Compliance

New Registration Requirements for Developers & Supervisors of Algorithmic Trading Strategies

May 13, 2016 | Patricia Klusmeyer

The Securities and Exchange Commission (“SEC”) recently approved a proposed Financial Industry Regulatory Authority (“FINRA”) rule change which will require associated persons responsible for the design, development, and significant modification of algorithmic trading strategies, or the supervision of such activities, to register as Securities Traders. This development highlights the increasing regulatory and enforcement focus FINRA & the SEC are placing on the use of trading algorithms in the financial services industry.

Currently, associated persons are required to register as Securities Traders if they are engaged in proprietary trading, the execution of transactions on an agency basis, or the direct supervision of such activities with respect to off-exchange transactions in equity, preferred or convertible debt securities. FINRA is expanding this requirement to include associated persons who are: 1) primarily responsible for the design, development or significant modification of algorithmic trading strategies; or 2) responsible for the day to-day supervision or direction of such activities.

FINRA Sanctions Personnel for Compliance Failures

May 4, 2016 | Steve Parker

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.

DOL Releases Final Fiduciary Rule

April 20, 2016 | Patricia Klusmeyer

The Department of Labor (“DOL”) released the final version of its new fiduciary rule on Wednesday April 6, ending months of widespread speculation and apprehension in the financial services industry. The DOL appears to have heard the thousands of public comments asking for more clarification and simplification, particularly as related to the Best Interests Contract (“BIC”) exemption. The final rule contains some notable deviations from the proposed rule.

As we discussed in an earlier blog post, the former definition of fiduciary for providing investment advice to a covered employee benefit plan under the Employee Retirement Income Security Act of 1974 (“ERISA”) and the Internal Revenue Code of 1986 (“Code”) stated that financial advisers were generally only fiduciaries if such investment advice was given on a regular basis and pursuant to a mutual understanding that the advice would serve as the primary basis for investment decisions and would be individualized to the particular needs of the plan. This definition typically encompassed only financial advisers in established and ongoing relationships with their clients, such as investment advisers who provided investment advice to covered plans. Meanwhile, broker-dealers and insurance agents were generally excluded, and broker-dealers were only held to the same suitability standard for retirement plans that applies to their recommendations made to non-retirement plans.

CFPB Issues First Cybersecurity Order Against Payment Platform for Deceptive Practices

March 18, 2016 | Patricia Klusmeyer

The Consumer Financial Protection Bureau (“CFPB”) recently instituted a cybersecurity enforcement action against an online payment platform, Dwolla, Inc., in the form of a consent order. This consent order is significant because it is the first time the CFPB has sought to institute an enforcement action in the cybersecurity arena after it was given the authority to do so under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”), highlighting the increasing emphasis being placed by financial regulators on cybersecurity practices. The Securities and Exchange Commission (“SEC”), Financial Industry Regulatory Authority (“FINRA”), and the Federal Trade Commission (“FTC”), among others, have all been quite active in policing data security practices of financial institutions in recent years. The SEC even listed cybersecurity control procedures of registered broker-dealers and investment advisers as one of its examination priorities for 2016.

The Dodd-Frank Act gives CFPB supervisory authority over providers of consumer financial products or services. It also authorizes CFPB to take enforcement action to prevent unfair, deceptive or abusive acts or practices from these providers. In this case, Dwolla allegedly made several exaggerated claims regarding the strength of its data security practices that the CFPB found to be deceptive within the meaning of the Dodd-Frank Act.

Final DOL Fiduciary Rule Predicted to Significantly Alter Sale of Annuity Products

March 8, 2016 | Patricia Klusmeyer

As the Department of Labor’s (“DOL’s”) proposed fiduciary rule awaits final adoption, market participants are starting to predict how it will affect retirement investment advice given that financial advisers such as broker-dealers, investment advisers, insurance companies, and other financial institutions, as well as their representatives, may soon be subjected to heightened fiduciary standards. Specifically, the sale of annuity products is predicted to face a large amount of change given its commission-based nature.

Currently, under the Employee Retirement Income Security Act of 1974 (“ERISA”) and the Internal Revenue Code of 1986 (“Code”), financial advisers are generally only fiduciaries if they provide investment advice or recommendations for compensation to employee benefit plans or participants and such advice is given on a regular basis and pursuant to a mutual understanding that the advice will serve as the primary basis for investment decisions and will be individualized to the particular needs of the plan. While investment advisers already have fiduciary duties under the Investment Advisers Act of 1940, the current narrow definition of fiduciary under ERISA and the Code generally does not encompass broker-dealers.

Common Mistakes to Avoid in Form ADV Annual Updates

January 22, 2016 | Patricia Klusmeyer

Filing annual updating amendments to Form ADV is an important requirement for all registered investment advisers. All information contained in Parts 1 and 2 of Form ADV must be both accurate and complete. Unfortunately, this is not always the case, and the Securities Exchange Commission (“SEC”) and state regulators have not hesitated in bringing enforcement actions against investment advisers who misrepresent or fail to disclose certain information in their annual filings and amendments.

Based on 1170 routine state-coordinated investment adviser examinations in 2015, as reported by the North American Securities Administrators Association (“NASAA”), the most common errors that are routinely found on Form ADVs include inconsistencies between Form ADV Part 1 and Part 2, inconsistencies between fees charged and fees listed on the ADV, inconsistencies between services provided and services described in ADV, misrepresentations in business description, overstatements or understatements of assets under management, and failure to disclose conflicts of interest.

SEC Enforcement Action Underscores Importance Of Gift Policies

September 16, 2015 | Steve Parker

A recent enforcement action settled in an administrative proceeding brought by the Securities and Exchange Commission (“SEC”) underscores the importance for investment advisers to adopt and follow rules designed to prohibit inappropriate gifts to and from clients by investment adviser personnel. In a matter previously discussed on our blog, Guggenheim Partners Investment Management, LLC (“Guggenheim”) settled charges, without admitting or denying any violations that it had failed to adopt, or implement reasonable compliance procedures as required by Rule 206(4)-7 under the Investment Adviser’s Act designed to regulate gifts and entertainment provided to and from the adviser or its personnel.

More specifically, the SEC’s Order instituting administrative proceedings recited that Guggenheim’s compliance manual adopted a rule that required supervised persons to seek and obtain approval of the Chief Compliance Officer before personnel could receive any gift above an established de minimis value that was defined in the manual as being $250.00 or less. Despite this policy, between 2009 and 2012 at least seven Guggenheim employees took 44 or more flights on private planes of Guggenheim clients, none of which were reported to the Chief Compliance Officer as required by the policy. The compliance log reflected only one such flight that was only recorded because the flight had been mentioned to the Chief Compliance Officer after the flight occurred. The Commission found that Guggenheim failed to enforce its own policies with respect to gifts and entertainment and failed to implement compliance policies and procedures regarding gifts and entertainment.
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SEC Issues Guidance Update on Cybersecurity

May 29, 2015 | Steve Parker

Last month, the SEC division of Investment Management released Investment Management Guidance in which it discusses a number of measures that investment advisers may wish to consider when addressing cybersecurity risks. This guidance is just the last in a long list of guidance and alerts issued by the SEC and other regulators as to the need for financial firms to improve their policies and procedures dealing with cybersecurity threats.

Among the recommendations made in the current IM are that firms:

• Conduct a periodic assessment of the nature, sensitivity and location of information, what types of cybersecurity threats and vulnerabilities exist, what security controls and processes are currently in place, the impact that would occur in the event of compromise of information, and the effectiveness of the current structure confirms current structure for managing cyber security risks

LPL Financial Ordered by FINRA to Pay $11.7 Million

May 15, 2015 | Steve Parker

Earlier this month, the Financial Industry Regulatory Authority (“FINRA”) announced that it had fined LPL Financial (“LPL”) $10 million for lack of supervision in several areas of its operations, including sales of ETFs, variable annuities, REITs, and other complex products. In addition, FINRA found LPL failed to monitor trades and failed to report them to FINRA and failed to deliver more than $14 million in trade confirmations to customers. FINRA also ordered LPL to repay certain customers $1.7 million in restitution relating to the purchases of ETFs. Among FINRA’s findings were that the firm did not have a system that monitored how long customers were holding ETFs in their accounts, information that would be important in formulating advice as to whether the ETFs should have been purchased in the first place and how long the client should be recommended to hold the ETFs in their portfolios. Additionally, even though LPL had created policies limiting the concentration of ETFs in customer accounts, it failed to enforce the limits it had established and had not trained its registered representatives on the risks of those products.

With respect to variable annuities, FINRA found that in several instances, LPL had permitted said annuities to be sold without proper disclosure of surrender fees. Additionally, although LPL employed an automated surveillance system, that system failed to adequately review transactions commonly known as mutual fund “switches,” which involve a redemption of one mutual fund in order to purchase another.
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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.