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The Friday List: 2020 Examination Priorities

Today, we offer our “Friday List,” an occasional feature summarizing a topic significant to investment management professionals interested in regulatory issues.  Our Friday Lists are an expanded “Our Take” on a particular subject, offering our unique (and sometimes controversial) perspective on an industry topic.

Both FINRA and the SEC OCIE staff recently released their 2020 examination priorities.  Today’s list summarizes their 10 most significant concerns for investment managers and broker-dealers.   New areas this year include Regulation Best Interest, digital assets and cash sweep programs. Some longtime favorites include anti-money laundering, best execution, and retail sales practices.  Compli-pros should use these letters to prepare their compliance programs and exam readiness.

10 Most Significant 2020 Examination Priorities

  1. Compliance programs. OCIE’s overriding concern is assessing whether compliance is actively engaged in firm operations and whether the CCO is knowledgeable and empowered.  FINRA wants firms to evaluate the “state of their compliance, supervisory and risk management programs.”
  2. Regulation Best Interest. Both OCIE and FINRA warn firms to implement new procedures and processes to comply with Regulation Best Interest, including Form CRS, and related interpretations.
  3. Retail Sales Practices. OCIE wants firms to re-consider disclosure, sales practices and conflicts of interest when advising retail clients.  FINRA adds supervision and focuses on certain products such as private placements and variable annuities.
  4. Revenue Sharing. The regulators have serious reservations about advisers who have a financial interest in the products they recommend.
  5. Information Security. Firms need to assess systems, technology governance, and testing to ensure the protection of clients’ personal information.
  6. Trading Practices. FINRA will target market manipulation practices, mark-ups/mark-downs, short sales, short tenders, and TRACE reporting.
  7. Digital Assets. OCIE worries that firms may not understand the differences between digital assets and more traditional products.  The examination staff will review suitability, trading, custody, valuation, and supervision.
  8. Anti-Money Laundering. Both regulators expressed concerns about how broker-dealers comply with their anti-money laundering obligations.
  9. Cash Sweep. FINRA wants firms to consider how they communicate features and options and how the programs operate.
  10. Best Execution. Always a perennial favorite, FINRA will focus on routing decisions, odd-lots, and options.

FINRA Plans Review of Regulation BI Compliance Among Other Examination Priorities

 FINRA plans to examine firm compliance with new Regulation Best Interest, Form CRS and related SEC guidance and interpretations during the upcoming year, according to its 2020 Risk Monitoring and Examination Priorities Letter.  FINRA will review whether firms have implemented procedures and training, whether their reps observe the best interest standard of care, how the firm guards against excessive trading, and the extent to which firms identify and address conflicts of interest.  Other significant priorities include sales practices and supervision (especially complex products, variable annuities, private placements, mark-ups/downs, and senior investors), trading authorization, best execution, TRACE reporting, and cybersecurity.

It is notable that FINRA intends to prioritize Regulation BI in the first year.  Usually, the regulators give some time for firms to put operations in place before conducting regulatory sweeps for compliance with new laws and regulations.      

Barred Adviser Lied to Investors about Track Record, Credentials and Performance

 

The SEC has commenced proceedings against a barred investment adviser for fraudulent statements made during a note offering.  The SEC alleges that the respondents concealed a barred adviser’s disciplinary history and industry bars by entering into a bogus operating agreement showing a 5% ownership interest when he had a 50% stake.  The other partner to the venture had little to no securities experience.  The SEC accuses the respondents of lying to investors to induce them to purchase promissory notes with their self-directed IRA accounts.  The respondents allegedly lied about performance, safety, track record, and credentials.

This is exactly why the industry needs an active regulator.  Only by ridding the industry of (alleged) liars and thieves like this can the investment industry instill confidence in the regulators, the clients, and the lawmakers.  Ultimately, strong regulation facilitates growth as evidenced by the $20 Trillion in assets in registered funds and ETFs, the most regulated investment products on the planet. 

CFP Task Force Calls for Significant Enforcement and Governance Reform

 

The Independent Task Force on Enforcement created by the Certified Financial Planner Board of Standards has issued a report that heavily criticizes the CFP’s enforcement program and related governance structure.  The Task Force concludes that the CFP Board’s enforcement program is “not reasonably designed to ensure CFP certificants are held to an appropriate level of compliance.”  The Task Force recommends that the CFP retain a dedicated Director of Enforcement, increase resources devoted to enforcement, undertake periodic audits, and enforce penalties.  The Task Force also recommends several governance reforms. The CFP Board commissioned the Task Force to address gaps between public expectations and the actual operations of the enforcement program.

 

We laud the CFP Board for commissioning this Task Force to issue a public report this critical.  However, this Report will cause big problems for the CFP Board and the industry.  The CFP Board must take action to create a credible enforcement program or risk a diminution of its public perception.  The industry can now expect the involvement of yet another supervisory body that can conduct audits and impose penalties.    

FINRA Releases Exam Findings

 

FINRA has released its 2019 Report on Examination Findings and Observations, offering insight on enforcement cases and risk management concerns.  FINRA provides a long list of examination and enforcement findings including negligent practices related to (i) supervision (failure to amend WSPs for new or amended rules, weak branch office inspections); (ii) suitability (product exchanges, churning); (iii) digital communications (failure to stop individual texting, electronic sales seminars); (iv) anti-money laundering (inadequate transaction monitoring, overreliance on clearing firms); (v) UTMA/UGMA (know your customer); (vi) cybersecurity; (vii) business continuity plans; (viii) fixed income mark-ups; (ix) best execution; (x) market access; (xi) short sales; (xii) liquidity risk management; (xiii) segregation of client assets; and (xiv) net capital.  A senior FINRA official explained the purpose of the Report: “We hope firms find the Exam Findings and Observations Report useful in strengthening their own control environments and addressing potential deficiencies before their next exam.”

The Exam Report is more useful than the annual Exam Priorities letter because it reflects actual cases and findings rather than a regulatory wish list.  We recommend that all compli-pros establish an internal working group to address the issues raised in the Report.

CFTC Announces 2019 Examination Priorities

The Compliance Branch of the Division of Market Oversight (DMO) of the Commodity Futures Trading Commission (CFTC) for the first time announced its annual examination priorities for contract markets and swap execution facilities.  The DMO will prioritize the following areas in 2019: cryptocurrency, disruptive trading, trading practices, block trades, markets, market makers and trading incentive programs, and relationships with service providers.  The DMO expects that most of its regulated entities will undergo at least one examination in 2019.  The CFTC expects that the DMO will announce examination priorities every year in order to enhance industry communication, prioritize risk-based areas of concern, pursue continuous improvement, and create efficiencies.

Expect the NFA to follow the DMO’s lead with respect to the announced priorities as well as the areas required in the Self-Examination Questionnaire.

FINRA Examination Priorities Letter Focuses on RegTech and Digital Assets

FINRA released its 2019 Examination Priorities Letter, spotlighting new areas including online distribution platforms and fintech, regulatory technology, digital assets, and fundraising for outside business activities.  FINRA will closely scrutinize member firms’ participation with online securities distribution platforms and whether firms are aiding the unlawful distribution of unregistered securities by handling customer accounts and/or receiving transaction-based compensation.  When using regulatory technology tools, firms will be asked how they supervise third party vendors and how they protect customer information.  FINRA will work with the SEC to ensure that member firms implement adequate controls and supervision when engaging with digital asset offerings through marketing, clearing, and recordkeeping activities.  FINRA continues its focus on outside business activities with a special emphasis on fundraising for personal benefit.  FINRA also makes clear that it will continue to review firms for compliance with longstanding priorities including suitability, fund share classes, private placements, communications, AML, cybersecurity, senior investors, best execution, and supervision. 

Compli-pros should read this Examination Priorities Letter together with the recently released Examinations Findings to create an inventory of compliance risks that the firm should immediately address through gap analysis and enhanced procedures.  Our experience is that the FINRA examiners hew closely to the announced priorities. 

The Friday List: Top 10 OCIE Priorities for 2019

Today, we offer our “Friday List,” an occasional feature summarizing a topic significant to investment management professionals interested in regulatory issues.  Our Friday Lists are an expanded “Our Take” on a particular subject, offering our unique (and sometimes controversial) perspective on an industry topic.

Christmas came early this year as the SEC’s Office of Compliance Inspections and Examinations (OCIE) released its 2019 priorities, which in prior years came out in January or February.  OCIE has expanded its activities under the new Administration, boasting that it completed over 3,150 exams during the past year.  OCIE increased investment company exams by 45% and reviewed 17% of investment advisers, making good on its prior commitment to double adviser exams.  The Exam Priorities letter is long (12 single space pages) and covers many topics.  To help synthesize the data, we offer the Top 10 OCIE Priorities for 2019:

 

Top 10 OCIE Priorities for 2019

  1. Fees and Expenses:  OCIE will review disclosure and calculation of fees charged to clients.
  2. Portfolio Management: The staff will scrutinize how firms allocate investment opportunities and whether assets are managed according to stated investment objectives.
  3. New Advisers: OCIE continues to focus on never-before examined advisers and advisers that have not been examined in many years.
  4. Mutual Fund Share Classes:  The SEC will focus on which mutual fund share classes are recommended and whether reps have a financial incentive.
  5. Wrap Fee Programs: Firms must monitor wrap programs to make certain that the bundled fee is the best deal for clients.
  6. Affiliated Products/Services:  OCIE will examine the use of affiliated services or products for undisclosed conflicts of interest.
  7. Senior Investors:  The regulators are concerned about unsuitable recommendations to senior investors and supervision of reps.
  8. ETFs: The staff has prioritized ETFs with custom indexes, limited secondary market trading, and risky assets.
  9. Digital Assets: Concerned about the volatile cryptocurrency markets, the SEC remains vigilant about the sale, trading, and management of digital assets.
  10. Cybersecurity: OCIE wants firms to identify and manage cybersecurity risks including devices, governance, and policies and procedures.

FINRA Releases 2018 Examination Results

FINRA has released its 2018 Examinations Findings as a “resource for firms to strengthen their compliance programs and supervisory controls.” FINRA says the report selected certain observations because of “their potential significance, frequency, and impact on investors and the markets.” The report highlights widespread deficiencies in suitability policies and procedures including “quantitative suitability” (i.e. series of transactions), overconcentrations, excessive trading, and variable annuities. FINRA also cites widespread failures to ensure fulsome disclosure of fixed income mark-ups, reasonable private placement due diligence, and abuse of discretionary authority. The broker-dealer regulator summarizes other concerns including anti-money laundering, net capital and customer protection calculations, best execution and outside business activities.

This extensive list (15 pages) covers many of FINRA’s greatest regulatory hits. It’s a great document for new compliance officers because it covers a wide range of broker-dealer compliance requirements. Rather than helping compli-pros focus resources, it works better as a checklist to verify that the firm has addressed the most serious regulatory requirements.

SEC Is Examining Registered Funds and ETFs for Oversight, Policies, and Conflicts

 

The SEC’s Office of Compliance Inspections and Examinations has announced a sweep of certain mutual funds and ETFs. The OCIE staff will target smaller ETFs and funds/ETFs that use custom indexes, allocate to securitized assets, exhibit aberrational underperformance, or employ inexperienced managers or private fund sponsors that manage a similar mutual fund.  The SEC will assess compliance policies and procedures and fund oversight of risks and conflicts, disclosures to shareholders and the Board, and oversight processes.  Among some of the issues of concern to the OCIE staff include bid/ask spreads for secondary market trading of smaller ETFs, portfolio management for underperforming funds, the effect of unexpected market stresses on securitized assets, and side-by-side allocations for private and public funds.  OCIE is encouraging fund sponsors and boards “to consider improvements in their supervisory, oversight, and compliance programs.”

Compli-pros and fund lawyers should mobilize to review policies and procedures for affected advisers and boards, consult about changes, and implement enhanced oversight and processes.  We recommend taking action before the OCIE staff arrives for its examination.