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The California Department of Corporations has extended the comment period for a proposed rule to amend Rule 260.204.9 of Title 10 of the California Code of Regulations, which exempts private advisers from registration under certain circumstances. The public comment period for this exemption was extended from February 20, 2012 to March 25, 2012. To date, there are no public hearings scheduled; however comments may be mailed to the Department of Corporations.

The amended proposed rule significantly changes the current rule in place. Currently, the rule provides for an exemption for any adviser that:

  • Has had fewer than 15 clients in the preceding 12 months;
  • Does not hold itself out to the public as an investment adviser;
  • Does not act as an investment adviser to a registered company or a company that has elected to be a business development company; and
  • Either has assets under management of $25 million or more or provides investment advice solely to one or more venture capital companies.

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As a result of the Dodd-Frank Wall Street Reform and Consumer Protection Act passed on July 21, 2010, there have been significant reforms applicable to non-US advisers conducting business in the United States, including new registration requirements under the Advisers Act (the “Act”).

Non-U.S. advisers may need to register with the Securities and Exchange Commission (SEC) in order to conduct future business within the United States. A non-U.S. adviser is defined in the Advisers Act as an investment adviser that:

  • Has no place of business in the United States;
  • Has a total of less than 15 U.S. clients and investors in private funds;
  • Has less than $25 million in assets under management associated with the U.S. clients and investors; and
  • Does not hold itself out generally as a U.S. investment adviser.

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In a move that signals the need for heightened due diligence and supervision among financial advisory firms, the Financial Industry Regulatory Authority (FINRA) released Regulatory Notice 12-03 in relation to complex products last month. It is intended to guide firms to increase their supervision of activity involving complex products such as structured notes, reverse convertibles, inverse or leveraged exchange traded funds, hedge funds and securitized products. FINRA has already brought a number of enforcement actions against firms relating to complex products, charging inadequate supervision, unsuitable recommendations and misleading price sales.

Among the problems noted by FINRA is the uncertainty of how these products will behave in the market, as opposed to theoretical projections. The notice states, “Regulators have expressed concern about complex products because the intricacy of these products can impair the ability of registered representatives or their customers to understand how the product will perform in a variety of time periods and market environments, and can lead to inappropriate recommendations and sales.”

FINRA chose not to define a complex product in the notice due to the ever changing innovation in the marketplace; however, the notice states that “any product with multiple features that affect its investment returns differently under various scenarios is potentially complex.” The notice goes on to give a non-exhaustive list of examples of complex products. FINRA advises firms that are unsure whether a product is complex to err on the side of applying their procedures for enhanced oversight to the product.
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According to a survey conducted by Cogent Research and sponsored by Fidelity Institutional Wealth Services (Fidelity), 76% of new independent financial advisers claim to be better off financially, and 64% of them were able to make that claim in the first six months of going independent. These numbers are based on a survey of 173 advisers who went independent in the last five years. They were unaware that Fidelity was sponsoring the research.

Eighty-six percent of the advisers claimed that all or most of their clients moved with them. It was reported that thirty-nine percent of their clients were immediately supportive of their decision, forty-three percent were initially surprised but then supportive, and eighteen percent were initially concerned but ultimately became supportive of the decision.
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The Georgia Commissioner of Securities has proposed twelve amendments to investment adviser and broker-dealer rules it promulgated late last year under the Georgia Uniform Securities Act. Although some of the amendments deal with housekeeping issues and typographical errors, several are substantive and of interest to industry participants and their counsel.

A proposed change to Rule 590-4-2-.03 would clarify that Rule 505 Form D filings under the Uniform Limited Offering Exemption must be made within 15 days after the first sale of securities in the state, rather than 15 days prior to the sale, as required by the rule as originally adopted.

The second proposed amendment applies to registration of securities by non-profit entities under Rule 590-4-2-.07, often used for so-called “church bonds.” Under the rule as originally adopted, the application of NASAA Statements of Policy relating to church bonds was permissive rather than mandatory: “The Statements of Policy … may be applied, as applicable, to the proposed offer or sale of a security …” and “may serve as the grounds for the disallowance of the exemption” provided by the Act. Under the amendment, the use of the NASAA Policies is now mandatory, the “may” having been replaced by “shall” in both cases.
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The Securities and Exchange Commission (SEC) has filed a proposed settlement, subject to court approval, for insider trading violations against seven fund managers and analysts along with two multi-billion dollar hedge fund advisory firms, Diamondback Capital Management LLC and Level Global Investors LP. According to the SEC, individuals with both firms received nonpublic, material information about Dell Inc. and Nvidia Corp. The cases charge illicit gains exceeding $62.3 million for the Dell trades and $15.7 million for the Nvidia trades.

The seven individuals named in the SEC complaint are Sandeep Goyal, Jesse Tortora, Todd Newman, Spyridon Adondakis, Anthony Chiasson, Jon Horvath and Danny Kuo. Goyal is charged with obtaining quarterly earnings information from an insider at Dell and telling Diamondback Analyst Tortora, who in turn tipped his portfolio manager Newman. Tortora also allegedly tipped three other people: Horvath, Kuo, and Adonakis, an analyst at Level Global who tipped his manager, Chiasson. In turn, Kuo allegedly obtained nonpublic, material information about Nvidia and tipped Tortora and Adondakis. SEC Enforcement Division Director Robert Khuzami said, “These are not low-level employees succumbing to temptation by seizing a chance opportunity. These are sophisticated players who built a corrupt network to systematically and methodically obtain and exploit illegal inside information again and again at the expense of law-abiding investors and the integrity of the markets.”
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One year ago, the Securities and Exchange Commission (SEC) staff recommended that a uniform fiduciary standard be applied to both broker-dealers and investment advisers. Recently, however, the SEC postponed a corresponding rule proposal for a second time.

In January, SEC Chairman Mary Schapiro sent a letter to Congressman Scott Garrett, Chairman of the House Capital Markets Subcommittee, stating that it needs to gather additional information for an economic analysis of the impact of a standard of care regulation. Although the SEC had previously set it for action in 2011, that time frame has now been changed to “date to be determined.” The SEC has already designated specific time frames for 51 other rules and reports required by the Dodd-Frank Act.

In the letter to Rep. Garrett, Chairman Schapiro wrote, “SEC staff are drafting a public request for information to obtain data specific to the provision of retail financial advice and the regulatory alternatives. In this request, it is our hope commentators will provide information that will allow commission staff to continue to analyze the various components of the market for retail financial advice.”
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In a letter sent to the Financial Industry Regulator Authority (FINRA) last November, the Securities Industry and Financial Market Association (SIFMA) wants FINRA to give harsher punishments to brokers who have failed to pay back promissory notes to firms. It specifically sought to prevent brokers from being able to plead poverty to escape arbitration payment orders. The purpose of the notes is to provide cash for recruiting and retention incentives. They are typically designed as forgivable loans as long as the broker stays at the firm for a specified amount of time. If the brokers choose to leave early, then they are required to pay back the note.

As a result of not paying the promissory note back, firms have gotten more aggressive in filing arbitration claims for repayment, and in most cases the firm wins. In 2011, there were 778 promissory note cases filed which is a decrease from 2010 during which 1,152 cases were filed. If a broker does not pay the promissory award, FINRA files an action against him/her that could lead to suspension. Once a monetary award has been issued in a FINRA arbitration proceeding, the broker has 30 days to pay the award. If the broker can show an inability to pay back the note; however, he/she will not be suspended and can continue to work for another firm.
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In a previous blog, we discussed the Financial Industry Regulatory Authority’s (FINRA’s) proposed Rule 2210 regarding social media. FINRA responded to comments by amending the proposed rule, and filing it with the SEC for approval. The amended rule was designed to respond to concerns about whether certain types of communications should be considered correspondence or public appearances.

In the rule as originally proposed, interactive social media communications would be classified as public appearances such as television interviews, and would have to be filed with regulators. As a result of comments to the proposal, FINRA amended the rule to exclude messages on online interactive forums from a post-use filing requirement.

FINRA explains that the reasoning behind this change is due to the belief that participation in online forums occur in real-time, that it is not practical to require pre-use approval of such postings by a principal, and that these types of communications should be classified as retail communications. According to FINRA, “retail communication would include any written (including electronic) communication that is distributed or made available to more than 25 retail investors within any 30 calendar-day period. ‘Retail investor would include any person other than an institutional investor, regardless of whether the person has an account with the member.'” This means that the retail communication category would instead be supervised by broker-dealers in the same manner as correspondence.
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It is expected that more brokers will leave their wirehouse firms in the coming year. Numerous independent firms, Schwab Advisor Services, TD Ameritrade Institutional, Pershing Advisor Solutions LLC, Fidelity Institutional Wealth Services and Diamond Consultants LLC, saw an increase in “breakaway brokers” joining them in 2011. As a result of these breakaway brokers, Cerulli Associates Inc. has predicted in a recent report that the wirehouses’ market share of assets will drop from an estimated 43% last year to 35% in 2013.

The report also states that the big firms no longer seem to care as much about the market share they possess but rather seem intent on retaining their top advisers.
This trend in increasing breakaways seems to be a result of brokers who have been waiting for production requirements in earlier recruitment and retention deals to be fulfilled this year. Brokers may also be growing frustrated with increasing compliance demands, as well as with the bureaucracy and managements of their firms. The president of Diamond Consultants LLC, Mindy Diamond, agrees that there will be more breakaways in 2012 and states, “and at the same time, firms in the independent space have come up with a lot of solutions for advisers.”
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