I was able to attend the Boston stop on the SEC’s Compliance Outreach Program.
Michael Garrity, the Associate Director of the Boston Examination Program kicked off the program, by highlighting some examination statistics. There are 1200 registered adviser in the Boston region. But there are only 50 examiners. Last year, they had 80 exams. They are clearly taking a risk-based approach to examinations because the resources are so limited. They are getting increased data and are working on finding the signal through all the noise.
The first panel focused on examination priorities and risks.
The selection process is one involving qualitative and quantitative review. The SEC uses the Form ADV information, third-party data providers, and media stories, among other sources to select firms for examination. These are some of the red flags that may make an exam more likely:
- Firms in the media
- Firms with new product lines / closed product lines
- Management changeover
- New fee arrangements
- Decentralized firms or odd structures
- Use of riskier service providers
In a post-Madoff world, the SEC takes Tips, Complaints, and Referrals as the top indicators for examination. The biggest red flag is when someone takes the time to the tell the SEC that a firm is doing something wrong.
The SEC is trying to be transparent in examination priorities. The 2013 SEC Examination Priorities clearly lay out what the SEC is most likely to focus upon. The exam staff expects to update the exam priorities each year.
The panel made it clear that the Form ADV is used in selecting firms for examination. However, they seemed to indicate that the exam staff has not quite figured out how to deal with all of the information in Form PF. Examiners will use the information in Form PF as part of the examination. But its seems that the data is not yet an integral part of the selection criteria.
Valuation was the number one topic for examination when it comes to funds. It affects performance marketing and fee generation. The examiners are not going to second-guess assumptions, but do want to see a robust process. Although an examiner will not second-guess assumption, an examiner may look at other market data to see if it distinctly contradicts the assumptions used.
In particular, an examiner will note if valuations are “being tweaked when new funds are raised”. The panel referred to the Oppenheimer case where there was distinct change in the valuation process with no justification or disclosure. The panel also referenced the Morgan Keegan case where there was distinct hanky-panky during the valuation process.
The examiners want to see if the written polices and procedures are effective. They want to make sure that marketing pressure does not affect valuations. The exam staff is looking for ad hoc changes.
Social media is hot topic for examination. The panel pointed to last year’s risk alert on investment adviser use of social media. The use of social media is clearly subject to the anti-fraud rule. Most of it will also be subject to the advertising rule. The exam will focus on social media if the adviser uses social media to target clients and potential clients, not for personal or non-business use.
Safety and security of client assets is another hot topic for examinations. Based on the recent risk alert, the SEC is not happy with compliance under the custody rule. Many advisers fail to understand that they have custody.
A new issue is the application of the identity theft rules under the FRCA. Dodd-Frank made the Red Flags Rule applicable to the SEC. Regulation SID will have a November compliance deadline.
The second panel was on the current topics in money management regulation.
The first line of discussion was who would show up at an examination. In the Boston office, it is now common to have a member of enforcement take part in an examination. However, this is for educational purposes, not because of the likelihood to bring an action. With the massive inflow of hedge funds, private equity funds, and real estate funds, the SEC is trying to develop expertise in these types of advisers. The Boston office also has staff intern in different divisions. So an examination person will work for six months in enforcement and an enforcement person will work for six months on exams.
The number one reason for an enforcement action is failing to fix problems that you say you will fix. The SEC is now routinely making follow-up returns to see if a firm has made the changes mandated in the deficiency letter.
The panel downplayed the enforcement actions against compliance staff. The cases against compliance officers are for egregious failures.
Expenses bubbled up as a hot topic. Examiners will look closely at expenses billed to investors. The examiners want to know that these expenses are clearly disclosed to investors. For funds that means the PPM and Partnership Agreement. The examiners said they want to see written expense policies and to see them tested.
The SEC examiner strongly suggested that registrants prepare a risk matrix. One advisor thought this was providing a blueprint for the SEC to conduct their audit. They want to see a catalog of risks, status, rating and worst case impact for the risk.
The panel listed a few things that make an enforcement action more likely:
- Misappropration of funds
- Investor harm
- Failure to respond to exam staff
- Providing false information to staff
The panel raised the current hot topic of Broker-dealer registration for internal marketing personnel at private fund managers. The panel noted the David Blass speech on private funds and broker-dealer registration.
The third panel focused on the examination process.
There are four types of exams:
- Risk priority exam
- Cause exam
- Sweep exam
- Presence exams for new registrants.
The presence exam program started 10/12 and is expected to end in the fall of 2014. The SEC plans on compiling findings from these exams and releasing that compilation or risk alert to all registered advisors. The presence exams are short – less than a week. The focus is on the five areas in the October welcome letter: Marketing, Conflict of interest, Safety of client asset, Portfolio Management, and Valuation.
They also mentioned a fifth type of exam: corrective action review. This a follow-up after an “exam summary letter” (nee’ deficiency letter) and focuses on whether the firm fixed the deficiencies they said they would in the letter.
It is the SEC’s policy to not disclose the type of exam during the examination process.
As for the process, it usually starts with a phone call to let you know they are coming. The notice could be from none to two weeks. Typically it will be one week’s notice. Can you postpone the field date? Almost never. (One participant told me that the SEC came on the date of his annual investor meeting and would not move the date.)
The examiners will interview senior staff. The CCO can be present for all interviews.
The panel paid a lot of attention on annual reviews. After all, it is required by the SEC rules. They expect the following to be addressed in the annual review:
- Review and document compliance issues for the year
- Review change in business activities
- Note Regulatory changes
- Changes in key personnel
It’s okay to outsource the annual review.
Identify risks and either (1) change the policies and procedures, (2) test, and/or (3) mitigate.
Use the annual review as an opportunity to highlight your resources and all of the good things you have done over the past year.
At the end of the exam you will get a letter to know its over. The letter will be either a summary letter or a no further action letter.
As you can tell from my notes, this was a great program for compliance officers.