January
7, 2020. The SEC Office of
Compliance Inspections and Examinations (OCIE) announced its examination
priorities for the new year. The commission publishes its annual report to
enhance the transparency of its examination program and to guide firms with its risk-based methodologies.
The report is designed
to addresses the potential risks to investors and to maintain the integrity of
U.S. capital markets through a look into the business practices of its
registrants.
The
following information is a summary of the full SEC Examination Priorities
report listed here: https://www.sec.gov/about/offices/ocie/national-examination-program-priorities-2020.pdf
As a part of its broad sweeping examinations, the
commission monitors the compliance programs of RIAs to determine if the firm’s
policies and procedures are reasonably “designed, implemented, and
maintained”.
In addition, the SEC requires firms to conduct a review
of policies and procedures on at least an annual basis (ref. SEC Rule 206(4)-7).
SEC staff typically assesses the compliance programs of
RIAs in one or more core areas:
(1)
suitability/appropriateness of asset class
selections & fees,
(2)
portfolio management practices (e.g. disclosure of business activities),
(3)
custody and safekeeping procedures for client assets,
(4)
best execution procedures (e.g. Rule 605/606, comparison of brokerage fees),
(5)
fees and expense summaries, and
(6)
valuation methodologies (e.g. NAV, fair value,
illiquid securities).
RIAs with Dual Registrations and/or affiliations
with Broker-Dealers
The OCIE will conduct examinations of RIAs that are “dually
registered as, or are affiliated with, broker-dealers, or otherwise have related
persons who are registered representatives of broker-dealers”.
Amongst the areas of focus will include:
(1)
best execution practices (e.g. brokerage costs),
(2)
prohibited transactions (e.g. FINRA, firm policies),
(3)
fiduciary advice/standard of care (e.g. justification for investments, see Pg. 10*), and
(4)
disclosure of conflicts/arrangements (e.g. fees,
commissions, or incentives).
RIAs who use third-party asset managers
Examiners will review its registrants that utilize the
services of third-party asset managers to oversee clients’ investments. The SEC will review the RIAs’ due diligence practices, policies, and procedures.
Moreover, the OCIE heightens the importance for
disclosures, amongst other things, of RIAs offering its clients innovative investment strategies, such as
sustainable and responsible investing, that incorporates environmental, social,
and governance (ESG) criteria.
In addition, the commission will review any other third-party
arrangements, such as referral and/or solicitor programs of its registrants.
How will the SEC examine RIA’s in 2020?
The commission will continue to conduct risk-based
examinations of RIAs that have:
(1)
Never been examined (new or old firms), and/or
(2)
Were previously examined (several years ago).
For previously examined registrants, the commission will
assess whether the firm’s compliance programs are updated for changes in its
business model and/or overall growth.
Not coincidentally, our firm witnessed an uptick in the
number of streamlined SEC examinations in the last part of 2019. Most of these streamlined exams required firms
to send documentation into an SEC Secure portal as opposed to a lengthy full
scope exam that typically includes an office visit.
RIA’s who are Robo (“internet only”) Advisors
The
commission will also focus on RIAs that provide services to their clients
through automated platforms, also known as “robo-advisers.”
Areas
of exam focus include, among others:
(1)
SEC registration eligibility (e.g. internet only status, doesn’t exceed 15 other
clients**),
(2)
cybersecurity policies and procedures,
(3)
marketing/advertising practices,
(4)
fiduciary duty practices, including adequacy of disclosures, and
(5)
overall effectiveness of compliance programs.
**An
internet only advisor provides advice exclusively through an interactive
website. To maintain “internet only”
status, firms may provide non-internet/other investment
advice to fewer than 15 clients during the preceding twelve months. Ref. Internet adviser relying on SEC Rule
203A-2(e).
RIAs and Private Funds
OCIE staff will examine private fund advisors (“RIAs to private
funds”) that provide management to separately managed accounts alongside
private funds.
Moreover, OCIE will review RIAs to private funds to
assess compliance risks, including:
(1)
controls to prevent the misuse of material non-public information, and
(2)
conflicts of interest, (e.g. disclosures of fees and expenses, and the use of third
parties).
Private
funds are typically managed in a combination of: (1) registered investment
advisors, (2) registered investment companies, and/or (3) exempt reporting
advisors.
SEC Guidance and Risk Alerts released in 2019
The SEC published eight reports that included the
following:
(1)
Investment Adviser Compliance Issues Related to the Cash Solicitation Rule;
(2)
Risk-Based Examination Initiatives Focused on Registered Investment Companies;
(3)
Observations from Investment Adviser Examinations Relating to Electronic
Messaging;
(4)
Transfer Agent Safeguarding of Funds and Securities;
(5)
Investment Adviser and Broker-Dealer Compliance Issues Related to Regulation
S-P—(6) Privacy Notices and Safeguard Policies;
(7)
Safeguarding Customer Records and Information in Network Storage—Use of
Third-Party Security Features;
(8)
Observations from Examinations of Investment Advisers: Compliance, Supervision,
and (9) Disclosure of Conflicts of Interest; and
(10)
Investment Adviser Principal and Agency Cross Trading Compliance Issues.
The reports are available on the SEC’s public website.
Other takeaways from this examination report
(1) RIA examinations are
largely risk-based,
(2) OCIE staff examined approximately
15% of all firms in 2019,
(2) Form CRS/Reg B-I
disclosure forms are required for RIAs and Broker-Dealers by 6/30,
(3) Asset class
selection violations can bring an SEC enforcement case (e.g. fines),
(4)
The number of SEC firms increased from approximately 11,500 to 13,475 over the
last five years.
Other Regulatory issues discussed in this
report
Please review the examinations report for information on:
Digital
Assets
Broker-Dealers
AML
Programs (for Broker-dealers and investment companies)
FINRA
and MSRB
Clearing
Agencies,
And
More
RIA Registration Services: New/existing firms.
RIA Compliance Consulting: Ongoing/annual services.
Compliance Management System: Online portal.
Business Management System: Online portal.
Advisor Transition Support: RIA Matchmaking/continuity services.
Business/Referral Network: Inquire about advertising/consulting projects.
Our Approach
Compliance Management - We work with companies who are seeking to manage their compliance obligations - serving more than 175+ firms with compliance services and a system of SEC and state regulatory resources located on one site.
Business Management - We provide firms with task-management processes and a business directory to connect with other firms for continuity, succession planning, partnerships, and deal flow. Also, we have a small network of referral partners for practice management, operations workflows, accounting, and website design.
Needs Analysis Workflow - We work with firms in determining their compliance management priorities. During/after a need’s analysis, we provide firms with compliance/business service options to address those needs and will provide firms with sample workflows for task delegation purposes.
Audit Preparation - We help firms in addressing compliance deficiencies while acting as an intermediary for resolving issues between (you) the advisor and regulators/examiners. We can also assist firms in audit prep measures.
Regulatory Changes - We research regulatory updates from state, SEC, and/or FINRA jurisdictions. We’re here to help as some rules/regulations may be amended over time.
About FIN Compliance
FIN Compliance (FinCompliance.io) is a consortium of compliance, consulting, and business management solutions designed to help boutique investment firms to structure, maintain, and develop their internal regulatory review programs.
Our product line consists of: RIA Consults-Roberson Consults Group, a compliance consulting firm, RIA Review, a compliance-management system, B-D Review, a Hybrid-management system (est. in 2020)*, and FIN Lancer, a Business/Task Management system.
Impact/Missions
FIN Missions (FINmissions.com) provides business/vision support group sessions for other entrepreneurs and youth mentoring. In addition, Cory has volunteered for more than fifteen youth programs in locations such as like S. Korea, China, S. Africa, Thailand, and India.
Contact: Cory Roberson - Cory@RIAconsults.com
Contact: Cory Roberson - Cory@RIAconsults.com
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