Are Your Private Fund Employees Licensed?

compliance and licensing

I think many real estate fund managers and private equity fund managers may be concerned that there are some additional licensing requirements now that they are registered with the Securities and Exchange Commission as an investment adviser. If you didn’t require licensing with your current business model before Dodd-Frank you likely don’t require licensing post-Dodd Frank. Obviously there are many business models and internal compensation structures and each changes the analysis. Of course, a fund manager may have missed the licensing requirement in the first place.

David W. Blass Chief Counsel, Division of Trading and Markets U.S. Securities and Exchange Commission mentioned in a speech earlier this month that the SEC is focusing on this issue. Absent an available exemption or other relief, a person engaged in the business of effecting transactions in securities for the account of others must generally register under Section 15(a) of the Exchange Act as a broker.

A firm needs to be very focused on this issue if it is paying compensation to its employees that depends on the outcome or size of the securities transaction:  transaction-based compensation. The SEC views the receipt of transaction-based compensation is a hallmark of being a broker.

There is an “issuer exemption” in Exchange Act Rule 3a4-1 that provides a non-exclusive safe harbor under which associated persons of certain issuers can participate in the sale of an issuer’s securities in certain limited circumstances without being considered a broker. One key aspect of that rule is that the employee

Is not compensated in connection with his participation by the payment of commissions or other remuneration based either directly or indirectly on transactions in securities. Rule 3a4-1 (a)(3)

Beyond that threshold requirement, there are several other hurdles under the rule.  Blass summarizes those hurdles:

A person must satisfy one of three conditions to claim the issuer exemption from broker-dealer registration:

  • the person limits the offering and selling of the issuer’s securities only to broker-dealers and other specified types of financial institutions;
  • the person performs substantial duties for the issuer other than in connection with transactions in securities, was not a broker-dealer or an associated person of a broker-dealer within the preceding 12 months, and does not participate in selling an offering of securities for any issuer more than once every 12 months; or
  • the person limits activities to delivering written communication by means that do not involve oral solicitation by the associated person of a potential purchaser.

On the bright side, Blass indicates that the he would consider a rule providing a broker-dealer registration exemption written specifically for private fund advisers.

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Compliance Bricks and Mortar – One Heart Boston Edition

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One Heart Boston: All proceeds beyond the direct material costs, postage and applicable taxes from the sale of One Heart Boston merchandise will benefit The One Fund Boston, created to raise money to help those families most affected by the tragic events that unfolded during this year’s Boston Marathon.

These are some of the compliance-related stories that recently caught my attention.

Rep. Waters Introduces Investment Adviser Examination Improvement Act

Representative Maxine Waters (D-Cal.), along with Representative John Delaney (D-MD), again introduced legislation that would allow the SEC to charge user fees to fund examinations of investment advisers, the Investment Adviser Examination Improvement Act of 2013.  …  The proposed legislation also has the backing of a number of organizations including NASAA, which issued a supporting statement.  Nevertheless, the likelihood of action in the foreseeable future is remote.

House Panel Examines SEC Failure to Meet JOBS Act Rulemaking Deadline, Comm. Walter Says Accredited Investor Definition Is Outdated in Jim Hamilton’s World of Securities Regulation

At a hearing of the Subcommittee on Oversight and Investigations of the House Financial Services Committee examining the failure of the SEC to meet the statutorily imposed deadline for implementing Title II of the Jumpstart Our Business Startups Act (JOBS) Act, SEC Commissioner Elisse Walter testified that the Commission will move ahead to adopt final regulations implementing Title II as expeditiously as possible. This is a top priority for the SEC, she emphasized. During the hearing, Commissioner Walter said that she favors a revision to the definition of accredited investor to focus more on the amount of money a person already has invested.

Scott London Subverted Sarbanes-Oxley: Big Four Mock Audit Partner Rotation in re: The Auditors

The rest of the column goes on to explain that London seems to have subverted the intent of Sarbanes-Oxley Section 203 that requires lead engagement partner rotation off engagements to promote objectivity, independence and professional skepticism. But he’s not alone. The more I looked into this the more I realized it’s probably pretty common in the firms. After ten plus years of Sarbanes-Oxley, we’ve probably got quite a few of these roll off, roll back on partners out there. An early draft of a paper by four academics, including former PCAOB academic fellow Brian Daughtery, says almost everyone does it.

Financial Analyst Survey: “Chinese Wall? Reg FD? Never Heard of Them…” in The Corporate Counsel .net

Meanwhile, in this survey of hedge fund professionals – commissioned by Labaton Sucharow, HedgeWorld and the Hedge Fund Association – 46% said they believe that their competitors engage in illegal activity, 35% have personally felt pressure to break the rules, and 30% have witnessed misconduct in the workplace. When asked if they would blow the whistle or report the misconduct, 87% of respondents said they would report wrongdoing given the protections and incentives such as those offered by the SEC Whistleblower Program.

The First Enforcement Action Under the JOBS Act

SEC Enforcement Logo

I believe the Securities and Exchange Commission has taken its first enforcement action under the JOBS Act. The SEC announced fraud charges against a Spokane Valley, Wash., company and its owner for misleading investors with claims to raise billions of investment capital under the Jumpstart Our Business Startups (JOBS) Act and invest it exclusively in American businesses.

Every critic has some concerns about investor protections in a post-JOBS Act securities world. There has been a whirlwind of entrepreneurs and wanta-preneuers who want to take advantage of the crowdfunding rules and the removal of the ban on general solicitation for private offerings.

“The JOBS Act is intended to help small businesses raise capital, not to legalize fraud or give unscrupulous entrepreneurs a right to make false claims to fleece investors.”
– Michael S. Dicke, Associate Director in the SEC’s San Francisco Regional Office.

According to the SEC complaint, Daniel Peterson sold his USA Real Estate Fund 1 securities, raising more than $400,000 based on false and misleading statements.  According to the business plan, the fund could invest in real estate, mortgage notes and technology companies. I consider all of these to be high risk investments. But the website touts that investors won’t lose their money.

Q: How do you assure the investor that they will not lose their investment?
A: Our protection works much the same as flood insurance or earthquake or tornado insurance. We buy Financial Instruments comprised of US Government treasuries, Top Rated US and World Insurance and Reinsurance Companies (GIC and Annuity) contracts. The fund reserves the right to invest up to 5% of its assets in other Debt securities, such as but not limited to, high yield securities, foreign bonds, and money market instruments, when to do so would be considered within the strategy of the fund and in the best interest of its investors. These are the financial instruments that will provide the money to insure against loss.

I’m not quite sure how to reconcile that answer with the investment strategy.

According to the SEC complaint, the firm claimed it would offer additional securities and raise more investment capital, made possible by the Jumpstart Our Business Startups Act. Again, its not clear to me how passage of the JOBS Act would create value for the fund investors. I suppose that’s one of the reasons the SEC is making a claim against the fund for false and misleading statements.

It is clear that this is not a case of legitimate fundraising trying to take advantage of the JOBS Act before the JOBS Act regulations are put in place. If you, like me, were looking for a juicy and sordid tale instead of mere fraud you will be disappointed with the headline.

Equity crowdfunding portals are not yet legal because the regulations have not been enacted. General solicitation for Rule 506 private placements is not yet legal, because the regulations have not been enacted. Of course there are legal ways to use exemptions in these situations, but they are all pre-JOBS Act.

Anyone currently touting ways to get rich using the JOBS Act should be viewed as suspect. They are merely speculating on what the SEC may do and how entrepreneurs would take advantage of the potential new regimes.

You need to draw the distinction between entrepreneurs and wanta-preneuers.

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Don’t Overstate Assets Under Management

over inflate

I’ve said it before: Don’t overstate assets under management. You need to keep records on your calculations and be able to prove the calculations.

Umesh Tandon ran Simran Capital Management and was trying to land California Public Employees’ Retirement System (CalPERS) as a client. The problem was that CalPERS required prospective investment advisers to have at least $200 million in assets under management.

According to the SEC Order,  Tandon lied and stated that his firm met that test. In reality, the firm had only $80 million in assets under management. The Firm’s Form ADV stated that the firm had $102 million in assets under management.

Once that line was crossed, the firm used overinflated statements of assets under management when pitching other clients.

Then the SEC examiners showed up and popped the bubble. Now Tandon is barred from the securities industry and has to pay a substantial fine.

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Borrowings and Form PF

Form PF

A question popped up during a meeting of some real estate compliance folks talking about Form PF. How do you treat subsidiary mortgage borrowings? Question 12(a) asks for the dollar amount of borrowings for the fund. Two main issues came into play: write-downs and recourse.

As many real estate funds are still recovering from the 2008 financial crisis they may have some properties that are underwater. They could have debt in excess of the value of the property. If the loan obligation is isolated at a property and the recourse is limited to the subsidiary then the investment would have a negative valuation. For accounting treatment, the loan value is likely written down to the fair value of the property. That results in a zero valuation rather than a negative valuation.

When Form PF asks for the value of the borrowing should you include the full value or the written down value? Italics means there is a definition and it refers to Instruction 15.

15. May I rely on my own methodologies in responding to Form PF? How should I enter requested information?

for … borrowings where the reporting fund is the debtor, “value” means the value you report internally and to current and prospective investors;

So the value of a mortgage borrowing should be reported based on the value you report internally and to current and prospective investors. If you write down the mortgage in your annual report, then you can write down the value of the mortgage on Form PF.

That leads to the next question, which is whether to include the debt at all. Without recourse the borrowing is not a direct obligation of the fund. You could argue that the mortgage debt is not part of the “reporting fund’s borrowings.”

A private equity fund would likely not report the value of debt owed by portfolio companies unless the debt were recourse to the fund. I’m not sure that the position changes when the investment is a single real estate instead of an operating portfolio company.

There is the fallback in question 4 which allows you to explain any assumptions you made in responding to questions. You could include all of the debt and state that it includes non-recourse debt. Or take the opposite approach and exclude the non-recourse debt but explain that you excluded non-recourse debt from the answer.

A third question was how to treat debt on joint venture properties. Most seem to agree that you would only include your proportionate share of the debt. Again, you could make arguments either way.

Relying on the Fat Finger Excuse

compliance and fat fingers

David Miller was a big Apple enthusiast. He saw the growing stock price and must have been scheming of ways to make some extra cash by jumping on board Apple’s express train to riches. He saw the golden ticket when a client asked him to make a series of Apple stock purchases. Instead of following the client’s instructions to buy 1,625 shares, he could add a few zeroes and buy 1,625 thousand shares.

While Apple stock continued its stratospheric rise in price, Miller would share the profits from the “mistake” with his client. But the balloon popped and the train crashed. Apple had less than stellar quarterly numbers. The stock price decreased. Miler and his firm were sitting on a $5.3 million loss.

Needless to say the client was not happy about the unauthorized trade on his behalf, leaving the firm to take a sour bite and eat the loss. Apparently Miller’s excuse was supposed to be a “fat finger” excuse. Miller accidentally added a few zeroes. Maybe that was a good excuse. The message from client could be misread:

“AAPL . . . b 125 ok (per ½ hr)”

That excuse could have worked except Miller also placed another unauthorized trade to sell 500,000 shares of Apple stock. That makes it really difficult for Miller to claim the fat finger excuse. One mistake might get a pass, but the second shows bad intent. That bad intent got him a fine from the SEC and a criminal charge from the DOJ.
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A Strange Week

boat

Last week was a difficult week to be away from Boston on vacation. My family is usually out on Patriot’s Day Monday watching the Boston Marathon. We wander down our street and mingle with the other spectators, friends, and neighbors on Commonwealth Avenue at the start of the Newton hills.

Instead we spent the week in Charleston and Washington hearing about the events through the news, Facebook and Twitter. Some it was informative, and some was misinformed.

On sunny post-vacation Monday morning, everything feels the same in a city that felt such tragedy a week ago. That’s good.

I’m sure there are compliance angles about the story. You have to wonder what made the brothers go bad. You have to be concerned about investigation process. You have to be concerned about the abrogation of rights.

But today is really about getting back to normal.

Terror in Boston

boston

I’m watching the horror while on vacation instead of my office in Boston.

My heart goes out to all of the spectators and families who were affected by the blast. Patriot’s Day in Boston is usually a great day, starting with the Revolutionary War reenactments in the morning, a Red Sox home game, and the endurance of the marathon.

I’m also heartbroken by the runners who put in months of training, but were stopped short of the finish line. That finish line is a demarcation of salvation after making it the 26.2 miles from Hopkinton and up Heartbreak Hill. It should never be a crime scene.

Compliance Bricks and Mortar for April 12

SONY DSC

These are some of the compliance-related stories that recently caught my attention.

Ex-SEC Enforcement Chief Defends ‘Neither Admit or Deny’ Settlements by Emily Chasan is WSJ.com’s CFO Journal

“By admitting wrongdoing in the government investigations, which companies might well be prepared to do, they face a great deal of liability on the civil side and, in fact, the admissions may well be tantamount to conceding liability on the civil side,” Mr. Khuzami said. Those suits often seek damages well in excess of an SEC settlement, he said.

Hedge Fund Survey Shows Misconduct Believed to be Widespread by Bruce Carton in Compliance Week

A recent survey of hedge fund professionals indicates that misconduct is widespread in the industry, and that a very large percentage of professionals in the industry are prepared to report wrongdoing under a program such as the SEC’s new whistleblower program under Dodd-Frank.

Measuring Tone at the Top by Michael Volkov in Corruption, Crime & Compliance

The importance of tone-at-the-top is significant. A 2009 research report conducted by the National Business Ethics Survey found that in strong ethical cultures, the pressure to commit misconduct was reduced from 16 percent to 4 percent; rates of misconduct were reduced from 77 percent to 40 percent; failure to report misconduct was reduced from 44 to 27 percent.

The question then is how do you measure the internal perception of your company’s tone at the top? There are a number of possible measurements: ….

Will Compliance Officers’ New Favorite Tool Be … Google Glass? by Bruce Carton in Compliance Week

Given that Google Glass can, among many other things, allow the user to record conversations and take photos or video, Magrann-Wells says that perhaps it is time for banks to start forcing traders to strap computers on their heads if they want to reduce the risks associated with rogue traders

Stages in a Bubble by Jean-Paul Rodrigue, Dept. of Global Studies & Geography, Hofstra University

stages_bubble

New SEC Rule to Protect Investors from Identity Theft

sec-seal

The Securities and Exchange Commission adopted new rules requiring investment advisers, broker-dealers, mutual funds, and certain other entities regulated by the agency to adopt programs to detect red flags and prevent identity theft.

In 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act amended the Fair Credit reporting Act to add the SEC to the list of federal agencies that must adopt and enforce identity theft red flags rules. In February 2012, the SEC proposed for public notice and comment identity theft red flags rules and guidelines and card issuer rules. Yesterday, the SEC issued the final rule.

Originally, it looked like investment advisers (and therefore private fund managers) might escape the rule. However, the final rule explicitly includes registered investment advisers as being subject to the rule.

Investment advisers who have the ability to direct transfers or payments from accounts belonging to individuals to third parties upon the individuals’ instructions, or who act as agents on behalf of the individuals, are susceptible to the same types of risks of fraud as other financial institutions, and individuals who hold transaction accounts with these investment advisers bear the same types of risks of identity theft and loss of assets as consumers holding accounts with other financial institutions. If such an adviser does not have a program in place to verify investors’ identities and detect identity theft red flags, another individual may deceive the adviser by posing as an investor.

The SEC concluded that the red flag program of a qualified custodian that maintains custody of an investor’s assets would not adequately protect individuals holding transaction accounts with an adviser. The adviser could give an order to withdraw assets, but at the direction of an impostor. However, an adviser that has authority to withdraw money from an investor’s account solely to deduct its own advisory fees would not hold a transaction account, because the adviser would not be making the payments to third parties.

Does this apply to private funds?

Private fund managers may directly or indirectly hold transaction accounts. According to the SEC rule, if an individual invests money in a private fund, and the adviser to the fund has the authority to direct the individual’s investment proceeds (such as distributions) to third parties, then that adviser would indirectly hold a transaction account. The SEC concludes that a private fund adviser would hold a transaction account if it has the authority to direct an investor’s redemption proceeds to other persons upon instructions received from the investor.

I’m not sure that I agree with the SEC conclusion. However, I do agree that funds need to make sure that distributions are not re-directed improperly. Private fund managers will have to put some effort into this.

This rule is going to take some time to figure out how it applies in the context of fund operations. The subscription agreement and partnership agreement for a fund may not explicitly address if an investor can direct distributions to a third party account. I think that would be an unusual restriction.

The SEC-mandated program under rule should include policies and procedures designed to:

  • Identify relevant types of identity theft red flags.
  • Detect the occurrence of those red flags.
  • Respond appropriately to the detected red flags.
  • Periodically update the identity theft program.

The rules require entities to provide such things as staff training and oversight of service providers. The rules include guidelines and examples of red flags to help firms administer their programs.

The final rules will become effective 30 days after publication in the Federal Register. The compliance date for the final rules will be six months after their effective date.

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