Asset Management

SEC Approves Consolidated FINRA Rules 2040 (Payments to Unregistered Persons, Including Foreign Finders)

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FINRA Rule 2040 governs the payment of transaction-based compensation by member firms to unregistered persons.

Rule 2040(a) – General.

Rule 2040(a) directs persons to look to SEC rules to determine whether the activities in question require registration as a broker-dealer under SEA Section 15(a). The provision also prohibits payments to appropriately registered associated persons unless such payments comply with applicable federal securities laws, FINRA rules, and SEA rules and regulations.

Rule 2040(c) – Foreign Finders.

Rule 2040(c) replaces NASD Rule 1060(b) and NYSE Interpretation 345(a)(i)/03, and provides that a member firm and persons associated with a member firm may pay transaction related compensation to non-registered foreign finders where the finders’ sole involvement is the initial referral to the member firm of non-U.S. customers, and the member firm complies with all the conditions set forth in the rule.

Based solely on its activities in compliance with Rule 2040(c), a foreign finder would not be considered an associated person of the member firm. However, unless otherwise permitted by the federal securities laws or FINRA rules, a person who receives commissions or other transaction-based compensation in connection with securities transactions generally has to be a registered broker-dealer or an appropriately registered associated person of a broker-dealer who is supervised by a broker-dealer. Member firms that engage foreign finders would be required to have reasonable procedures that appropriately address the limited scope of activities permissible under such arrangements.  Regulatory Notice.

 

SEC Issues Guidance Regarding Standards Applicable to Waivers of Disqualification under Regulation A and Rules 505 and 506 of Regulation D

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The disqualification provisions of Rules 262 and 505 under the Securities Act make the exemptions from registration under Regulation A and Rule 505 of Regulation D unavailable for an offering if, among other things, an issuer, any of its predecessors, or any affiliated issuer is subject to certain administrative orders, industry bars, an injunction involving certain securities law violations or specified criminal convictions. Disqualification also occurs if any of the issuer’s directors, officers, general partners, 10 percent beneficial owners of any class of the issuer’s equity securities, or promoters, underwriters, persons compensated for soliciting purchasers, or any of the underwriters’ or paid solicitors’ partners, directors, or officers, is subject to administrative orders, injunctions, associational bars or specified convictions.

On March 13, the SEC clarified that it may waive Regulation A or Regulation D disqualifications upon a showing of good cause that it is not necessary under the circumstances that the exemptions be denied.  A waiver could include conditions or limitations. The SEC has delegated authority to grant these waivers to the Director of its Division of Corporation Finance.

New FAQ’s Regarding the Scope and Implementation of the Volcker Rule Issued by the U.S. Banking, Securities and Commodities Regulatory Agencies

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On February 27, the Board of Governors of the Federal Reserve System, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Securities and Exchange Commission and the Commodity Futures Trading Commission issued a new set of frequently asked questions and responses regarding the scope and implementation of Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, commonly referred to as the “Volcker Rule.”  Among the issues addressed are:

  • Loan Securitization Servicing Assets:  Are the “rights or other assets” described in § 44.10(c)(8)(i)(B) of the Volcker Rule (“servicing assets”) limited to “permitted securities,” or can other assets be servicing assets for purposes of the loan securitization exclusion?
  • Mortgage-Backed Securities of Government-Sponsored Enterprise:  How are certain mortgage-backed securities issuers sponsored by government-sponsored enterprises treated under the final rule’s covered funds provisions?
  • Covered Fund Exemption; Marketing Restriction on Foreign Banking Organization:  The Volcker Rule provides an exemption for certain covered fund activities conducted by foreign banking entities (known as the “SOTUS Covered Fund Exemption”) provided that, among other conditions, “no ownership interest in such hedge fund or private equity fund is offered for sale or sold to a resident of the United States” (the “marketing restriction”).  Does the marketing restriction apply only to the activities of a foreign banking entity that is seeking to rely on the SOTUS covered fund exemption or does it apply more generally to the activities of any person offering for sale or selling ownership interests in the covered fund?
  • Conformance Period:  How do the requirements of the Volcker Rule apply to a banking entity during the conformance period? For instance, must a banking entity deduct its investment in a covered fund from its tier 1 capital prior to the end of the conformance period?
  • Foreign Public Fund Seeding Vehicles:  The Volcker Rule excludes from the definition of covered fund a registered investment company and business development company, including an entity that is formed and operated pursuant to a written plan to become one of these entities.  Would an entity that is formed and operated pursuant to a written plan to become a foreign public fund receive the same treatment?

Link to the website of the Office of the Comptroller of the Currency that sets forth the FAQ’s.

The SEC’s Office of Compliance Inspections and Examinations (OCIE) Publishes Risk Alert On Addressing Cybersecurity Issues for Broker-Dealers and Investment Advisers

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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.

SEC Launches Municipal Advisor Exam Initiative

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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.

SEC Announces Order for Tick Size Pilot Plan to Assess Impact on Market Quality for Small Cap Companies

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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.

SEC Issues Responses to Frequently Asked Questions on the Volcker Rule

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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.

SEC Updates FAQs Regarding the Municipal Advisor Registration Rules

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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.  

CFTC Implements Standard Approach for CPO Delegated Investment Management Authority

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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. 

FINRA Proposes Lighter Regulatory Regime For Limited Corporate Financing Brokers

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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.