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Trailer Fees Required Adviser to Register as Broker-Dealer

 The SEC fined an investment adviser and its two principals for failing to disclose compensation received for recommending a third-party investment fund and for not registering as a broker-dealer.  The adviser received a 1.25% up-front payment and trailing fee from the manager of a private fund that the respondents recommended.  The adviser did disclose that it would receive compensation but did not disclose the conflict of interest resulting because the fees received exceeded its customary 1.00% asset management fee, thereby creating a financial incentive to recommend the fund.  Because the compensation was transaction-based, the respondent was required to register as a broker-dealer, and the principals needed to obtain their relevant securities licenses.

The interesting twist here is that the SEC doesn’t really describe why the compensation should be characterized as transaction-based, triggering broker-dealer registration, rather than permissible asset-based compensation.  Instead, the SEC relies more on the source of the compensation (e.g. the product sponsor) rather than a direct fee charged to the client.  Could the firm have avoided the broker-dealer registration charges if it assessed the 1.25% fee on the client rather than collect it as revenue sharing from the product sponsor?  This may be an economic distinction without a difference, but the SEC will view it through a different regulatory lens.