On February 3, the SEC’s Office of Compliance Inspections and Examinations (OCIE) published a Risk Alert that contains observations based on examinations of more than 100 broker-dealers and investment advisers. The examinations focused on how these firms:
- Identify cybersecurity risks
- Establish cybersecurity policies, procedures, and oversight processes
- Protect their networks and information
- Identify and address risks associated with remote access to client information, funds transfer requests, and third-party vendors
- Detect unauthorized activity
A second publication, an Investor Bulletin issued by the SEC’s Office of Investor Education and Advocacy (OIEA), provides core tips to help investors safeguard their online investment accounts, including:
- Pick a “strong” password
- Use two-step verification
- Exercise caution when using public networks and wireless connections
Risk Alert. Investor Bulletin. Press Release.
On August 19, the SEC Announced a Municipal Advisor Exam Initiative for newly registered municipal advisors. This “presence” exam initiative appears to be similar in scope and purpose to the “presence” examinations that the SEC has been conducting of investment advisers that were newly registered as a result of the implementation of the Dodd-Frank-Act.
SEC rules that took effect on July 1 generally require municipal advisors to register with the SEC under the final registration process during a four-month phase-in period by October 31. The examinations are designed to establish a presence with the newly regulated municipal advisors. Over the next two years, the SEC Staff plans to examine a significant percentage of these advisors using an approach that focuses on identified risks. Areas targeted for scrutiny may include the municipal advisor’s compliance with its fiduciary duty to its municipal entity clients, books and recordkeeping obligations, disclosure, fair dealing, supervision, and employee qualifications and training. Press Release.
On June 25, the SEC announced that it has ordered the national securities exchanges and the Financial Industry Regulatory Authority (FINRA) to act jointly to develop and file with the Commission a national market system plan to implement a targeted 12 month pilot program that will widen minimum quoting and trading increments (tick sizes) for certain small capitalization stocks. The Commission plans to use the program to assess whether these changes would enhance market quality to the benefit of U.S. investors, issuers and other market participants. Press Release.
On June 10, the staff of the Divisions of Trading and Markets, Investment Management and Corporation Finance provided guidance on the commission’s final rule implementing Section 13 of the Bank Holding Company Act of 1956, commonly referred to as the “Volcker Rule,” through the issuance of Responses to Frequently Asked Questions. FAQs.
On May 19, the SEC updated its Frequently Asked Questions Regarding the Municipal Advisor Registration Rules to clarify when the proceeds of pension obligations bonds should be treated as “proceeds of municipal securities.” In the staff’s view, proceeds of pension obligation bonds lose their character as proceeds of municipal securities under the Final Rules upon their contribution to the public pension plan when they are commingled with other pension funds for collective investment and are treated as “spent” to carry our their authorized purposes to fund the public pension plan under applicable state law. FAQs.
On May 12, the Division of Swap Dealer and Intermediary Oversight of the CFTC announced the implementation of a standardized, streamlined approach for processing requests for relief where a CPO that has delegated investment management authority as a CPO of a commodity pool to another person who is registered as a CPO, and the delegating CPO does not engage in the solicitation of participants for, or the management of property of, the applicable commodity pool. Staff Letter.
The Financial Industry Regulatory Authority (FINRA) recently issued a Regulatory Notice requesting comment on a Proposed Rule Set for Limited Corporate Financing Brokers (LCFBs). The comment period expires on April 28, 2014. Please click here for Orrick’s Alert which provides an overview and analysis of the Rule Set and its merits.
FINRA issued for comment a Proposed Rule Set for Limited Corporate Financing Brokers (LCFBs). The proposed rule set would provide a lighter regulatory regime for LCFBs, defined as any broker that solely engages in one or more of the following activities:
- advising an issuer, including a private fund, concerning its securities offerings or other capital raising activities;
- advising a company regarding its purchase or sale of a business or assets or regarding its corporate restructuring, including a going-private transaction, divestiture or merger;
- advising a company regarding its selection of an investment banker;
- assisting in the preparation of offering materials on behalf of an issuer;
- providing fairness opinions; and
- qualifying, identifying or soliciting potential institutional investors.
The rule set would not apply to firms that carry or maintain customer accounts, handle customers’ funds or securities, accept customers’ trading orders or engage in proprietary trading or market-making. The proposed rule set also is limited in that, among other things, it would not eliminate all exam requirements for principals and representatives that are associated with an LCFB and would not eliminate the net capital requirements. The comment period expires on April 28. Regulatory Notice.
On January 31, in a significant no-action letter (Letter), the Staff of the Division of Trading and Markets provided assurances that it would not recommend enforcement action to the Commission under Section 15(a) of the Securities Exchange Act of 1934 if an “M&A Broker” (as defined in the Letter) were to engage in enumerated activities in connection with the purchase or sale of a privately-held company without registering as a broker-dealer pursuant to Section 15(b) of the Exchange Act.
The Letter is the culmination of years of effort (both political and regulatory) and provides significant relief to a broad range of activities heretofore restricted to registered broker-dealers. Letter.
On February 6, the staff of the SEC’s Division of Investment Management issued a no-action letter with respect to Rule 3c-5 of the Investment Company Act of 1940 (the Company Act) that represents a substantial improvement over the existing guidance regarding the definition of “knowledgeable employees” thereunder, i.e., persons who are not required to be “qualified purchasers” under Section 3(c)(7) of the Company Act, or to be counted for purposes of the 100 beneficial owner limit under Section 3(c)(1) of the Company Act. Response.