Articles Tagged with Conflicts of Interest

On June 20, 2023, the U.S. Securities and Exchange Commission (“SEC”) issued an order against Insight Venture Management LLC (“Insight”). The SEC and Insight settled the matter to resolve allegations that the adviser charged excessive management fees caused by the adviser’s inaccurate application of its “permanent impairment” policy and that the adviser failed to disclose a conflict of interest related to these fee calculations.

Insight is an adviser that advises private equity funds. Limited partnership agreements (“agreements”) associated with some of these private equity funds stated that Insight charged management fees during the funds’ post-commitment period—the period during which a fund manager manages and looks to exit funds’ investments—based on the investor’s pro rata share of the funds’ invested capital. The agreements further stated that if Insight determined an investment suffered a “permanent impairment” in value, the adviser would remove an amount equal to the difference between the acquisition cost and the impaired value of the investment. This amount would be paid from the funds’ invested capital, which would in turn reduce the basis used to calculate fees paid by the fund to Insight. The agreements allotted Insight discretion to reverse the “permanent impairment” determination if the investment increased in value thereafter.
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On August 3, 2022, the U.S. Securities and Exchange Commission (“SEC”) published a Staff Bulletin related to compensation incentives that may cause a conflict of interest in violation of Regulation Best Interest (“Reg BI”) rules and the SEC’s fiduciary standards for investment advisers (“IA fiduciary standard”). Reg BI and the IA fiduciary standard provide that a conflict of interest is an interest that may consciously or unconsciously incline a broker dealer or investment adviser to make recommendations or render advise that is not disinterested. According to Reg BI and the IA fiduciary standard, broker dealers and investment advisers must identify and either disclose or eliminate all conflicts of interest.

The IA fiduciary standard encompasses both the duty of loyalty and the duty of care. According to the Commission Interpretation Regarding Standard of Conduct for Investment Advisers published in 2019, the duty of loyalty requires investments advisers to at a minimum disclose a conflict of interest so that a client may provide informed consent to said conflict or eliminate the conflict entirely. The 2019 Commission Interpretation also explains that the duty of care requires investment advisers to provide advice based on a reasonable understanding of the client’s goals and objectives that is in the client’s best interest.
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On June 13, 2022, the Securities and Exchange Commission (“SEC”) issued an order instituting administrative and cease-and-desist proceedings against Charles Schwab & Co., Inc. (“CS & Co.”), Charles Schwab Investment Advisory, Inc. (“CSIA”), and Schwab Wealth Investment Advisory, Inc. (“SWIA”), (collectively, “Schwab subsidiaries”) who submitted an offer of settlement without admitting or denying the findings of the order, except as to jurisdiction and subject matter. The order alleges that these investment adviser subsidiaries of The Charles Schwab Corporation (“Schwab”) listed before made false and misleading disclosures on Forms ADV Part 2A and published false and misleading advertising regarding Schwab Intelligent Portfolios (“SIP”), a robo-adviser service.

The Schwab subsidiaries did not charge an advisory fee for the SIP service and instead made money by allocating a fixed percentage of a client’s portfolio to cash and depositing that cash with Schwab Bank. Schwab Bank then loaned the cash out at a higher interest rate than the interest rate paid to clients in order to make a profit.

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Earlier this month, the Securities and Exchange Commission announced the examination priorities for registered investment adviser and broker-dealer examinations to be conducted in 2021 by the SEC’s Division of Examinations (formerly the Office of Compliance Inspections and Examinations).

The list included a continued focus on conflicts of interest, including examining for compliance with Reg BI (for broker-dealers) and with an investment adviser’s fiduciary duty. Among the matters examined will be whether RIAs comply with care and loyalty duties that arise from the fiduciary duty. Whether firms have taken appropriate steps to mitigate, disclose or eliminate conflicts of interest will continue to be a focus, with an emphasis on whether customers received enough information to be the basis of informed consent. The Division will also continue to prioritize examining information regarding investment products that carry elevated risks, such as certain ETFs, municipal securities, private placements, variable annuities, and microcap securities.

Not surprisingly, the Division will also focus on two areas that were emphasized over the last two years to varying degrees: ESG-related risks and disclosures and proxy voting practices. RIAs who offer asset management based on ESG principles will be questioned regarding their representations regarding products or services provided, including representations regarding third-party managers or products. The Division will also examine to ensure that proxies have been voted consistent with customer’s desires to invest in ESG focused investments.

Business continuity and disaster recovery plans will be a focus this year, including whether lessons learned during the pandemic have appropriately informed changes to such plans. A greater emphasis will also be placed on climate-related risks, due to greater instances of climate hazards experienced in recent years attributable to climate change. These types of issues will be of heightened concern for examinations of critical market participants such as clearing firms and market makers.

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SEC Issues Risk Alert to Private Fund Advisers, Part 2

This supplements our previous post relating to a Risk Alert issued by the SEC’s Office of Compliance Inspections and Examinations on June 23. The Risk Alert was directed at investment advisers to private investment funds. While the prior post discussed the portion of the Risk Alert dealing with fees and expenses, this post discusses the SEC’s findings relating to failure to disclose conflicts of interest.

By way of background, the Risk Alert reminds private fund advisers that they owe duties of care and loyalty to the investors in private funds. In order to fulfill the duty of loyalty, the adviser may not prefer his own interests to those of the investors and must disclose to its clients, in a full and fair manner, all material facts relating to the advisory relationship. The scope of the investment adviser’s duties is discussed at length in IA-5248, issued in June 2019, which we have discussed in a previous post.

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