls “blended research” strategies, which involve “combining fundamental and quantitative ratings to arrive at a blended stock score, and by using a portfolio optimization process that considers the blended scores along with risk and other portfolio constraints.”  As of May of this year, MFS had approximately $21 million in assets under management invested in blended research strategies.

The SEC’s Order alleges that from 2006 through 2015, MFS created research proofs based on the blended research analysis. The data and a bar chart describing the analysis were featured in MFS advertisements.  MFS subsequently used the bar chart in three different kinds of marketing materials: in a standard slide deck from 2006 through 2015, in responses to formal requests from clients starting in 2012, and in a white paper that discussed MFS’s blended research strategies.  These materials were marketed exclusively to institutional clients, prospective institutional clients, financial intermediaries, and investment consultants.