SEC Tag Archives — Page 22 of 23

SEC Issues Investment Adviser Risk Alert on Social Media

January 16, 2012 | Steve Parker

The Securities and Exchange Commission (SEC) recently issued a National Examination Risk Alert to investment advisers discussing the use of social media. Social media is becoming more widely used as a means to communicate with investors, and advisers need to ensure they are meeting their compliance requirements. The purpose of the alert is to inform advisers of ways they can improve and maintain sufficient compliance practices in using social media websites.

The SEC listed a number of issues for firms to consider as they evaluate the effectiveness of their compliance programs. Among all of the guidelines, some areas firms are encouraged to consider include:

Whether they want to create usage guidelines to address which social media networks are appropriate for use and restrictions which may be appropriate for each network;
Whether to create content standards to prohibit specific content or impose other restrictions in relation to their social media networks;
How their compliance or supervisory personnel can adequately monitor the sites, and how frequently they should be monitored;
Whether content must be pre-approved before posting to a site;
Whether there are adequate resources dedicated to monitor the activity adequately on the social media sites;
Developing criteria for allowing participation by third parties ;
Implementing training related to social media-related compliance practices;
Whether certification should be required to ensure that those individuals using the social media sites understand and are complying with the firm’s internal policies;
Whether to adopt policies distinguishing between personal and professional sites, possibly specifying the types of communication about the firm which are acceptable on a site not maintained by the firm; and
How to maintain information security.

Social Media Scam Artist Shut Down by SEC

January 9, 2012 | Steve Parker

The Securities and Exchange Commission (SEC) recently filed a cease-and-desist order against an Illinois man, Anthony Fields, for scamming investors with a fictitious securities offering. Fields attempted to sell more than $500 billion in securities using various social media websites, including LinkedIn.

Fields claimed to be a representative of a “leading institutional broker-dealer” through his firms: Anthony Fields & Associates and Platinum Securities Brokers. He was not registered as a broker/dealer with the SEC nor was he licensed as an associate with a registered broker/dealer.

The SEC has claimed that Fields violated numerous securities regulations. Allegedly, he promoted fictitious bank guarantees by setting up an unfunded investment adviser and an unfunded broker-dealer. He registered both of these with the SEC; however, he did so by filing false applications in March 2010. He also failed to maintain adequate books and records or carry out proper compliance procedures. Finally, he overstated his assets under management by claiming he had $400 million when, in actuality, he had none.
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Financial Advisors Should Note More Restrictive Accredited Investor Definition

January 6, 2012 | Steve Parker

The Securities and Exchange Commission (SEC) has adopted a new rule that redefines the standard for “accredited” investors. Required by the Dodd-Frank legislation enacted in 2010, the accredited investor standard is intended to protect less sophisticated investors in less regulated investments. The rule change, which eliminates an investor’s principal residence from consideration in determining accredited status, may dramatically affect whether some potential investors remain eligible for Regulation D offerings.

Most of the accredited investor qualification criteria remain the same, but the net worth criteria has changed. In order to qualify as an accredited investor, the qualifying net worth amount remains $1,000,000; however, the value of the investor’s principal residence must now be excluded from the calculation of the investor’s assets. In addition, subject to some exceptions, the amount of the mortgage debt on the principal residence is also excluded from the investor’s liability calculation. The overall purpose of the changes is to insure that accredited investor status is determined without regard to the value of any equity in the principal residence.
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FINRA And SEC To Firms: Improve Branch Office Supervision

January 6, 2012 | Steve Parker

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.

SEC Snares Hedge Funds Using Risk Analytics

December 5, 2011 | Steve Parker

The Securities and Exchange Commission (SEC) has implemented a new program — called the Aberrational Performance Inquiry (API) — that has resulted in enforcement proceedings against three hedge funds for overstating material aspects of their business. API looks to find statements made by funds relating to its investment strategy, performance or size, and compares those claims to market data using proprietary analytical processes. In a statement, the SEC stated that API is being used to find the same type of misleading information from registered investment advisers, not just hedge funds.

“We’re using risk analytics and unconventional methods to help achieve the holy grail of securities law enforcement — earlier detection and prevention,” said Robert Khuzami, Director of the SEC’s Division of Enforcement, according to an SEC enforcement release. Robert Kaplan and Bruce Karpati, Co-Chiefs of the SEC Enforcement Division’s Asset Management Unit, added, “The extraordinary returns reported by these advisers and portfolio managers were, in most cases, too good to be true. In other cases, outlier returns were a telltale sign that something else was amiss.”
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Private Fund Reporting Form Approved

November 17, 2011 | Steve Parker

On October 26, 2011, the Securities and Exchange Commission (“SEC”) announced the adoption of Form PF, which stands for “Private Fund.” Required by the Dodd Frank Wall Street Reform and Consumer Protection Act, the adoption of the form seeks to require reporting by larger hedge fund and venture capital private advisers in an effort to assess systemic risks.

The minimum amount of assets under management before the reporting requirement is triggered is $150 million, meaning that smaller private fund advisers are not required to file Form PF at all. Once this threshold is reached, however, there is a tiered reporting requirement base on the level of assets under management within different categories as established by the form. The exclusion for the smaller advisers is justified because their funds have a minimal impact on a broad based systemic risk analysis, according to a statement by SEC Chairman Mary Shapiro delivered in connection with the adoption of the form.
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Regulators Issue Report on Investment Adviser Violations

October 30, 2011 | Steve Parker

With the increase in authority granted by the Dodd-Frank Act to state regulators over registered investment advisers, there has been a noticeable uptick in the number and intensity of state examinations of IA firms. In a national survey coordinated by NASAA, and released this fall, 40 state RIA examiners were found to have uncovered 3,543 violations in examinations of 825 firms during the first half of this year, an average of over 4 violations per firm. The survey found that registration and books and records violations predominated, with violations related to unethical practices and supervision not far behind.

Well over half of the firms examined were cited for registration violations, and 45% for books and record violations. The examinations also found significant numbers of violations in the areas of advertising, compliance with privacy rules, financial disclosure, fees charged and custody of funds.
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Virginia Adopts Private Adviser Policy Statement

July 20, 2011 | Steve Parker

The Virginia State Corporation Commission (Securities and Retail Franchising Division) yesterday adopted a policy statement providing guidance to advisers to private funds in light of the June 22, 2011 adoption of final rules adopted by the Securities and Exchange Commission. Specifically, the Virginia statement recognizes and addresses the “regulatory gap” created by the SEC Rule 203-1(e), which grants an extension to March 30 2012 for private advisers formerly exempt from registration under Investment Adviser Act Section 203(b)(3), which was repealed by Dodd-Frank, to register with the SEC.

As a consequence of Dodd-Frank, Virginia’s Rule 21 VAC 5-80-210A.7, which excludes from the definition of “investment advisers” certain advisers exempt under Section 203(b)(3) of the Investment Adviser Act, becomes a nullity on July 21, 2011. In the absence of the policy statement, the effect of this would be to require private advisers subject to Virginia registration requirements, and that have no other basis for exemption, to register in Virginia as investment advisers by July 22, 2011.
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Advisers Act Rules Implementing Dodd-Frank Adopted by SEC

June 28, 2011 | Steve Parker

On June 22, 2011, the Securities and Exchange Commission (SEC) adopted new rules and rule amendments under the Investment Advisers Act of 1940 to implement provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Among other things, the rules, as adopted, provided transitional provisions for investment advisers required to switch from SEC to state registration because they fail to meet the new requirement of $100 million in assets under management, require advisers to hedge funds and other private funds to register with the SEC, require reporting by certain exempt investment advisers, and make substantial changes to the Form ADV.

The final rule relating to transition differed somewhat from the rule originally proposed by the SEC. The final rule requires that any “mid-sized” registrant with the SEC (defined as any firm with between $25 million and $100 million under management) that is registered as of July 21, 2011 (Dodd-Frank’s effective date) must remain registered with the SEC through the transition. New applicants that meet the definition of mid-sized advisers and who seek to apply between January 1, 2011 and July 21, 2011 can apply either with the SEC or the state or states in which it must register.
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SEC Defines Family Offices Exempt from RIA Registration

June 23, 2011 | Steve Parker

In a rule adopted yesterday, the Securities and Exchange Commission (SEC) adopted a rule defining “family offices.” “Family offices” are entities established by wealthy families to manage their wealth and provide other services to family members, such as tax and estate planning services. Family offices were exempt from registration as investment advisers with “fewer than fifteen clients” prior to passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act, but when that act goes into effect on July 21, 2011, they will no longer be able to claim that broad exemption because it will be repealed.

In its place, as authorized by Congress, the SEC has exempted a new category of advisers that constitute “family offices.” A family office (1) provides investment advice only to “family clients,” as defined by the rule; (2) Is wholly owned by family clients and is exclusively controlled by family members and/or family entities, as defined by the rule; and (3) Does not hold itself out to the public as an investment adviser.
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