Now that we are in mid-January, a few things are evident. We have likely broken one or more New Year’s resolutions, the effect of any rest over the holidays has worn off and we need to complete our annual compliance reviews for 2019 and firm up our 2020 plans.
While I don’t have solid advice on the first two points, looking back at the lessons of 2019 can help us as we complete our annual review and look ahead.
Lesson 1: Protect the Retail Investor
Since assuming the role of SEC Chair in 2017, Jay Clayton has stressed the importance of protecting the retail investor. The SEC commissioners and staff have been clear and consistent in this message through rulemaking, guidance and examinations. Examples include:
- In their 2019 Examination Priorities release, the Office of Compliance Inspections and Examinations (OCIE) of the SEC stressed the importance of protecting the retail investor, including those saving for retirement.
- On June 5, the SEC adopted a fiduciary rulemaking package. Included in that package was Regulation Best Interest (Reg BI) for broker-dealers, which raises the standard of care for a broker-dealer to act in the client’s best interest. In conjunction with this, the SEC also adopted a requirement for broker-dealers and investment advisers to provide their retail customers with a “Relationship Summary” on new Form CRS. This form will need to be filed by June 30, 2020. Also included was the Commission Interpretation Regarding Standard of Conduct for Investment Advisers (Interpretation), which is discussed below, and the Commission Interpretation Regarding the Solely Incidental Prong of the Broker-Dealer Exclusion from the Definition of Investment Adviser.
Lesson 2: Disclose, Disclose and Disclose Some More
Clear and accurate disclosure is at the heart of a productive client relationship. One area of focus for the SEC in 2019 was around the use of the word “may” in client disclosures. The SEC staff has stated that an adviser should not say that it “may” do something when it will always do that thing or can articulate the circumstances under which it will do that thing. In the Interpretation, the SEC stated that disclosing that an adviser “may” have a particular conflict is not adequate when the conflict actually exists.
Further, the failure to disclose fully conflicts through the use of the words “may” or “could” was reflected in several enforcement actions. In October, the staff built on the Interpretation with a frequently asked questions (FAQ) release regarding disclosure of investment adviser compensation. In the FAQ, the staff addressed topics relating to revenue sharing and other compensation arrangements, the conflicts presented and the expected disclosures to clients.
We also note that Reg BI states that a broker-dealer’s obligation to act in its client’s best interest includes a disclosure obligation. This obligation requires a broker-dealer to provide certain prescribed disclosures before or at the time of the recommendations, about the recommendation and the relationship between the retail customer and the broker-dealer. Such disclosures must address all material facts relating to the scope and terms of the relationship with the retail customer, including capacity as a broker-dealer, material fees and costs, and type and scope of services.
Lesson 3: Compliance Never Sleeps
For seasoned compliance professionals, this may not be a new lesson, but the pace of regulatory activity in 2019 had most of us gasping for air. In 2019:
- Mutual funds fully implemented the liquidity risk management rules
- As noted above, the SEC adopted the fiduciary rulemaking package
- The SEC issued guidance for advisers with respect to proxy voting
- The SEC proposed new advertising rules
- New derivatives rules were proposed for mutual funds
- FINRA announced a reorganization of its exam function
- Many advisers began preparations for the California Consumer Privacy Act, effective January 1, 2020
- Cybersecurity continues to be a major concern for us all.
SEC Chair Clayton has indicated a desire to meet the targets set forth in the Commission’s rulemaking agenda, giving us a realistic look at what’s ahead. For compliance teams, applying the lessons of 2019 will help us meet our obligations as we move into the new decade
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