All posts by Clifford E. Kirsch

With more than 25 years of experience, Cliff regularly counsels clients on the design and distribution of investment products including wrap-fee programs and other advisory products, mutual funds, bank collective investment funds and insurance products. He also focuses on issues related to the design and implementation of compliance programs at financial services firms.

Not Throwing Away Your Shot: Relying on Compliance Consultants to Defend Regulatory Actions

You are a CCO responsible for completing and filing Form ADV. You hire a compliance consultant to advise you on what information to include. You act in accordance with that advice, but you later find out that the SEC has instituted a proceeding against you and the firm due to the firm’s inadequate disclosures.

  • So, what now?
  • How do you defend yourself and the firm in this proceeding?
  • Is reliance on compliance consultants an available defense?
  • Will that succeed?

Who lives, who dies, and who tells your story (as Alexander Hamilton might say)?

Read More Here

Additional contributor to this post:

Brian L. Rubinbrianrubin@eversheds-sutherland.com

Analysis of FINRA Cases Shows Record-Breaking 2016

Eversheds Sutherland (US) LLP has completed its annual study of the disciplinary actions reported by FINRA in 2016.  Key takeaways:

  • In 2016, the amount of fines ordered by FINRA shattered its previous record set in 2014
  • While the number of cases reported was on par with prior years, the amount of restitution declined significantly from 2015’s record total
  • Top enforcement issues and emerging trends for FINRA

View the results here

Additional contributor to this post:

Brian L. Rubinbrianrubin@eversheds-sutherland.com

FINRA Proposal to Permit Investment Planning Illustrations

As an outgrowth of FINRA’s retrospective rule review of its advertising rules, in Regulatory Notice 17-06 FINRA solicits comments on proposed amendments to FINRA Rule 2210 (Communications with the Public) to create an exception to the rule’s prohibition on projecting performance.  The exception would permit a firm to distribute a customized hypothetical investment planning illustration that includes the projected performance of an asset allocation or other investment strategy subject to specified conditions.  Comments on the proposal are due to FINRA by March 27th.  The proposed exception would provide flexibility for depicting hypothetical performance of an asset allocation model or other investment strategy provided the projected performance does not depict any individual security.

SEC OCIE Alert on Adviser Exams: 5 Most Frequent Deficiencies

The SEC’s OCIE office released its 5 most frequent deficiencies identified in examinations of Investment Advisers. They include the Compliance Rule, Regulatory Filings, Custody Rule, Code of Ethics Rule, and Books and Records.  According to the SEC staff, the Alert is based upon deficiencies cited from over 1,000 investment adviser exams over the past two years.  The document is helpful to the adviser legal and compliance personnel, not necessarily because there are surprises in the deficiencies cited, but because there is good amount of detail as to each of the cited deficiencies and thereby serves as a roadmap to be incorporated into the adviser’s annual compliance review.   View the Alert here: The Five Most Frequent Compliance T opics

OCIE Exam Reviews to Include Whistleblower Rule Compliance

Last week, the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) issued a risk alert dealing with the whistleblower provisions arising out of the Dodd-Frank Act. While examining registered investment advisers and registered broker-dealers, the Staff is reviewing, among other things, compliance manuals, codes of ethics, employment agreements, and severance agreements to determine whether provisions in those documents pertaining to confidentiality of information and reporting of possible securities law violations may raise concerns under Rule 21F-17 under the Dodd-Frank Act. This review is included in examinations as staff deem appropriate. This exam focus follows several recent SEC enforcement actions charging violations of Rule 21F-17 of the Commission’s whistleblower regulations.

Read more here: National Exam Program Risk Alert: OCIE Examining Whistleblower Rule Compliance