Articles Tagged with Deficiencies

A new Risk Alert released by the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) reminds advisers of the added compliance obligations that arise when hiring representatives carrying the baggage of reportable disciplinary histories. While by no means exhorting advisers not to hire such persons, the Risk Alert nonetheless encourages advisers to properly consider the obvious compliance risks presented by such hiring practices, and, in turn, to adopt prudent policies and procedures to address those risks.

We follow OCIE’s periodic Risk Alerts closely as they not only provide insights regarding the focus of recent OCIE examinations, but also provide insights as to what OCIE management will be directing the staff to focus on in the future. This particular Risk Alert is a read-out of the results of a recent series of OCIE exams from 2017 specifically targeting advisory firms that (i) previously employed, or currently employ, any individual with a history of disciplinary events and (ii) for the most part serve retail clients. Indeed, OCIE makes special notation of its “focus on protecting retail investors” as a genesis for both the targeted exam initiative (the “Initiative”) as well as this new Risk Alert. Accordingly, advisers with a large retail customer base should pay especially close attention to the new Risk Alert.

In conducting the Initiative, OCIE’s staff focused on three areas of interest: (i) the compliance policies and procedures put into place to specifically cover the activities of previously-disciplined individuals; (ii) the disclosures relating to previously-disciplined individuals required to be made in filings and other public documents (including advertising); and (iii) conflicts of interest implicated by the hiring of previously-disciplined individuals. With this roadmap in place, the Initiative identified a variety of observed deficiencies across a range of topics, including:

On February 7, 2017, the Securities and Exchange Commission’s (“SEC”) Office of Compliance Inspections and Examinations (“OCIE”) released a list of five compliance topics that are the most commonly identified topics “in deficiency letters that were sent to SEC-registered investment advisers.”  OCIE published this list in a National Exam Program Risk Alert in order to help advisers who are conducting their annual compliance reviews.

The first compliance topic was compliance with the Compliance Rule, Rule 206(4)-7, which requires an investment adviser to create and execute written policies and procedures that are reasonably tailored to prevent the investment adviser and its supervised persons from violating the Advisers Act and to detect potential violations.  The rule also requires an investment adviser to review the sufficiency of its policies and procedures at least annually and to appoint a chief compliance officer.  According to OCIE, common violations of the Compliance Rule include not having a compliance manual that is reasonably suited to the adviser’s method of doing business, failure to conduct annual reviews or annual reviews that did not cover the sufficiency of the investment adviser’s policies and procedures, failure to follow policies and procedures, and compliance manuals that are outdated.

The second topic that OCIE identified was compliance with the Advisers’ Acts rules on regulatory filings.  For example, Rule 204-1 provides that investment advisers must make amendments to their Form ADV on at least an annual basis, and the amendments must be made “within 90 days of the end of their fiscal year and more frequently, if required by the instructions to Form ADV.”  For investment advisers to private funds, Rule 204(b)-1 provides that an investment adviser must file a Form PF if the investment adviser is advising a private fund or fund with assets of $150 million or more.  Finally, Rule 503 of Regulation D of the Securities Act of 1933 provides that issuers of private funds must file a Form D, and investment advisers usually file the Form D for their private fund clients.  OCIE determined that the most frequent violations of these rules were inaccurate disclosures on Form ADV Part 1 or Part 2A, late modifications to Form ADVs, faulty and late Form PF filings, and faulty and late Form D filings.

A compliance advisor working for City Securities Corporation (“City Securities”) has agreed to a Letter of Acceptance, Waiver and Consent (AWC) in a FINRA enforcement case alleging deficiencies in the way the advisor performed his compliance duties at the broker-dealer.  John Walter Ruggles, who first became registered in 1993 and became associated with City Securities in May 2014, was charged with failing to generate monthly Municipal Continuing Disclosure Reports (MCDs), which are required in order to comply with the Municipal Securities Rule Making Board’s (MSRB) disclosure requirements.  More specifically, among Ruggles’ tasks were to populate the MCDs with transaction data on behalf of City Securities’ customers and to email the data to the private client group, who would then routinely use the information contained in Ruggles’ emails to prepare customer satisfaction letters to City Securities’ clients regarding recent municipal bond trading activity.

The AWC alleges that Ruggles’ supervisor confronted Ruggles with the fact that he had not received the MCDs due for February 2015, and asked Ruggles to produce documentation showing that Ruggles had performed the tasks going back to June 2014.  Ruggles provided six printed emails to his supervisor in response to the supervisor’s request.  Those emails contain the trade details that were supposed to have been included in the MCDs.  The supervisor, however, attempted to verify the data contained in Ruggles’ printed emails, but in investigating the situation found (1) that City Securities’ email backup files did not contain any of the emails that Ruggles provided, (2) that several of the execution dates referenced on the bond trades in the emails were different from the actual execution dates as reflected in the transaction data, (3) that for a period of approximately five months, the firm’s compliance system showed that Ruggles had not opened and viewed the MCDs from which he was supposed to have taken the data, and (4) that the falsified emails contained erroneous dates in the subject lines.

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The Financial Industry Regulatory Authority (FINRA) and the Securities and Exchange Commission (SEC) recently jointly issued a Risk Alert and a Regulatory Notice on broker-dealer branch office inspections designed to help securities industry firms better supervise their branch offices, as well as to underscore the importance of that supervision.

“An effective risk based branch office inspection program is an important component of a broker-dealer’s supervisory system and, when constructed and implemented reasonably, it can better protect investors and the firm’s own interest,” stated Stephen Luparello, Vice Chairman of FINRA.

The risk alert specifically makes the following recommendations to firms, including:

  • Increasing the frequency of branch inspections, especially unannounced visits;
  • Customizing examinations to branch activity based on risk assessments;
  • Involving more senior personnel in exams;
  • Insuring that examiners have no conflicts of interest; and
  • Increasing supervision of certain offices based upon surveillance data and requiring corrective actions to address deficiencies noted.

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