SEC IA Examination Observations

On Jul. 23, SEC issued risk alert on observations from IA exams.

  • Observations from examinations of investment advisers (IAs), covering areas of disciplinary histories, compliance program, supervision, conflicts of interest disclosure.
  • Key takeaway: IAs should analyze risks of hiring supervised persons (SPs), who have disciplinary histories, and adopt policies and procedures to address those risks.

Disciplinary Histories

  • Gaps in oversight of SPs having disciplinary histories by failing to disclose disciplinary events or histories to clients, often relying on SP self-reporting that made disclosure.
  • If disclosure made was late, incomplete, confusing, misleading; or failed to update.
  • Many IAs did not adopt or implement compliance policies and procedures addressing risks associated with hiring and employing individuals with prior disciplinary histories.

Compliance and Supervision

  • Failed to adequately supervise, set appropriate standards of business conduct for SPs.
  • Did not sufficiently document SP responsibilities or outline the expectations of them.
  • Many IAs could not confirm SPs identified in procedures as responsible for performing certain compliance functions were actually executing the duties as prescribed therein.
  • Duties included key regulatory, business functions for IAs managing investor assets.
  • Some policies, procedures inconsistent with actual business practices or disclosures.
  • Areas with most frequent inconsistencies involved commissions, fees, and expenses.
  • Annual compliance review not documented adequately, not assess risk areas for firm.

Disclosure of Conflicts of Interest

  • Undisclosed compensation arrangements, which resulted in conflicts of interests.
  • For example, not disclosing forgivable loans were made to IA or their SPs contingent upon certain client-based incentives, that may unduly influenced decision-making.
  • Also, resulted in higher fees and expenses for the affected clients, or in some both.

Improving Compliance

  • Adopt written policies and procedures that specifically address what must occur prior to hiring supervised persons that have reported to the adviser disciplinary events.
  • Enhanced due diligence practices associated with hiring SPs to identify disciplinary.
  • Heightened supervision practices when overseeing SPs who have certain histories.
  • Adopt written policies and procedures addressing client complaints related to SPs.
  • Oversight of persons operating out of remote offices in compliance and supervisory.