All posts by Clifford E. Kirsch, Editor

Eversheds Sutherland 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.

Compliance, Regulatory, Standard of Care

Marketing Rule Compliance Checklist for investment advisers

February 19, 2022 Clifford E. Kirsch, Editor Leave a comment

To facilitate compliance with amendments to Rule 206(4)-1 (Marketing Rule) under the Investment Advisers Act of 1940, we developed a Compliance Checklist. The date for compliance is November 4, 2022 – by which time registered investment advisers must adopt and implement new policies and procedures, and build the operational and supervisory systems necessary for compliance.

The Marketing Rule modernizes the regulatory regime governing investment adviser marketing practices and revises standards that investment advisers have been operating under for decades.
Compliance with the Marketing Rule will require significant changes to investment advisers’ marketing practices, including use of testimonials, endorsements, or third party ratings and investment advisers’ use of performance information.
The Compliance Checklist is intended to serve as a helpful guide for legal and compliance personnel responsible for developing compliant policies, procedures, and systems that account for these sweeping changes.

You can access it here.

Compliance, Enforcement, Regulatory, Standard of Care

Huckleberry FINRA and Life on the MissiSECippi: Mark Twain, FINRA, SEC, CFTC and NASAA Enforcement Actions (November and December 2021)

February 9, 2022 Clifford E. Kirsch, Editor Leave a comment

From Brian Rubin and Amanda C. Oliveira in this month’s column for NSCP Currents:

Samuel Langhorne Clemens, d/b/a Mark Twain, was the author of many outstanding (and often humorous) books and short stories that had good guys (e.g., Huck, Jim and Tom), bad guys (e.g., Pap Finn; the Duke and the Dauphin, who were the equivalent of the 19th century boiler room fraudsters), self-regulators (e.g., Aunt Polly and the Widow Douglas), an actual Judge (well, fictional, but you know what we mean) (Judge Thatcher, father of Becky), and sanctions (the Duke and the Dauphin are tarred and feathered – a bit different from being censured or ordered to cease and desist). In other words, his stories sound a lot like some of the securities enforcement cases we regularly read.

A Goldfish is the Happiest Animal, A Securities Respondent is Not: Ted Lasso, SEC, FINRA, and DOL Enforcement Actions (October 2021)

December 9, 2021 Clifford E. Kirsch, Editor Leave a comment

From Brian Rubin and Ariana Cheng in this month’s column for NSCP Currents:

During the pandemic, we have had a lot of lows, as well as a few highs. And that’s just in pop culture. For example, who could forget the Tiger King? And the Queen’s Gambit? We’ve had heroes and villains and everything in between. And we’ve had a streaming show starring a knight in shining armor – well, a big mustache, an even bigger heart, and strong Southern accent – providing us with heroes, rules to live by, homespun humor and rules subject to interpretation (see, e.g., “offsides”). No, we’re not talking about securities enforcement and compliance. We’re talking about Ted Lasso, the irrepressible former football coach of the Wichita (Kansas) State Shockers, who ends up coaching the other futbol (a/k/a soccer) for AFC Richmond in England’s Premier League.

Not surprisingly, to anyone who has read our prior compliance and enforcement columns, this month’s NSCP Currents article is inspired by the ever positive, glass-always-half-full Ted Lasso to provide lessons for securities professionals, as well as lessons for the rest of use on how to live better lives. Or, as Ted would say (and, in fact, did say), “the harder you work, the luckier you get.”

Shaken, Stirred and Sanctioned: SEC, FINRA and 007 Enforcement Actions

November 10, 2021 Clifford E. Kirsch, Editor Leave a comment

If you think about it (through, say, X-ray sunglasses), James Bond movies are like securities enforcement actions: good guys, bad guys, government agencies, self-regulators (of sorts), rules, compliance officers (sometimes referred to as Dr. No), technology, money, and opening credits music. (Well, maybe not the latter.)

In this month’s enforcement update in NSCP Currents, starring Bond, James Bond, 007, British secret service agent and the hero of multiple books and 25 movies, Brian Rubin and Bria Adams review SEC and FINRA enforcement actions brought in August and September.

Compliance, Enforcement, Standard of Care

You Can’t Handle the Truth: A Few Good Enforcement Actions from the SEC and FINRA in July 2021

September 9, 2021 Clifford E. Kirsch, Editor Leave a comment

From Brian Rubin and Amanda Oliveira in this month’s column for NSCP Currents:

As this year marks the 30th anniversary of the filming of the movie A Few Good Men, we thought it would make sense to revisit that film, which involved “honor, code, loyalty,” trials, good guys, bad guys, and moral ambiguity. In other words, it involved most of the elements we regularly see in SEC and FINRA enforcement cases. And it involved one of the most iconic speeches ever to appear in a movie. (For those who haven’t seen the movie, the speech involved handling—or the inability to handle—the “truth.”)

Can you handle the truth about the SEC and FINRA enforcement actions brought in July 2021. . . Read more here.