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The SEC recently charged New York-based investment advisers Two Sigma Investments LP and Two Sigma Advisers LP (collectively, “Two Sigma”) with breaching their fiduciary duties for failing to reasonably address known vulnerabilities in their investment models. In its Order, the SEC also found compliance and supervisory failures related to those violations, plus violation of the Commission’s whistleblower protections via Two Sigma’s employee separation agreements.

Two Sigma is a large quantitative-analytics-based hedge fund manager using computer-based algorithmic investment models when managing or advising client investments. The SEC claims that, by March 2019, multiple Two Sigma employees had informed senior management that various Two Sigma personnel could freely change variable inputs of their algorithmic models. These unchecked input modifications would alter the algorithm’s predictions and trades without notifying the firm, its representatives, or its clients. This autonomy of various personnel to rewrite the models’ data could materially impact investment decisions for Two Sigma clients. Continue reading ›

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The SEC recently entered a cease-and-desist order against an SEC-registered investment adviser Federal Prep Advisors, Inc. (“Federal Prep”) and its principal regarding its rollover recommendations from Thrift Savings Plan (“TSP”) accounts to advisory Individual Retirement Accounts (“IRAs”). The SEC determined that Federal Prep did not adequately evaluate and disclose the costs associated with the TSP and its services or the available investment options under the TSP, among other things.[1]

The Thrift Savings Plan is a defined contribution retirement plan for federal employees and members of the uniformed services, and generally has lower fees compared to private employer-sponsored 401(k) plans. From at least June 2020 until around June of 2023, Federal Prep advised approximately 300 clients to rollover assets from a TSP account to an IRA managed by Federal Prep.

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The SEC recently announced its annual Examination Priorities for the 2025 year. This annual release provides insight into the areas that the SEC plans to highlight when inspecting investment advisers, investment companies, broker-dealers, and other entities subject to examination by the SEC’s Division of Examinations. For investment advisers, the 2025 priorities largely are unchanged from the announced 2024 priorities, which we have previously discussed.

For FY25, the SEC again intends to focus on investment advisers who have never been examined, newly registered investment advisers, and investment advisers who have not been examined recently.

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Last month, the SEC announced a series of settled enforcement actions against investment advisers who routinely failed to file 13F and 13H reports with the Commission. The actions are tied to the SEC’s announced examination priority to assess the accuracy and completeness of regulatory filings.

Depending on the frequency, aggregate amount of transacted securities, types of securities, or value of securities an investment adviser advises, advisers registered with the SEC are subject to many filing requirements. Of these, the most common are the 13F and 13H reports required pursuant to Section 13 of the Exchange Act.

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Last week, the SEC announced a series of enforcement actions tied to its ongoing sweep of investment adviser compliance with the new Marketing Rule. In total, nine firms settled claims that they violated Advisers Act Rule 206(4)-1, the “new Marketing Rule,” resulting in $1,240,000 in civil penalties.

We have previously written about the implementation of the new Marketing Rule, the announcement of the corresponding examination sweep program, and the subsequent enforcement actions that have resulted. While the previous enforcement actions have largely centered around investment advisers who have failed to adopt policies and procedures designed to prevent violations of the new Marketing Rule, the recent enforcement actions give greater insight into the real-world application of the new Marketing Rule. Namely, the actions detail marketing violations due to the use of third-party ratings by the investment advisers.

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The Financial Crimes Enforcement Network (“FinCEN”) adopted final rules to bring the majority of the investment advisory industry under the reporting requirements for illicit finance activity. The update brings “investment advisers,” as defined under the new rule, within the definition of “financial institution” for regulation under the Bank Secrecy Act (“BSA”).

The BSA has long attempted to safeguard the US financial system by monitoring and reporting certain activities and transactions. Under the new FinCEN Rule, certain investment advisers have the same regulatory requirements historically reserved for banks, broker-dealers, money transmitters, and casinos.

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The Corporate Transparency Act (“Act”) became effective January 1, 2024. The goal of the Act is to provide a framework for the collection of beneficial ownership information from non-exempt entities in order to protect national security interests and bring the United States up to international standards.

The Act requires that all non-exempt corporations, limited liability companies, and similar entities report beneficial ownership information to the Department of Treasury’s Financial Crimes Enforcement Network (“FinCEN”). Under the Act, SEC-registered investment advisers are exempt entities. However, state-registered investment advisers are non-exempt under the current framework. State-registered investment advisers created before January 1, 2024, must file the report by January 1, 2025. State-registered investment advisers created on or after January 1, 2024, but before January 1, 2025, have 90 days after receiving notice of their creation to file the initial report. State-registered investment advisers created after January 1, 2025, will have 30 days after receiving notice of their creation to file the original report. Once submitted, there is no regular reporting requirement. However, you must report changes to beneficial ownership on an ongoing basis, in a timely manner, within 30 days of the change. Continue reading ›

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In September 2023, the U.S. Securities and Exchange Commission (“SEC”) filed a complaint against Lufkin Advisors, LLC, a now de-registered Registered Investment Adviser, and its President, Chauncey Forbush Lufkin, III (collectively, “Defendants”) in the U.S. District Court for the Southern District of Florida.

The SEC first alleged an ongoing fraudulent course of conduct for multiple years. To support this claim, they alleged that the Defendants

  • Failed to manage assets entrusted to them,
  • Lost control–due to a lost or forgotten password–of cryptocurrency assets valuing an estimated $10 million for at least a year without notification to the client(s),
  • Made investments with Mr. Lufkin’s spouse’s company without the appropriate conflict of interest disclosures,
  • Failed to account for withdrawals from private funds, and
  • Failed to monitor the value of investments in private funds.

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Earlier this month, the United States Court of Appeals for the First Circuit issued a unanimous decision upholding a circuit court’s ruling in SEC v. Navellier & Associates, Inc.[i] This ruling granted the SEC summary judgment finding that Navellier & Associates, a Nevada based investment adviser, violated Section 206 of the Adviser’s Act.

For the past ten years, we have written about a series of SEC enforcement actions centered around the advertisement of performance returns tied to F-Squared, previously the U.S. largest marketer of ETF-based index products. The F-Squared and related cases not only established the SEC’s position regarding the publication of performance advertising but also recognized an investment adviser’s fiduciary duty when adopting statements made by third parties in advertisements. The SEC’s positions were codified under the new Marketing Rule adopted in 2021.

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In November 2022, the U.S. Securities and Exchange Commission (“SEC”) adopted new rule 14Ad-1, which requires that institutional investment managers that are subject to the reporting requirements of section 13(f) of the Exchange Act annually report each say-on-pay vote over which the manager had voting power on the Form N-PX. Institutional investment managers include any person, other than a natural person, investing in or buying and selling securities for its own account, and any person exercising investment discretion with respect to the account of any other person (“Institutional Managers”). Any Institutional Managers that are required to file Form 13F must disclose any say-on-pay votes over which it exercised voting power on Form N-PX. The types of say-on-pay votes that must be reported include votes on approval of executive compensation, on the frequency of that compensation, and on approval of “golden parachute” compensation connected to a merger or acquisition.

The SEC adopted a two-part test to determine whether an Institutional Manager “exercised voting power” over a security and thus must report a say-on-pay vote on Form N-PX. Accordingly, an Institutional Manager must report a say-on-pay vote for a security if the manager: (1) has the power to vote, or direct the voting of, a security; and (2) exercises this power to influence a voting decision for the security. Even if an Institutional Manager did not exercise voting power over any say-on-pay votes, it must still file a notice on the Form N-PX indicating that it does not have any proxy votes to report. Continue reading ›

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