The SEC’ Division of Investment Management issued new guidance to reminds firms to comply with conditions and representations in exemptive orders. The guidance suggests that firms “adopt and implement policies and procedures reasonably designed to ensure ongoing compliance with each representation and condition in any such order.”
The guidance was triggered by June 2011 report from the SEC’s Office of Inspector General which noted noncompliance with exemptive order requirements and no-action letters. Besides this guidance, the Office of Compliance Inspections and Examinations’ 2013 examination priorities listed compliance with exemptive orders as an examination priority.
The SEC may allow a firm to engage in transactions that would otherwise be prohibited by securities laws by means of an exemptive orders. In order to receive this exemptive relief, a firm will make certain representations in its application and may agree to comply with certain conditions.
Based on its review of a sample of OCIE examination reports, the OIG determined in its 2011 report that many firms failed to comply with the representations and conditions of SEC exemptive orders and no-action letters they have received.
The OIG report found that the SEC divisions that issue relief do not have a process for confirming whether firms subsequently comply.
It’s a simple problem found in many organizations. One part of the SEC issues the exemptive relief and another conducts the inspections. The one conducting the inspections is probably not aware of the exemptive order or the need to comply with the provisions. It sounds like that is starting to change.
The OIG report made five recommendations intended to enhance the SEC’s oversight of exemptive order compliance.
(1) The Divisions of Investment Management, Trading and Markets, and Corporation Finance should develop processes for coordinating with OCIE regarding reviewing for compliance with conditions and representations in exemptive orders and no-action letters issued to regulated entities on a risk basis;
(2) The Divisions of Investment Management, Trading and Markets, and Corporation Finance, in coordination with the Office of Information Technology and OCIE, should develop and implement processes to consolidate, track, and analyze information regarding exemptive orders and no-action letters;
(3) The Divisions of Investment Management and Trading and Markets should, in their plans for implementing the Dodd-Frank Wall Street Reform and Consumer Protection Act requirement that they establish their own examination staffs, develop procedures to coordinate their examinations with OCIE and include provisions to review for compliance with conditions and representations in exemptive orders and no-action letters on a risk basis;
(4) The Divisions of Investment Management and Trading and Markets should include compliance with the conditions and representations in significant exemptive orders and/or no-action letters issued to regulated entities as risk considerations in connection with their monitoring efforts; and
(5) OCIE should include compliance with conditions and representation in significant exemptive orders and no-action letters issued to regulated entities as risk considerations in connection with its compliance efforts.
Although the 2011 OIG report also include no-action letter, this 2013 guidance only mentions exemptive orders.