Adviser Regulatory & Compliance News

Posts from December, 2017.

Senate Confirms Peirce and Jackson as New Commissioners

December 22, 2017

The full Senate on confirmed by voice vote Hester Pierce, a Republican, and Robert Jackson, a Democrat, to be Commissioners of the SEC. The SEC now has its full allotment of commissioners. Mr. Jackson, a professor at Columbia University, and Ms. Peirce, a senior research fellow at George Mason University, will join the SEC after they are sworn in. Chairman Jay Clayton and Commissioners Michael Piwowar and Kara Stein are the other three Commissioners.

ICOs:  the Chairman Speaks

December 20, 2017

When the SEC Chairman speaks, folks listen. On Dec. 11, SEC Chair Clayton issued a lengthy "statement" on the current wave of initial coin offerings (ICOs) (see our Nov. 13 story on the basics), focusing on whether ICOs are treated as securities under the federal securities laws. He noted that, while not all tokens may be securities, simply calling a token something else does not bring an offering outside the SEC’s purview. “Key hallmarks” of tokens being securities include, in the SEC’s view, when an issuer emphasizes the possibility for ICO tokens to appreciate in value or encourages a secondary market for tokens. Clayton’s statement, along with recent SEC efforts to stop certain ICOs, indicate that increased enforcement activity in this area will continue. Click the heading to access the Statement.

F-Squared Related Action Brought Against an Investment Adviser

December 8, 2017

The SEC brought an enforcement action against Horter Investment Management, LLC that was related to a prior enforcement action against F-Squared. The SEC stated that the matter arises from misstatements made by registered investment adviser Horter to certain of its advisory clients concerning F-Squared Investments, Inc.’s materially inflated, and hypothetical and back-tested, performance track record for its AlphaSector strategy. The SEC noted that from January 2012 to October 1, 2013, in reliance on F-Squared’s false statements, Horter disseminated AlphaSector advertisements falsely stating: (a) assets had been invested in the AlphaSector strategy from April 2001 to September 2008; and (b) the track record had significantly outperformed the S&P 500 Index from April 2001 to September 2008. In fact, no F-Squared or other client assets had tracked the strategy from April 2001 through September 2008. In addition, the SEC found that F-Squared miscalculated the historical performance of AlphaSector from April 2001 to September 2008 by incorrectly implementing signals in advance of when such signals actually could have occurred. Because of this inaccurate compilation of historical data by F-Squared, Horter advertised the AlphaSector strategy by using hypothetical and back-tested historical performance that was inflated substantially over what performance would have been if F-Squared had applied the signals accurately. As a result, Horter violated Sections 206(2) and 206(4) of the Advisers Act and Rule 206(4)-1(a)(5) thereunder by publishing, circulating, and distributing advertisements that contained untrue statements of material fact.

SEC Commissioner Stein Speaks on Adviser Issues

December 7, 2017

SEC Commissioner Kara Stein spoke at the at Investment Company Institute’s 2017 Securities Law Developments Conference on a number of investment management issues including those impacting advisers. After speaking about ETFs and fund disclosure issues, she discussed the relationship between an investment adviser and its client. She spoke about the debate around standards of conduct, are conflicts of interest. She stated that conflicts can result from a number of sources and relationships, but some of the most significant are those resulting from compensation arrangements. She stated that this is true whether compensation is transactional or fee-based; each can incentivize certain behaviors that may not be in the best interests of a particular customer or client. She then stated that brokers and advisers should be required to mitigate these conflicts, and the standard of conduct by which they provide advice can help ensure that that happens. She posed the question of whether it is better to have multiple standards or one standard that fits all; the question ought to be whether the standard is appropriate for the conduct in which the person is engaging. She concluded by noting that disclosure has always been an important piece of this puzzle for the SEC and the securities laws, and there are clearly existing models on both the broker-dealer and investment adviser sides. She stated that we all know that providing disclosure, and ensuring that those disclosures are effective, are very different things; certain academic evidence notes that disclosure leads advisers to be even more biased by seeming to absolve them from paying attention to their advisees’ interests. In effect, disclosure has limited utility for both the investor and the professional providing it to the investor.

Private funds and managers:  Dealing with the Seemingly Crazy Broker-Dealer Requirements

December 2, 2017

For private fund managers, the tricks and traps of selling their funds can be maddening! Believe me, I've been there. All sorts of issues: is the fund exempt? Do placement agents and finders have to be registered as a broker or dealer or personnel of one? Etc.! Foley & Lardner recently published a short guide to navigating the broker-dealer rules. Click the headline to get the publication.

ALJ’s Officially Ratified and Appointed

December 2, 2017

Addressing a nettlesome issue, the SEC Commissioners formally ratified the appointment of the SEC's administrative law judges. The ratification attempts to defuse a constitutional issue re: the appointment of the judges and the validity of their actions some of which have been challenged in court. Click the link in the heading to read the SEC's press release.