Red Hot SEC Exam Topics

IA Watch presented a webinar: Red Hot SEC Exams Topics in 2017, Plus Exam-Prep Steps from Peers Who’ve Survived Recent Exams.

The presenters were

Fred Shaw, Principal/Director of Compliance, Hamilton Lane
Adam Reback, CCO, J. Goldman & Co
Chuck Daly, Principal, Constellation Advisers
Michelle Martin, CCO, Longfellow Investment Management

These are my notes:

Even though there is great deal of change in Was, exams are expected to continue.

Based on the 2017 Exam Priorities, there seems to be an emphasis on retail investors and how advisers deal with this type of client. There will be heightened focus on seniors and the possibility of exploitation.

There is an emphasis on data for exams. Word is that the SEC is grabbing lots more than in the past to test firm practices.

One presenter is seeing an uptick on never-before-examined advisor exams. The presenter noted that different regional offices are doing these exams differently.

Money market funds are expected to be a priority based on the 2014 rules on liquidity and redemption risks.

There seems to be less emphasis on private funds. That does not mean that there will be none.

Exams are generally shorter than in the past. OCIE wants to reach more firms, given the resources, that means less time on exams. The panelist is seeing fewer on-site exams and more correspondence exams. The examiners are asking for fewer documents, in part because the request is better tailored to the advisor. Of course, there is a wide range of exam experiences.

In exam tips and experiences, one presenter noted that it was worth discussing document requests with the examiner if the request is voluminous. The examiners are unlikely to want a big data damp and are generally not expecting it.

Some of the requested items may not be for the examiners, but for others behind the scene for data and policy considerations.

Introductory presentations are very helpful.

Valuations need to be well documented. If you use the data, you need a copy of the report in the file.

 

 

Privcap – Game Change Real Estate 2016

What better way to spend November 2 than in Chicago with the enthusiasm of the Cubs winning game 6 the night before the conference and the historic World Series win that night. I was in the windy city for Privcap Game Change conference for real estate in 2016.

privcap

The conference was largely focused on real estate industry trends and markets. That is outside of my expertise and are topics that I do not address in my stories. I’m sharing a few of those notes, but I don’t necessarily endorse them and my firm does not necessarily endorse them.

I spoke on a panel on GP Operations in the Age of SEC Compliance. We repeated the session twice for rotating breakout sessions. There was quite a lot of discussion about the pros and cons of registering with the SEC as an investment adviser. One attendee earlier in the day remembered a time in the 1980s when an SEC office kicked out the real estate advisers from registration. Investors had asked them to register. The SEC told them not to.

That is the driving force for real estate fund managers to register today: investor expectations. Real estate funds are in a gray area of the registration requirement. Congress used a odd definition to define “private funds.” There appear to be fund managers getting advice letters from their law firms that they are not subject to registration.

There was a lot of talk about the fee cases being brought by the SEC against fund managers. I pointed out that those cases are independent of registration. The SEC cases are based on the anti-fraud provisions (section 206) that are not limited to registered investment advisers.

The opening session of the conference was peering into the crystal ball and prognosticating on the near future for real estate. Is a recession coming? How defensive should your investing be? The last real estate slump was caused by debt run amok and before that oversupply. Fundamentals are still pretty good in most sectors and most markets. Low interests have a big effect and there is uncertainty about when and how quickly interest rates may rise. Our current stage of global central bank policy is in uncharted territory: long period of low interest rates, negative interest rates, running out of debt to buy.

The second session focused on changes to the industrial sector, in particular the light industrial sector with the Fourth Industrial Revolution.

The First Industrial Revolution used water and steam power to mechanize production. The Second used electric power to create mass production. The Third used electronics and information technology to automate production. Now a Fourth Industrial Revolution is building on the Third, the digital revolution that has been occurring since the middle of the last century. It is characterized by a fusion of technologies that is blurring the lines between the physical, digital, and biological spheres.

One focus is the “last mile” of e-commerce. These are new users in the space. They need more light industrial space than bricks and mortar retailers. Faster delivery times means more e-commerce facilities close to more population centers. The facilities have much more automation than traditional warehouses.

The third panel focused on what private real estate investment managers can learn from public market REITs. They do have a correlation with the broader market trends. That may change now that REITs have been split off from the financial sector to their own sector. REITs have more volatility than private real estate in part because the private side marks values only quarterly.

A session on LP-GP relations noted that real estate allocations were down in 2015. The biggest fund managers are taking the bulk of the allocations. Some things that are “no-go” from an LP’s perspective are the lack of key man provisions, devotion of time and deal-by-deal waterfalls. Look at other relationships with LPs to see if it an inducement to take other actions that may not be beneficial to the main fund.

An Update from the SEC #CFOandCOO

I’m attending the PERE CFOs & CCOs Forum. These are my notes from the session.

PERE

Bruce Karpati interviewed Igor Rozenblit, Co-head of the Private Fund Unit at OCIE, Securities and Exchange Commission. Of course, Igor’s views are his own and do not necessarily reflect the views of the SEC or the Commissioners.

Prior, when Bruce was at the SEC he interviewed Igor and hired him to join the SEC.

Igor’s group audits industry participants. A different group is responsible for making regulations and the enforcement unit is responsible for enforcement. Igor helps to train examiners so they know the difference between property management and fund management.

Real estate is a small portion of the SEC’s oversight. Hedge funds and private equity funds and managers are more numerous than real estate. They see more complexity and more conflicts with real estate managers.

They just completed a real estate initiatives focused on value-add and opportunity funds. It is still continuing. Some of the concerns.

Undisclosed related party vendors is the first. He mentioned spinoffs of managers units and then having the manager engage that unit as a fund expense.

Partially disclosed is next. The manager discloses the relationship, but not the full scope of expenses.

Market-rate. He has not had an exam where the market rate was supported. They have found managers with counter-support. The manager charges less to third-parties than to the fund. He offered no specific way to prove market rate to the satisfaction of the SEC. His recommendation was third-party market surveys.

Chargebacks should have three components. First is clarity about what is charged to the fund. The SEC views ambiguity against the fund manager. The default should be to the benefit of the investor.

In-house legal expenses charged to the fund are a noted problem. The fund documents typically provide for the fund pay legal expenses, but the manager to pay for personnel expenses. Igor’s position is that the in-house legal should be a manager expense unless explicitly provided in the fund documents.

The second is comprehesiveness of disclosure. It needs to be broader than just to the Advisory Board.

The third is timeliness. Disclosure after the fund closes is insufficient.

Valuation is a key focus. Real estate is the classic hard to value asset. The SEC is looking for a good process and not a single person controlling the valuation. Lots of review and approval is good in the eyes of the SEC.

One evolving area is fund managers controlling assets moving from fund to fund for distressed debt. It intertwines the manager on both sides of the transaction and has a valuation issue.

There are 500 SEC examiners focused on asset management. There is a variation among regions and among the different examiners. Igor’s Unit plays a key role in targeting managers for examination.

Onsite will vary depending on location and complexity. Typically it lasts a week. Then it continues back in the office with SEC likely asking follow-up questions and asking for more documents.

To prepare for an exam, Igor thinks you take a holistic approach and identify risks ahead of time. Make sure you are aware of them and are dealing with them.

Intangibles during the exam are key. Do not be combative. Be likable. Do not try to hide something, DO not look like you are trying to hide things.

He does not think the speed of document production is key, accuracy is more important.

Looking for fraud is what they do. The exam can turn investigative if the examiners finds problems.

How to avoid enforcement? Stealing money gets you in enforcement. Units may be looking to send a message to the industry and can use enforcement to do so.

Igor expects the CCO will quarterback the exam and the CFO will have a big role addressing the finance function.

There are few options for fixing SEC discovered conflicts in closed funds. One solution is approval of the advisory board if the fund documents allow the board to approve conflicts. Otherwise it requires changes to fund documents.

Igor noted that the Investment Advisors Act’s anti-fraud provisions have applied to fund managers regardless if they are registered. It’s just the post-Dodd-Frank registration that has given the SEC the ability to exam registered real estate fund managers and given the SEC more insight into the industry.

The use of joint ventures is a point of focus for the SEC. The SEC is concerned about potential conflicts in the relationship. IN particular if senior management of the fund manager has other business relationships with the joint venture partner.

Igor has found that outsourced compliance is not doing the robust job the SEC expects. He noted an outsourced CCO who did so for several dozen firms. Of course, the expense needs to be determined as to whether it is a fund expense or a manager expense.

Make sure you are treating your investors fairly.

Even a sophisticated investor can not detect that it is being charged more than bargained for if the investor does not have access to the information.

Why is valuation important when fund managers are not paid on unrealized gain. One is the use of higher valuations in marketing. The second is in taking a deal-by-deal promote based on the higher valuation.

Cyber risk is important for real estate fund managers. Don’t let hackers get at your stuff.

Doing Business in Europe Today #CFOandCCO

I’m attending the PERE CFOs & CCOs Forum. These are my notes from the session.

PERE

Most of the attendees are using private placement to get into Europe, with the rest split between a parallel Europe fund and reverse solicitation.

AIFMD arrangements are possible with a third-party who has the AIFMD passport. The non-EU firm acts as a subadvisor.

Reverse solicitation is grey area. It can’t be used for a large input of European investors.

Private placement regimes will terminate in 2018 and AIFMD will take over fully. Currently, using the private placement regime requires a great deal of local knowledge of the individual regulatory regimes in each country.

Setting up a new European-based manager for a parallel fund is a solution. That requires more money and more people (and that means more problems).

There is a new Luxembourg investment vehicle type called a RAIF that allows easier use of AIFMD. European investors would come in through this entity. You do not need to submit a prospectus approved. You can also use it for multiple funds. Cells under the RAIF would invest in the fund.

AIFMD has the requirements of a depositary and disclosure of renumeration. You can deal with these, but it’s difficult. The reporting is time-consuming.

The renumeration rule has three boxes. If you have your own AIFM, then you need to report pay of key personnel. If you use a third-party AIFM that subcontracts the management back to the manager, you still may need to report your key personnel. The Annex 2 Guidelines govern the compensation disclosure and variables.

The key control is to have the fund manager control the bank accounts and not allow the appointed-AIFM to control the bank accounts. The AIFM is merely an adviser it does not legal authority to act on behalf of the fund manager.

There are grey areas around the difference between a joint venture and pooled-fund. If the investor has significant control, it may not be a fund subject to AIFMD.

The view is that may take tens of million, if not hundreds of millions of AUM from Europe to justify the cost of being AIFMD compliant.

Sources:

Where Are We Now? #CFOandCOO

I’m attending the PERE CFOs & CCOs Forum. These are my notes from the session.

PERE

Operations are increasingly the difference maker in an environment of declining revenue per AUM. If we are going to be a cost center, we should be the best.

International operations takes up a disproportionate amount of time. Investing overseas has a lot of regulatory hurdles. There are some overseas markets that it is really hard to do business and meet the legal and regulatory requirements of the US. Getting overseas investors is an even bigger hurdle. Getting it right is a value-add proposition for your firm.

Most attendees rated themselves “moderate” in terms of legal/regulatory/compliance risk. A third rated themselves “ultra conservative” and small as “aggressive.”

Complexity is a cost to the bottom line to deal with those legal and regulatory burden.

Everybody in the firm is marketing firm. In a culture of compliance, you want everyone to be their own compliance officer.

Finding people to fill roles that understand the business and understand the compliance requirements is hard. Then you need really good communicators that can distill complex issues into an easy to understand package. More is not necessarily better.

There is great consternation of the unintended consequences of regulations. Private equity real estate is a tough fit for the existing SEC regulations.

Rapid-Fire, Nuts & Bolts Tips from Former Regulators Now in the Private Sector

coping with regulatory change

I’m attending a conference sponsored by IA Watch: Coping with Regulatory Change. These are my brief notes.


Luis Mejia, Partner, Perkins Coie, Washington, D.C.; Walter Ricciardi, Partner, Paul, Weiss, Rifkind, Wharton & Garrison, New York; and Bruce Karpati, Global CCO/Director, KKR, New York provided their view, now that they are on the other side.

You either (1) eliminate the conflict or (2) disclose and mitigate. The challenge is identifying all of the conflicts. Assuming you find them all, can you mitigate them all.

The panel was critical of the several private equity enforcement actions. In the KKR case, KKR fixed the problem and refunded some of the fees during the exam. So why was it an enforcement action? Do you have to self-report and cut all the checks before the exam ends.

The SEC has been inconsistent with its interpretation of the “wholesale failure” of the CCO. But in the Blackstone case, the CCO was blamed for inadequate policies and procedures.

In the Delaney case, the panel had a hard time finding how the CCO was engaged in “wholesale failure.”

How do you protect yourself? Look at the steps the CCO took in Robare case. The firm had hired an outside consultant to help them understand the requirements.

There is the October 14, 2015 speech by Andrew Donohue for the role of compliance: Remarks at NRS 30th Annual Fall Investment Adviser and Broker-Dealer Compliance Conference.

Commissioner Gallagher gave a speech that its the firm that’s responsible for compliance. The CCOs should not be subject to strict liability for a failure.

The Asset Management Unit: Reflecting and Moving Ahead

coping with regulatory change

I’m attending a conference sponsored by IA Watch: Coping with Regulatory Change. These are my brief notes.


Anthony Kelly, Assistant Director, SEC’s Asset Management Unit, shared some of the activities of this part of the Securities and Exchange Commission.

For fees, the Unit is looking mis-allocation of private equity fees and expenses and whether the fees and expenses are properly disclosed. In the Cherokee case, the Unit found the fees and expenses for the fund manager for compliance should not be charged to the funds. In the Fenway case, the Unit felt the adviser was misleading its fund investors for charging related party consulting fees. Before that was the Blackstone case for mis-allocation.

Mr. Kelly encouraged self-reporting. There is a cooperation program and cooperation credit available. Not bringing an enforcement action is “extra-ordinary.”

He emphasized that the Unit is not targeting CCOs. It will defer to the good-faith determinations of the CCOs. It will bring action if the CCO is actively involved. It will bring actions against CCOs for hindering the exam or investigation. See the Wells Fargo case. The third area is the wholesale failure of the CCO in doing the job. (However, as he points out, there are two CCO liability cases in last year.)

Conflicts is a perennial area of focus for the Unit. It’s core to the fiduciary obligations of an investment adviser.

Discover the Priorities and Perspectives of the Office of Compliance Inspections and Examinations

coping with regulatory change

I’m attending a conference sponsored by IA Watch: Coping with Regulatory Change. These are my brief notes.


Marc Wyatt, Director, SEC’s Office of Compliance Inspections and Examinations, gave his perspective on the priorities that lie ahead for OCIE. Marc Wyatt Named Director of the Office of Compliance Inspections and Examinations last week.

He emphasized that OCIE does not want to be a “gotcha” regulator. OCIE’s job is deterrence. That is why OCIE publishes its exam priorities each year. OCIE wants to empower CCOs to be able to focus limited resources on issues. It’s not that OCIE only gets to 10% of registered advisers. OCIE wants to use the exams to deter other firms from doing bad things. Exams are very much risk-based and data driven.

Cybersecurity will be on the list for a long time. Retirement accounts and senior investors will also be on the list.

OCIE tries to be incremental. For cybersecurity, the first round was mostly information gathering. The next level is more testing. He was not willing to say how many firms OCIE is visiting. He wants it be statistically significant.

The pool of registrants is growing. There were 500 new registrants last year. The SEC is trying to specialize and get the skills for the new pool of registrants (private equity, hedge funds, etc.)

OCIE feels it is getting better aligned with institutional investors. Investors are doing much more due diligence and taking a deeper dive.

The vetting process for which firms to exam is also a set of data for the exam process. Of the two out of ten firms that examined, reviewing the other eight helps OCIE understand the risks.

How to avoid getting examined? These are red flags for the risk-based analysis:

  • A big swing in AUM?
  • Changes in key personnel
  • Aberrational performance
  • Areas for better understanding (OCIE wants to better understand a time of investing style, or there is a rule in process)

How to get exam staff out once they come:

  • Be efficient on document production
  • Question the exam staff about unclear document requests
  • Get clarification if a question is unclear.
  • Don’t dump documents trying to overload examiners
  • Make sure exam staff has access to key people
  • Day One presentation with CCO, being candid about risks, highlighting key people for follow-up meetings

In response to lowering risk rating, Mr. Wyatt was not willing to share criteria that would reduce. He pointed out there is a never-before examined exam initiative.

He pointed out the out-sourced CCO risk alert. Use that to look at your in-house CCO program.

Investment Management: What’s Next on the Rulemaking Front

coping with regulatory change

I’m attending a conference sponsored by IA Watch: Coping with Regulatory Change. These are  my brief notes.


Norm Champ, Investment Management Law Lecturer at Harvard Law School and former SEC IM Division Director, New York; and Robert Plaze, Partner, Stroock & Stroock & Lavan, Washington, D.C. came ready to talk about a broad range of issues.

Form ADV proposed changes and Form PF changes. These changes are all about getting better data and better understanding risks. The comment period just closed, but re-opened for the liquidity proposal. IA-4091 and 33-9776 will continue as other rules are proposed. The SEC has identified separate accounts as an area in which the SEC has little insight.

The next question is what is the SEC going to do with this data. Can the SEC keep information confidential? What happens if the SEC has the data showing the problem but does not see it? The SEC is concerned about disclosing the positions of investors being advised by registered investment advisers.

Other rule-making under consideration:

  • Liquidity in funds has moved ahead: (33-9922).
  • Derivative use in funds is another item.
  • Transition plans for advisers.
  • Stress tests for advisers and funds.

The Fiduciary Duty is the “keystone pipeline” of the SEC. It will not be able to go far enough to make investor advocates happy and will go too far for the brokerage industry. There are too different models, investment advisor and brokerage, clashing in the area of wealth management. There is also a clash with the Department of Labor who has proposed its own rule that applies to all retirement plans. There is a calsh between the disclosure model and the strict standard model.

The panel pointed out the problem with third party compliance audits is that there is no equivalence to GAAP. Public companies are subject to audits subject to GAAP. The problem with using this model for compliance is that there are no generally accepted compliance standards or practices that would, at least in part, standardize the compliance audit practice. For settlements that require a third party compliance audit, the settlement often rejects proposed compliance consultants because they lack credentials.

The panel equated third-party compliance exams to credit rating agencies. There was little regulatory oversight, with an industry mandate, and they did bad job rating. They played a big role in the 2008 financial crisis.

FinCEN has proposed a rulemaking for AML for investment advisers. FinCEN is not receptive to comments saying there should not be checking for terrorist money use.

Transition planning will likely be tackled after derivative use. To some extent its the next step after disaster recovery plans and business continuity planning. It’s a bigger issue given the scope of different firms and business models for investment advisers.

Dodd-Frank does have a statutory mandate for stress tests of advisers and funds. Of course the question is how you stress test an adviser given that an advisers capital should affect the client’s portfolio. Assets are supposed to be held by custodians, not the adviser.

Red-Hot SEC Enforcement Priorities

coping with regulatory change

I’m attending a conference sponsored by IA Watch: Coping with Regulatory Change. These are my brief notes.


William McLucas, Mark Schonfeld and Frank ______ spoke on what is happening on the enforcement side of the Securities and Exchange Commission.

The Madoff fraud and the 2008 financial crisis are still driving forces for SEC enforcement. The SEC still feels the sting of the inquiries coming out of those two events.

The panel thought that the SEC is not willing to let cases go because of the fear that there is a missed, bigger problem. The panel also thought the SEC has taken a disproportionate blame for the 2008 financial crisis. “Why hasn’t the SEC put any bank executives in jail for crashing the economy?” Of course, because the SEC can’t bring criminal actions. The Enforcement Division is much more focused on investment management. The division works closer with OCIE in exams and uses exams for enforcement investigations.

The panel thinks what were considered minor deficiencies in the past are now blowing up into bigger enforcement actions. There is little incentive to close cases. More of the enforcement division attorneys have come from the Department of Justice. They are less afraid to go to court. The government use the threat of action to extract settlements. The SEC has much more access to data for bringing actions. The courts have given the SEC much more deference to its own interpretation of its own rules. The SEC has a broader ability to create law.

Investigation has a cost to the business beyond the direct costs of legal fees and fines. Investors are skittish. They have lots of options. Institutional investors have their own fiduciary responsibilities to their constituents. Enforcement does not always take this into account. They key is to avoid attracting enforcement during an SEC exam.

The SEC did have one of its swords taken away. The Newman decision will make it harder to bring insider trading cases. The government will need to prove the benefits in the tipping relationship. The personal benefit standard from the Dirks case has been heightened. To go after the remote tippee, the government needs to prove a benefit to the tipper, and that the remote tippee knew of the benefit. The SEC thinks is can still prove cases because its civil standard is merely “preponderance of the evidence” as opposed to the “beyond a reasonable doubt” standard in a criminal action. In end, Newman will not reduce the number of insider trading cases, but there may be more civil cases and fewer criminal cases.

CCO liability is generally only when there is a wholesale failure by the COO, at least according to the SEC staff. However, “wholesale failure” is in the eye of the beholder. The panel disagrees that the SEC is only bringing the most egregious examples. The panel thinks the SEC is dis-incentivizing CCOs from getting involved is bad situations. Obviously, a CCO stealing and trading on inside information is fair game. The panel does not think the SEC should be naming CCOs except for those situations. The SEC has gone too far. CCOs do need to worry.