RIA Compliance Blog

How NASAA’s Proposed Model Rule Exempting M&A Brokers Stacks Up Against Other Efforts

February 10, 2015 | Dan MacIntyre

The Broker-Dealer section of the North American Securities Administrators Association (“NASAA”) recently sent out a notice of request for comment on a proposed uniform state model rule (“Model Rule”) that would exempt merger and acquisition brokers (“M&A Brokers”) from state securities registration if certain requirements were met. While NASAA’s proposed Model Rule is similar to the recent SEC No-Action letter concerning M&A Brokers and the exemption for M&A Brokers provided by HR 37, there are some notable differences. Comments on the Model Rule must be submitted to NASAA by February 16, 2015.

First, this post will lay out the three current proposals by SEC staff, Congress, and NASAA to create an M&A Broker registration exemption. Second, a comparison between all three will be made in order to highlight how each body plans to regulate and define the scope of the exemption for M&A Brokers. Each comparison will be broken up into key aspects of each proposal’s efforts to create an exemption for M&A Brokers. Third, this post will emphasize the need to create an exemption, along with M&A Brokers, that will encompass other important unregistered actors: Private Placement Brokers.
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Michigan: First State to Create Alternative Market for Private Crowdfunding

February 2, 2015 | Chadd Reynolds

On October 22, 2014, Michigan took a significant step to increase investment crowdfunding opportunities for Michigan businesses by becoming the first state to establish an intrastate market where broker-dealers can sell securities of Michigan-based companies. While “crowdfunding” can have different meanings, including rewards-based fundraising campaigns on sites like Kickstarter and Indiegogo, “investment crowdfunding” generally refers to small businesses seeking investment capital in small amounts from a large number of investors.

The signing of House Bill 5273 by Governor Rick Snyder, along with the state’s preexisting registration exemption for securities issued by Michigan businesses under the Michigan Invests Locally Exemption (“MILE Act”), allows Michigan business to raise capital over the Internet or though general solicitation by selling the exempt securities within a newly-created alternative intrastate market.
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Non-Registered Crowdfunding Site Reaches Settlement with SEC

January 26, 2015 | Chadd Reynolds

In a settlement that underscores the SEC’s increased scrutiny of crowdfunding sites and whether they are acting as broker-dealers, the SEC agreed to a settlement with Eureeca Capital SPC (“Eureeca”), on November 10, 2014, over charges alleging willful violations of Sections 5(a) and 5(c) of the Securities Act and Section 15(a) of the Exchange Act. The settlement involves Eureeca’s failure to register as a broker-dealer and to conform with the exemption from securities registration provided by Rule 506(c). According to the terms of the settlement, Eureeca, while neither admitting nor denying the SEC’s allegations, consented to the cease and desist order and the accompanying sanctions.

Eureeca is a crowdfunding portal organized in the Cayman Islands. The site connects issuers with potential investors looking to invest in businesses in exchange for equity. Eureeca receives a percentage of the funds raised in successful offerings as compensation. During the period of time covered by the settlement agreement, the offerings of securities listed on Eureeca’s website were neither registered with the SEC nor did they meet the registration exemption of Rule 506(c) that allows for the sale of unregistered securities for which general solicitation occurs.
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NASAA Unveils Electronic Filing Depository

January 26, 2015 | Chadd Reynolds

On December 15, 2014, the North American Securities Administrators Association (“NASAA”) launched an online electronic filing system to be used for issuers filling Form D, Rule 506 offerings with state securities regulators. The purposes of this new electronic filing depository (“EFD”) website, according to NASAA president William Beatty, are to provide an efficient and streamlined process for regulatory filings and to allow for increased transparency for investors.

Issuers seeking an exemption under Rule 506 must meet certain requirements in order to avoid having to register their public or private offerings with the SEC or state regulators. However, those issuers must still file a notice of exempt offering of securities, or “Form D,” with the SEC and state securities regulators. Instead of the longer and more tedious process of registering with securities regulators, Form D requires only limited information about the issuer, the investors, and the securities offered.
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Private Placement Brokers Should Be Legalized Along with M&A Brokers

January 21, 2015 | Dan MacIntyre

In 2005, an American Bar Association task force published an exhaustively researched report that highlighted a huge “gray market” of unregistered brokerage activity, conducted by people that sometimes refer to themselves as “finders,” that is critical to the development of early stage companies, but operating in technical violation of the Securities Exchange Act of 1934 (“ABA Report”). Other than occasional enforcement actions against bad actors, the SEC did little to address this problem until early 2014, when it issued a No-Action letter which blessed certain restricted activities of merger and acquisition brokers (“M&A Brokers”). The SEC’s approach to other private placement brokers has been to restrict their activities even further. Compare Paul Anka, SEC No-Action Letter (July 24, 1991) (granting legal “finder” status) with Brumberg, Mackey & Wall, PLC., SEC No-Action Letter (May 17, 2010) (restricting “finder” status). Courts have not always agreed with the SEC. See SEC v. Kramer, 778 F.Supp.2d 1320 (M.D. Fla. 2011) (proposing a non-exhaustive six-factor test for registration).

On January 6th, the first day of the 114th Congress’s new session, the House of Representatives considered H.R. 37. This bill proposes again multiple pieces of legislation that passed the House in the previous congress but were not taken up by the Senate. The bill has now been remanded to the House Committee process. H.R. 37 contains eleven separate items which would affect the current financial regulatory landscape. One of the proposed provisions responds to concerns about financial intermediaries such as finders that participate in mergers and acquisitions. This blog post advocates that Congress, while considering legalization of M&A Brokers, should also legalize a limited class of private placement brokers.
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SEC to Conduct Presence Exams for Never-Before Examined Investment Advisers in 2015

January 20, 2015 | Chadd Reynolds

During the January 7th Practising Law Institute conference on Hedge Fund Compliance and Regulatory Challenges, the Director of the SEC Office of Compliance Inspections and Examinations (“OCIE”), Andrew Bowden, previewed some of the new priorities on which the SEC will focus in 2015. Some of the areas of focus include protecting investors, specifically those in or close to retirement, cyber security, and the use of data analytics to identify potential wrongdoers. One of the other priorities discussed was OCIE’s new initiative to use “presence exams” to examine certain investment advisers that have never been examined. Investment advisers who have been registered with the SEC for three or more years will potentially be selected for a presence exam.

Presence exams are less intensive, shorter exams, taking up about two-thirds the time of a regular SEC examination. These exams tend to be more narrow in scope and focus on specific areas of concern that the SEC may have. In October 2012, SEC staff created presence exams for investment advisers who were required to register with the SEC for the first time because of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). These newly required SEC registrants under Dodd-Frank included, for example, hedge fund advisers with more than $150 million in assets under management. Bowden stated that the SEC performed close to 400 of these exams and that OCIE’s goal to examine 25% of the investment advisers required to register with the SEC under Dodd-Frank by 2014 was met.
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Investment Adviser Settles with SEC Over False Advertising Claims

January 15, 2015 | Chadd Reynolds

On December 22, 2014, the SEC announced a settlement with F-Squared Investments (“F-Squared”) in which F-Squared will pay a civil penalty and disgorgement for violations of the anti-fraud provisions of the Investment Advisers Act by advertising falsely inflated performance numbers of its most successful exchange traded fund (“ETF”) investment strategy. Under the terms of the settlement, F-Squared, the largest U.S. marketer of index products using ETFs, agreed to disgorge $30 million and pay a $5 million penalty.

In October 2008, F-squared, along with its co-founder and former CEO, developed an investment strategy called AlphaSector. AlphaSector used data received from an algorithm to decide whether or not to buy or sell nine industry-focused ETFs. The algorithm was developed by an intern at a private wealth advisory firm, who told F-Squared’s CEO that it had been used before to manage the private wealth advisor’s client assets. The intern sent F-Squared’s CEO three separate data sets of hypothetical, back-tested weekly trends for each of the ETFs. This data was then used by an F-Squared employee to calculate hypothetical back-tested results for AlphaSector from April 2001 to September 2008.
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Investment Advisers and Social Media

January 2, 2015 | Chadd Reynolds

As the use of social media becomes more prevalent and popular, businesses and financial institutions have begun to utilize the new methods of communication that social media can provide. Many businesses already maintain blogs or interactive accounts like Twitter, Facebook, and Instagram as a method of marketing and interacting with clients or prospective customers. However, social media is a relatively new and constantly changing technology that can create unique and unforeseen risks to a businesses image and regulatory compliance policies. These risks are particularly acute for registered investment advisers.

In the broker-dealer world, FINRA has already adopted rules and issued regulatory notices designed to protect investors from false or misleading claims and representations and guide member firms on how to appropriately monitor their social media participation. Although not strictly applicable to pure RIAs, these rules should be viewed as best practices:

FINRA Rule 2210 and NASD Rule 3010 govern the supervision of a firm’s social media communications;

FINRA Rule 2111 requires that social media communications, if recommending a security, must be considered suitable for the targeted investors; and

Record keeping of all social media communications is required under FINRA Rule 4510.

SEC to Focus on Variable Annuities and Alternative Mutual Funds in 2015

December 22, 2014 | Chadd Reynolds

Last month at the American Law Institute’s Conference on Life Insurance Company Products, the chief of the SEC’s Office of Compliance, Inspections, and Examinations (“OCIE”) informed attendees that the agency will increase its focus on variable annuities during 2015. Also attending the conference was the Director of the SEC’s Division of Investment Management (“DIM”), who discussed his views on how to address concerns created by new trends in variable annuities and the recent growth of alternative mutual funds.

One of the reasons for the increased focus on variable annuities is that broker-dealers are beginning to sell more and more of these products to their clients, said the SEC’s chief of OCIE. As a result, OCIE exams will include discussions with broker-dealers about what the insurance companies are telling them about the products they provide to make sure broker-dealers understand the products they are selling and are accurately explaining the products to their clients.
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Texas Charges RIA with Using Misleading Brochure and Advertisements

December 8, 2014 | Chadd Reynolds

On November 17th, the Texas State Securities Board’s Office of Inspections and Compliance charged Mowery Capital Management, LLC (“Mowery Capital”) and one of its investment adviser representatives (collectively “Respondents”) with fraud for failing to disclose certain conflicts of interests, charging excessive fees, plagiarizing advertising material, and other material misrepresentations. The complaint requests that the state Securities Commissioner revoke Respondents’ registration with the state, levy an administrative fine, and issue a cease and desist order prohibiting any further fraudulent behavior.

When registering as a registered investment adviser, a Form ADV must be completed and filed with the appropriate securities authority. Part 2 of the Form ADV, or the “Brochure,” acts as the primary disclosure document for clients and requires the applicant to write in plain English general information about the business (i.e. types of services offered, fee schedule, business and educational background of employees), including any possible conflicts of interest the applicant may have.
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