Skip to Content
Main Content

Investment Management Legal and Regulatory Update - January 2015

January 16, 2015
View as PDF

Industry staff guidance

SEC announces 2015 exam priorities
The SEC’s National Examination Program (NEP) published its 2015 examination priorities for broker-dealers, investment advisers, and investment companies. The priorities focus on three areas:  protecting retail investors, assessing market-wide risks, and analyzing data to identify and examine registrants that may be engaged in illegal activity.

Protecting retail investors. The NEP will focus on the following examination initiatives to assess the risks that new products and services may pose to retail investors.

Fee selection and reverse churning. Rather than solely operating as a broker-dealer, many financial professionals are operating as an investment adviser or as a dually registered investment adviser/broker-dealer. Under this structure, investment advisers may offer a variety of fee structures, including asset-based fees, performance-based fees, and hourly fees. Examiners will pay particular attention to advisers that offer a variety of fees to ensure that the fee arrangements and account recommendations are in the best interest of the client.

Sales practices. The staff will review broker-dealers’ practices to ensure that recommendations to move a client’s retirement assets from an employer-sponsored defined contribution plan into another investment account are proper and not misleading.

Suitability. The staff will continue to evaluate the suitability of recommendations to invest retirement assets in complex products and the broker-dealer’s client disclosures in connection with those recommendations.

Branch offices. The staff will monitor a broker-dealer’s supervision of its registered representatives in branch offices and the home office’s simultaneous supervision of its branch offices.

Alternative investment companies. Consistent with the recent attention relating to alternative investments, the staff will continue to review mutual funds offering alternative investments and using alternative strategies. The staff will pay particular attention to the funds’ valuation policies, internal controls, and marketing practices.

Fixed income investment companies. The staff will continue to assess whether mutual funds with “significant” interest rate exposure have adopted adequate controls to ensure that their client disclosures are not misleading and are consistent with their investment and liquidity profiles.

Never-before-examined investment companies. This initiative will use a risk-based approach to select and examine registered investment company complexes that have never been subject to a staff examination.

Assessing market-wide risks. The NEP intends to watch for structural risks and trends involving multiple firms or entire industries.

Large firm monitoring. The staff will continue to monitor the largest U.S. broker-dealers and asset managers to assess firm-based risks and maintain awareness of industry-wide developments.

Clearing agencies. Through a risk-based approach, the staff will continue to conduct annual examinations of systemically important clearing agencies.

Cybersecurity. The staff intends to continue its examinations of the cybersecurity compliance and controls of broker-dealers and investment advisers and to increase those examinations to include transfer agents in 2015.

Potential equity order routing conflicts. The staff will review and assess whether firms are complying with their best execution duties when determining order flow.

Using data to identify potentially illegal activity. The staff will use its enhanced data analytics to focus on firms and registrants that may be engaged in fraudulent or illegal activity.

Recidivist representatives. The staff will continue to identify individuals with a history of misconduct and will increase its examination of the firms that employ the recidivist individuals.

Microcap fraud. The staff will continue to review market manipulation practices by broker-dealers and transfer agents.

Excessive trading. The staff will continue to analyze information obtained from clearing brokers to determine whether introducing brokers and registered representatives may be involved in excessive trading.

Anti-money laundering (AML).  Focusing on firms that have not filed suspicious activity reports (“SARs”) or that have filed incomplete or late reports, the staff will continue to examine clearing and introducing broker-dealers’ AML programs. In 2015, the staff will also examine the AML programs of broker-dealers allowing customers to make cash deposits and withdrawals or providing customers with direct access to the markets from “higher-risk jurisdictions.”

Other initiatives. The staff also expects to allocate examination resources to the following priorities.

Municipal advisors. The staff will continue examining newly registered municipal advisors and their compliance with the Municipal Securities Rulemaking Board rules.

Proxy services. The staff will examine proxy advisory service firms, assessing how the firms make recommendations and disclose conflicts of interest, as well as investment advisers’ proxy voting policies and procedures in light of their fiduciary duties to clients.

Fees and expenses in private equity funds. The staff expects to continue examining private equity funds in 2015.

Source: Examination Priorities for 2015, Office of Compliance Inspections and Examinations, January 13, 2015, available at

FINRA issues its 2015 exam priorities letter
The Financial Industry Regulatory Authority (FINRA) issued its Regulatory and Examinations Priorities Letter in January 2015.  This letter, which is in its tenth edition, identifies areas that the regulator believes are high risk in the industry.

Past challenges. The letter highlights five challenges for firms and registered representatives that FINRA has observed throughout the years. FINRA noted that the first challenge area was that firms are not putting the customer’s interests first and called for firms to align their interests with the interests of their customers. As its second challenge, FINRA reviewed the importance of firm culture, stating that many of the problems observed in the industry have their roots in firm culture. A poor culture may arise, for example, if firm management places undue emphasis on short-term profits. Good culture starts with the board and the executives practicing high standards of ethical behavior. Firms can improve their culture by promoting ethical behavior and creating and enforcing policies that do not tolerate poor practices. The third challenge that FINRA noted was maintaining a strong system of supervision, risk management, and controls, all of which help safeguard the firm’s culture. The fourth challenge addressed the regular creation of new products and services in the industry.  Firms need to review and understand these new products and services and determine whether they are suitable for their clients. Finally, FINRA noted that conflicts of interest are the fifth challenge and encouraged firms to identify and mitigate such conflicts.

2015 areas of focus. FINRA identified specific areas of concern for 2015, including product-focused concerns such as interest rate-sensitive products and alternative mutual funds.

FINRA noted that it intends to examine concentrated positions in interest rate-sensitive products and test for suitability and adequate disclosures, particularly in the current low interest rate environment. Similar to Norm Champ’s speech discussed above, the letter also highlighted several of the same concerns regarding alternative mutual funds that Champ raised. FINRA noted that registered representatives may not fully understand how these funds will respond in various market conditions and that brokerage firms often are not adequately conducting an initial product review on the funds.

In addition to areas highlighted in past years’ letters, FINRA also noted new areas of concern, including “wealth event” controls, high-risk brokers, and cybersecurity controls.

“Wealth events,” such as the receipt of a life insurance payout, can have a significant impact on an investor’s life because such events can have long-term effects on the investor’s assets. In 2015, FINRA examiners will pay particular attention to how firms implement their supervisory, suitability, and disclosure obligations in connection with wealth events.

While FINRA already devotes considerable attention to monitoring brokers that may pose greater risk to the public, FINRA is expanding its use of technology and targeted exams to further thwart unscrupulous registered representatives. As an additional step, FINRA examiners will also review the brokerage firm’s procedures for monitoring recidivist individuals and documenting the firm’s supervisory plan for such employees.

FINRA expects to publish the results of its 2014 sweep on cybersecurity threats to brokerage firms in early 2015 and its report will include guidance for firms on cybersecurity risk management. Brokerage firms should carefully review this guidance, as FINRA stated that it intends to review firms’ cybersecurity controls, including controls to prevent the destruction of electronic books and records, in 2015.

Brokerage firms should review their relevant business practices in light of the 2015 priorities and monitor additional guidance provided by FINRA on areas of increased concern.

Source: Financial Industry Regulatory Authority 2015 Regulatory and Examination Priorities Letter (January 6, 2015), available at

IM guidance on family office rules and key employee trusts
The SEC’s IM Division issued a guidance update clarifying its stance on whether certain key employee trusts would qualify as “family clients” under Rule 202(a)(11)(G)-1 of the Advisers Act (Family Office Rule). The Family Office Rule exempts family offices providing advice solely to family clients from the definition of investment adviser under the Advisers Act. It also allows family offices to include “key employees,” non-family members whose position, experience and sophistication should allow them to protect themselves, and certain investment entities through which key employees may invest as family clients.

In its guidance, the IM Division first clarified that a trust may still qualify as a family client even if trust decision-making powers are split between non-key employees and key employees, provided that the non-key employees only make administrative decisions and not investment decisions. The staff provided the following examples of administrative decisions: (1) preparing and filing taxes for the trust; (2) keeping records for the trust; or (3) distributing periodic statements or disclosures to trust beneficiaries.

The IM Division next explained that trust investment decisions may be bifurcated between key employees, allowing one key employee to make such decisions on behalf of another key employee’s trust. The staff reasoned that allowing this bifurcation complies with the intent of the Family Office Rule because only key employees are making the investment decisions.

Source: Investment Management Guidance Update No. 2014-13, Key Employee Trusts under the Family Office Rule (December 2014).

NFA guidance on annual affirmation of exemption or exclusion from CPO or CTA registration
The National Futures Association (NFA) issued guidance for Commodity Pool Operators (CPOs) and Commodity Trading Advisors (CTAs) required to annually affirm their exemption or exclusion from registration under the Commodity Exchange Act (CEA).

CPOs exempted or excluded from registration under Commodity Futures Trading Commission (CFTC) Regulation 4.5, 4.13(a)(1), 4.13(a)(2), 4.13(a)(3), or 4.13(a)(5) or CTAs exempt under 4.14(a)(8) must annually affirm that exemption or exclusion within 60 days of the calendar year end. This year, the affirmation process requires CPOs and CTAs to affirm their exemption or exclusion by March 2, 2015. The NFA explained that failure to reaffirm by March 2, 2015 will be treated as a request to withdraw the relevant exemption or exclusion, which may require CPOs and CTAs to register with the NFA, and may subject unregistered CPOs and CTAs to an enforcement action by the CFTC.

Entities wishing to determine whether the firms with which they do business have completed the affirmation process may review the NFA’s BASIC system ( This system lists all of the entities that have exemptions or exclusions on file with the NFA and includes the date that the exemption or exclusion was affirmed, indicates if affirmation is still required, or reflects a withdrawal date for any exemption or exclusion that was not affirmed.

The NFA further explained that any new exemptions or exclusions filed during the affirmation process (December 3, 2014 to March 2, 2015) will not require an annual affirmation until the calendar year ending 2015.

Source: National Futures Association Notice I-14-34, Guidance on the Annual Affirmation Requirement for those Entities that are Currently Operating Under an Exemption or Exclusion from CPO or CTA Registration (December 3, 2014).

SEC staff speeches

Mary Jo White addresses risk monitoring and regulatory safeguards for the asset management industry
Securities and Exchange Commission (SEC) Chair Mary Jo White recently delivered a speech discussing the SEC’s plans to enhance and strengthen its response to regulatory issues in the asset management industry.

White began by noting that the Investment Company Act and the Advisers Act provide three significant tools:

  • controls on conflicts of interest;
  • a registration, reporting, and disclosure regime; and
  • controls on fund portfolio composition risks and operational risks.

Focusing on the third tool, White described three SEC staff initiatives to address controls on fund portfolio composition risks and operational risks. First, she discussed enhanced data reporting. Acknowledging that funds and advisers currently have significant data reporting obligations, White expressed her belief that the reporting obligations have not kept pace with emerging products and strategies in the industry. Particularly, she noted that reporting and disclosure requirements regarding a fund’s investment in complex derivatives, the liquidity and valuation of its holdings and its securities lending practices should all be significantly enhanced.

Second, White addressed controls on risks related to portfolio construction. She noted that inadequate controls governing liquidity management and derivative use by mutual funds and exchange-traded funds (ETFs) pose risks for the funds and the financial system as a whole. She indicated that the staff is considering requiring broad risk management programs to address liquidity and derivative use by mutual funds and ETFs. Furthermore, the staff is contemplating additional controls, including updating liquidity standards, disclosure of liquidity risks or measures to help limit the leverage created by a fund’s use of derivatives.

Finally, White addressed transition planning and stress testing, pointing out the potential negative impact on investors when an investment adviser winds down its practice. She noted that the staff is considering transition planning requirements for advisers and looking to find ways to implement annual stress testing by large investment advisers and large investment companies.

Before concluding her speech, White addressed the SEC’s role in managing systemic risk and clarified that the SEC’s objective is not to eliminate all risk. Rather, she explained that the SEC’s regulatory program should strike a balance between reducing undue risks and preserving the principle of “reward for risk” that underlies our capital markets.

Source: Remarks to the New York Times DealBook Opportunities for Tomorrow Conference (December 11, 2014), available at

Staff considers alternative mutual fund risks
In his speech before the Securities Industry and Financial Markets Association (SIFMA) Complex Products Forum, the Director of the SEC’s Division of Investment Management (IM Division), Norm Champ, focused much of his discussion on the staff’s continued efforts to monitor risk, particularly the risks posed by alternative mutual funds.

Champ presented statistics documenting the rapid growth of alternative mutual funds in the investment management industry. He began by acknowledging the benefits of these funds, stating that they have provided retail investors with access to investment strategies that were previously only available through private investment vehicles. He noted, however, that the complex nature of these investments also produces heightened risks and enhances the difficulty of disclosing the relevant risks in a manner that is readily understandable to the average investor.

Champ called for alternative funds to consider, on an ongoing basis, whether the fund’s principal investment strategies and risks included in its prospectus are complete, accurate and consistent with the fund’s operations. He addressed the concern that “there could be a disconnect” between the principal investment strategies and corresponding risks that a fund discloses in its prospectus and the strategies that the fund actually employs. Additionally, Champ remarked that funds should ensure that their disclosure is presented in plain English and that it provides investors with the information they need to make an informed investment decision.

Source: Remarks to the SIFMA Complex Products Forum (October 29, 2014), available at

Norm Champ’s remarks to the ICI 2014 securities law developments conference
Norm Champ, director of the IM Division, delivered a speech in December 2014 at the ICI Securities Law Developments Conference. During his speech, he highlighted, “The Division of Investment Management’s Top 10 Lessons Learned and Points to Remember from 2014.”

In reverse order, Champ began with item number 10, which focused on the IM Division’s expansion and sophistication of its staff. Champ noted that with the changing regulatory landscape, the IM Division has added to its expertise by hiring quantitative experts, portfolio managers, PhD economists, industry experts, examiners, lawyers, and accountants. The IM Division believes that this expertise helps create more informed policy decisions.

Number nine on Champ’s list was the collaborative working environment within the IM Division, across the SEC, and with other regulators and the industry. In highlighting collaborative results, Champ pointed to the updated guidance on the Volcker Rule and the recently adopted money market reforms.

Item eight covered the IM Division’s focus on risk monitoring, citing the 2012 addition of the Risk and Examinations Office (REO) industry monitoring program and examination program. Under these programs, the REO provides quantitative and qualitative financial analysis of the industry and gathers information from the industry to inform the IM Division’s policy making.

Data collection comprised item number seven, and Champ stated that continuing to pursue data collection and ways to analyze that data would help keep the IM Division up to date with market trends. Additionally, the information collection will help enhance rulemaking and enforcement activities and provide insightful guidance to the industry.

In item number six, Champ highlighted the importance of transparency in the IM Division’s decision-making process and cited Investment Management Guidance Updates as an example of the IM Division’s movement towards transparency.

Item number five shifted the discussion to the investment products and strategies used by the industry. Champ explained that it is the IM Division’s role to understand the products and strategies, identify their risks and benefits and properly formulate policies to protect investors while encouraging innovation.

With item number four, Champ highlighted the 10th anniversary of Rule 38a-1, compliance policies and procedures, and CCOs. Notably, Champ suggested that Rule 38a-1 is evolving and could be used to address new, emerging issues, such as cybersecurity and social media. He also referenced recent enforcement actions indicating that the SEC will not tolerate interference with CCOs who enforce their compliance policies and procedures.

For item number three, Champ featured the importance of communication between the IM Division and the industry. He reviewed the IM Division’s communication efforts by citing its outreach program, which seeks to engage senior level management and fund boards in discussions with the IM Division’s staff. Champ reasoned that a better understanding of the industry and asset managers will enable the SEC staff to be better regulators.

Champ stated that “protecting investors is the fundamental principle upon which the missions of the Commission and the Division are built” and placed getting out in front of industry developments and proactively monitoring risks at number two on the list.

At number one on Champ’s list of items to remember from 2014, he took a trip down memory lane while still looking toward the future. He noted that 2015 marks the 75th anniversary of the Investment Company Act and the Advisers Act and, acknowledging the Acts’ past success, recognized that these same rules and regulations would continue to foster future dialogue.

Source: Remarks to the ICI 2014 Securities Law Developments Conference (December 10, 2014), available at

SEC no-action relief

Family offices may request no-action relief from commodity trading advisor registration
The Private Investor Coalition, Inc. (Coalition) submitted a request to the Division of Swap Dealer and Intermediary Oversight (Division) of the CFTC that the Division not recommend an enforcement action to the CFTC against any family office for failing to register as a CTA in connection with advisory services that the office provides to a family client.

Precedent. In its requested relief, the Coalition referenced CFTC Staff Letter No. 12-37 (Letter 12-37), in which the Division provided no-action relief from CPO registration to CPOs that meet the SEC’s definition of “family office” under the Family Office Rule (Family Office). The Coalition asserted that Letter 12-37 did not similarly address any relief for Family Offices from CTA registration.

Relief. The Division agreed that the reasoning in Letter 12-37 regarding relief from CPO registration is equally true with respect to CTA registration for Family Offices and would be consistent with the Division’s prior instances of granting such relief. Accordingly, the Division granted the Coalition’s request to provide Family Offices relief from CTA registration in connection with the advisory services that they provide to family clients.

The Division advised that Family Offices wishing to rely on such CTA registration relief must submit a claim to the Division requesting the relief and remain in compliance with the Family Office Rule. The claim of no-action relief must:

(1) state the name, main business address and main business telephone number of the Family Office claiming relief; (2) state the capacity (i.e., CTA) and, where applicable, the name of the pool(s), for which the claim is being filed; (3) be electronically signed by the Family Office; and (4) be filed with the Division using the email address with the subject line “Family Office CTA Relief.”

The Division explained that a claim submitted by a Family Office will be effective immediately, provided that the claim is accurate and complete.

Sources: CFTC Staff Issues No-Action Relief for Family Offices from Commodity Trading Advisor Registration, Press Release (November 25, 2014), available at; CFTC Private Investor Coalition No-Action Letter (November 5, 2014).

Closed-end funds may file post-effective amendments to their registration statements under Rule 486(b)
Background. Nuveen Investment Funds, Inc. (Nuveen) requested assurance that the IM Division would not recommend an enforcement action to the SEC against any closed-end funds advised by Nuveen Fund Advisors, LLC (Nuveen Fund Advisors) for filing a post-effective amendment to a registration statement pursuant to Rule 486(b) under the Securities Act.

Nuveen explained that each fund is a closed-end management investment company registered under the Investment Company Act whose common shares are listed and traded on the New York Stock Exchange. Additionally, each fund has an effective shelf registration statement on Form N-2 on file with the SEC.

Rule 486(b) under the Securities Act allows certain closed-end investment companies to file post-effective amendments to their shelf registration statements to update their financial statements or make other non-material changes. Under Rule 486, these post-effective amendments become immediately effective. However, this rule is only available to funds that are organized as interval funds pursuant to Rule 22c-3 under the Investment Company Act.

Discussion. In its letter to the staff, Nuveen explained that each fund’s board of trustees determined that a continuously effective shelf registration statement would allow each fund to raise capital through that shelf registration statement, benefiting each fund, each fund’s shareholders and potential investors. The board also noted that the post-effective amendment process required under Section 8(c) of the Securities Act to update each fund’s financial statements might prohibit the funds from issuing new shares to the detriment of the funds and their shareholders.

For these reasons, Nuveen requested that the staff make Rule 486(b) under the Securities Act available to the funds, noting that this limited use would not erode investor protection and, instead, would provide investors with faster access to important fund information.

No-action relief. In reviewing Nuveen’s request, the staff took particular note of the following representations from Nuveen:

  • Each filing made in reliance on the requested relief would be made in compliance with the conditions of Rule 486(b);
  • Each fund will file a post-effective amendment containing a prospectus pursuant to Section 8(c) of the Securities Act prior to any offering of its common stock at a price below net asset value; and
  • In relying on the requested relief, each fund will sell newly issued shares at a price no lower than the sum of the fund’s net asset value plus the per share commission or underwriting discount.

Upon review of the facts and representations made by Nuveen, the staff granted Nuveen no-action relief, allowing each fund to file an immediately effective post-effective amendment pursuant to Rule 486(b) under the Securities Act.

Source: Nuveen Credit Strategies Income Fund, Nuveen Energy MLP Total Return Fund, and Nuveen Real Estate Income Fund, SEC No-Action Letter (November 7, 2014).

Litigation and SEC enforcement actions

Harbor capital’s motion to dismiss in excessive fee case denied
A shareholder in the Harbor International Fund filed a lawsuit against the fund and its investment adviser, Harbor Capital Advisors (Harbor), in February 2014 alleging that Harbor retained excessive management fees because the fund’s subadviser, Northern Cross, LLC (Northern Cross), did the majority of the work. According to the complaint, Harbor received $100.5 million in management fees during the 2012 fiscal year, compared to Northern Cross’s $125 million in management fees.

In its November 18, 2014 decision, the U.S. District Court for the Northern District of Illinois dismissed the claims against the fund but allowed the excessive-fee allegations against Harbor to proceed. The court noted that “although it is far from clear that [the plaintiff] will be able to meet the high standard for liability under [Section] 36(b), [the plaintiff] has alleged sufficient facts specific to the fees paid to Harbor Capital to survive a motion to dismiss.”

According to the fund’s prospectus, the fund charges a 75 basis point management fee on assets up to $12 billion, 65 basis points on assets in excess of $12 billion, 63 basis points on assets in excess of $24 billion, and 58 basis points on assets in excess of $36 billion. As of November 30, 2014, the Fund had $50 billion in assets.

Source: Harbor Fee Suit Gets Green Light from Judge, Ignites, Beagan Wilcox Volz (November 25, 2014).

SEC settles with F-Squared on claims of hypothetical performance
The SEC announced on December 22, 2014 that it reached a settlement with F-Squared Investments (F-Squared), a Massachusetts-based investment management firm, on charges that it defrauded investors through false performance advertising.  In its order, the SEC alleged that F-Squared used signals from a third-party algorithm to create a model portfolio of sector ETFs that were rebalanced as the signals changed.  The SEC’s complaint argued that F-Squared began receiving these signals in September 2008 and launched its new ETF portfolio, titled AlphaSector, a month later.  In marketing AlphaSector, the SEC alleged that F-Squared falsely advertised a track record for the strategy based on prior client account performance over the past seven years.  However, the SEC claimed that this performance was instead derived through backtesting, as the product had not existed for seven years.  The SEC further alleged that F-Squared and the firm’s co-founder and former CEO, Howard Present, specifically advertised the strategy as “not backtested” and that the hypothetical performance data used in the advertising contained a calculation error that inflated the returns by approximately 350 percent.

F-Squared agreed to an order finding that it violated the Advisers Act and that it aided and abetted and caused certain mutual funds sub-advised by F-Squared to violate the Investment Company Act.  In the settlement, F-Squared agreed to hire an independent compliance consultant and pay a $30 million disgorgement and a $5 million penalty.

The SEC also filed a civil action against Present, alleging that he knew the product was not finalized until September 2008 and that he was responsible for the advertising materials and the descriptions of AlphaSector included in F-Squared’s SEC filings.  This litigation is still ongoing.

Source: SEC Charges Investment Manager F-Squared and Former CEO with Making False Performance Claims, Press Release (December 22, 2014), available at

SEC charges investment adviser and CCO for custody rule violations
On October 29, 2014, the SEC charged Sands Brothers Asset Management LLC (Sands Brothers) and three top officials with violating the custody rule.  The custody rule requires advisory firms with custody of client money to follow certain procedures as a safeguard against misuse or theft.  One way for advisory firms to comply with the rule is to distribute audited financial statements to investors of pooled investment vehicles within 120 days of the fiscal year end.

The SEC alleged that Sands Brothers was repeatedly late in providing those financial statements to investors and that the firm’s co-founders, Steven Sands and Martin Sands, and the firm’s CCO, Christopher Kelly, were responsible for the custody rule violations.  The SEC’s order claims that Sands Brothers was anywhere from 40 days to eight months late in distributing audited financial statements to its investors and that the advisory firm and its co-founders were previously sanctioned for custody rule violations in 2010.

Source: SEC Announces Charges Against Investment Advisory Firm and Top Officials for Custody Rule Violations, Press Release (October 29, 2014), available at

The information contained herein is based on a summary of legal principles.  It is not to be construed as legal advice.  Individuals should consult with legal counsel before taking any action based on these principles to ensure their applicability in a given situation.

Recent News

Join Our Mailing List

Need to stay current on the latest news, trends and regulatory issues impacting your business? Subscribe today! We know your time is valuable, so we limit our communications to only the most pertinent info you need to stay informed.