For Investment Advisers and Broker-Dealers
Bringing Back BICE. The Department of Labor (DOL) issued some Frequently Asked Questions on its new Prohibited Transaction Exemption 2020-02 (“PTE 2020-02”). First, the bad news. The DOL is sticking to its guns by affirming that a recommendation to rollover assets from an ERISA plan or IRA can be considered fiduciary investment advice under ERISA if the advice is either part of an existing relationship or the start of an ongoing relationship. Now, the even worse news. In FAQ 5, the DOL states that it is not finished yet and intends to make further changes to its fiduciary regulations. The DOL also released a companion guide for consumers called “Choosing the Right Person to Give you Investment Advice: Information for Investors in Retirement Plan and Individual Retirement Accounts.”
The headline from PTE 2020-20 is that it allows investment advisers and broker-dealers to receive otherwise prohibited compensation, including commissions, 12b-1 fees, revenue sharing, and mark-ups and mark-downs in certain principal transactions. (For more detail, see our article Not Quite Dead Yet – DOL’s Fiduciary Rule Rises Again in our March 2021 Regulatory Update.) The exemption applies to recommendations to roll over assets from an employee benefit plan to an IRA. On the surface, this seems like good news. But the DOL significantly changed its interpretation of the “five-part fiduciary test” in the exemption’s preamble and now holds that a rollover recommendation may be ERISA investment advice if the advice is ongoing.
The cornerstone of the exemption is the requirement that firms adopt Impartial Conduct Standards, which require fiduciaries to ERISA and IRA plans to:
- Provide prudent investment advice
- Charge only reasonable compensation, and
- Avoid misleading statements.
Additionally, financial professionals and their firms must also acknowledge in writing their fiduciary status under ERISA when providing investment advice to retirement investors and provide a written description of the services provided and their material conflicts of interest. Finally, financial institutions “must adopt policies and procedures prudently designed to ensure compliance with the Impartial Conduct Standards and that mitigate conflicts of interest, and must conduct an annual retrospective review of compliance.”
The FAQs provide more specifics on what will, and will not, be acceptable from the DOL’s point of view.
- FAQ 7 discusses when a rollover recommendation can cross the line into “regular basis” fiduciary advice:
“A single, discrete instance of advice to roll over assets from an employee benefit plan to an IRA would not meet the regular basis prong of the 1975 test.” Advice to rollover plan assets that occurs as part of an ongoing relationship or “as the beginning of an intended future ongoing relationship that an individual has with an investment advice provider” crosses the line into “regular basis,” making the financial service provider an ERISA fiduciary.
- FAQ 8 says that you cannot avoid fiduciary status with a disclaimer. “Boilerplate disclaimers are insufficient to defeat the test, when the parties have a mutual understanding that the adviser is making an individualized recommendation upon which the investor can be expected to rely in making the investment decision. … Firms and investment professionals cannot use written disclaimers to undermine reasonable investor understandings.”
- FAQ 15 discusses how investment professionals can comply with their fiduciary obligations. The factors cited are substantially similar to those discussed in “Best Interest Contract Exemption” (“BICE”) and include:
- Reviewing the retirement investor’s alternatives to a rollover, “including leaving the money in the investor’s employer’s plan, if permitted;”
- Comparing the fees and expenses associated with both the plan and the IRA;
- Determining whether the employer pays for some or all of the plan’s administrative expenses;
- Comparing the levels of services and investments available under each option: and
- Considering the individual needs and circumstances of the retirement investors
The DOL wants to see documentation showing that the investment professional made “diligent and prudent efforts” to obtain information about the client’s existing 401(k) plan, including asking the client to share the disclosures provided by the plan. And if this is not available, “the financial institution and investment professional should make a reasonable estimation of expenses, asset values, risk, and returns based on publicly available information.”
- FAQ 13 includes model language for firms to acknowledge their fiduciary status:
“When we provide investment advice to you regarding your retirement plan account or individual retirement account, we are fiduciaries within the meaning of Title I of the Employee Retirement Income Security Act and/or the Internal Revenue Code, as applicable, which are laws governing retirement accounts. The way we make money creates some conflicts with your interests, so we operate under a special rule that requires us to act in your best interest and not put our interest ahead of yours.
Under this special rule’s provisions, we must:
- Meet a professional standard of care when making investment recommendations (give prudent advice);
- Never put our financial interests ahead of yours when making recommendations (give loyal advice);
- Avoid misleading statements about conflicts of interest, fees, and investments;
- Follow policies and procedures designed to ensure that we give advice that is in your best interest;
- Charge no more than is reasonable for our services; and
- Give you basic information about conflicts of interest.”
There’s more in the FAQs, including discussions of conflicts of interest and mitigation requirements, so I highly recommend that investment advisers and broker-dealers read the document in its entirety. There is an excellent video from the Investment Advisers Association and the Groom Law Firm explaining this exemption for those of you that are visual learners. Stay tuned for future posts from Hardin. Contributed by Jaqueline M. Hummel, Partner and Managing Director.
FINRA’s 2021 Entitlement User Account Certification Period Commences. This year’s certification period began on 4/19/21 and will end on 7/19/2021. The firm’s Super Account Administrator (“SAA”) must be the individual to perform this certification. As a reminder, SAAs will be notified of the certification on FINRA’s Account Management Home page and receive an email that includes the start and due date of the Certification. Failure to complete the certification by the established deadline will result in all user accounts associated with the firm being suspended until the certification is complete. For detailed instructions regarding how to complete the certification, please refer to FINRA’s Entitlement Program FAQ and Annual Entitlement User Accounts Certification Process Guide. Contributed by Rochelle A. Truzzi, Managing Director.
Gary Gensler Confirmed as New SEC Chair. Gary Gensler, former chair of the CFTC, was confirmed by the Senate as Chair of the SEC on April 14, 2021.
For Investment Advisers
The Division of Examinations’ Review of ESG Investing. Given the continued increase in investor demand for ESG-focused financial products, regulators, issuers, financial advisors, investors, and other stakeholders have been at the table for some time now over how global securities regulations should address these factors. Most recently, the SEC’s Division of Examinations (EXAMS) published a risk alert sharing weaknesses observed on the topic of ESG investing by investment advisers and registered investment companies. In a nutshell, the alert reconfirms the ongoing risks and challenges that stem from a lack of standardized ESG terminology and compliance programs that aren’t keeping pace with their firm’s increased ESG related activities. EXAMS has a strong appetite for scrutinizing firms’ policies, procedure, disclosures, and practices related to ESG investing with an emphasis in the following areas:
EXAMS wants to know how a firm defines ESG-terminology applicable to their strategy(ies), how it conducts due diligence on portfolio investments, how securities are selected and monitored through an ESG lens ongoing, and how the firm approaches proxy voting decisions in ESG focused accounts. EXAMS is, of course, also interested in how these activities are described in marketing materials and other disclosures. EXAMS observed disclosures that were inconsistent with actual practices and inadequate controls used by firms to maintain client-requested ESG-related guidelines and mandates, including procedures to comply with client-requested restrictions and negative screens. In particular, EXAMS highlighted firms that touted abilities to manage client ESG restrictions in marketing materials but had not yet implemented such solutions. On the proxy voting front, the staff observed firms that claimed to have procedures to review ESG-related proxies on a case-by-case basis but failed to implement such procedures.
- Performance Advertising and Marketing
Expect examiners to review regulatory filings, contracts, websites, due diligence questionnaires, and other marketing materials and communications with clients to confirm whether the firm’s descriptions of their approach to ESG are consistent with actual practices. This includes claims by firms to adopt a global ESG framework (such as UNPRI). If you claim to follow any such framework, be prepared to prove it. Again, EXAMS mainly observed inconsistencies between actual practices and disclosures, and attributed these inconsistencies to a more general “weakness in controls over public disclosures and client-facing statements”, as well as a lack of documentation to substantiate claims related to ESG. Firms would be wise to take a fresh look at their process to ensure key stakeholders have eyes on these documents initially and as things change over time. For example, consider your process for multiple parties to review Form ADV 2A disclosures and whether you could adapt similar workflows to help keep tabs on ESG-related content.
Expect EXAMS to dive deep into written policies and procedures concerning ESG investing practices and comparing them with actual practices used throughout the firm. This will likely be a test, not only of how well your compliance team understands the academic aspects of compliance for ESG investing, but also how aware the compliance team is of the firm’s investment, sales/marketing and product development team activities. EXAMS noted compliance programs that were simply not keeping pace with firms’ ESG product rollouts and investment strategy changes to incorporate ESG factors. For example, it called out firms without written policies and procedures to address their portfolio management processes and the compliance reviews and oversight that should accompany them. EXAMS also highlighted inadequate oversight of subadvisers providing ESG-focused services. Finally, the staff observed compliance departments that, in its view, lacked sufficient ESG-related knowledge about their firm’s activities.
One thing remains clear – firms that manage and market ESG-focused strategies, or simply accept client restrictions of an ESG nature, should be on alert that EXAMS will likely take a very close look under the hood during upcoming exams. The compliance lift to ensure that policies and procedures reflect actual business practices in this area is already material and only shows signs of escalating. This is also one area of compliance worth highlighting the tremendous value of having a CCO with a genuine “seat at the table.” That CCO will be best positioned to manage the risks highlighted by this alert, lead a compliance team armed with current institutional knowledge, and communicate openly across investment, product development, and marketing teams. Contributed by Cari A. Hopfensperger, Managing Director.
SEC Issues Risk Alert to Broker-Dealers Identifying Known Deficiencies Related to AML Programs. Broker-Dealers are essential players in preventing criminals from misusing our financial systems to conduct criminal activities, including terrorist financing. To satisfy its obligations under the Bank Secrecy Act, the SEC requires a firm to establish and implement policies, procedures, and internal controls reasonably designed to identify and report suspicious transactions to the appropriate authorities. In this risk alert, the SEC’s Division of Examinations (“EXAMS”) shares its findings from recent examinations of broker-dealers and mutual fund AML programs. The material deficiencies noted by EXAMS relate to inadequate and policies and procedures, failure to implement procedures, failure to respond to suspicious activities, and filing of inaccurate or incomplete SARs. We encourage firms to use this information to review and potentially enhance their AML programs.
Policies and procedures must be specifically tailored to address the firm’s AML risks associated with the firm’s products and services, customer base, and geographic locations. AML procedures should address red flags relevant to the firm’s business operations, the use of automated monitoring reports to identify suspicious activities, and establish adequate reporting thresholds (e.g., low priced securities transactions, transaction amounts that meet or exceed SAR reporting requirements). Firms must make reasonable use of available transaction reports to monitor for suspicious transactions and follow-up on red flags identified in the procedures and violations regarding prohibited transactions. The SEC takes exception when a firm does not conduct or document due diligence in response to known indicators of suspicious activities, or fails to file SARs when the firm knew, suspected, or had reason to suspect they were being used to facilitate a crime. Finally, EXAMS notes that when firms file inaccurate or incomplete SARs, it hinders the authorities from assessing the criminal or regulatory implications of the suspicious activities. Do not omit material facts or use boilerplate language. The information provided should provide a clear picture of the suspicious activities in the customer account(s).
Contributed by Rochelle A. Truzzi, Managing Director.
FINRA Regulatory Notice 21-09: FINRA Adopts Rules to Address Brokers with a Significant History of Misconduct. FINRA has amended several rules to tighten the requirements around the hiring of registered representatives with a history of misconduct. A number of the rule amendments became effective on April 15, with the remaining becoming effective on May 1, June 1, and September 1. Highlights from the amendments:
- Member firms may be required to submit a Continuing Membership Agreement (“CMA”) to FINRA if they wish to hire a registered representative that within the previous five years have: one or more “final criminal matters”; or two or more “specified risk events” on their record. FINRA will make the CMA determination after the member firm submits a Materiality Consultation to FINRA.
- In instances where disciplinary actions are appealed to the National Adjudicatory Council, mandatory heightened supervisory procedures will be required for the respondent. Further, the FINRA Hearing Officer may impose additional conditions or restrictions on the respondent.
- Heightened supervisory procedures will now be required for statutorily disqualified associated persons during the period that FINRA reviews an eligibility request.
For another viewpoint, check out this article published by Alan Wolper at Ulmer & Berne: FINRA’s New Rules Are A Game-Changer, Especially When It Comes To Hiring . . . And Not in A Good Way. Wolper details what FINRA is doing with these amendments and, more importantly, how the amendments will impact member firms going forward.
Firms are encouraged to review and update their hiring procedures, if necessary, to ensure compliance with these new requirements. Contributed by Doug MacKinnon, Senior Compliance Consultant.
Regulatory Notice 21-07: FINRA Provides Guidance on Common Sales Charge Discounts and Waivers for Investment Company Products. This notice did not create any new legal or regulatory requirements, nor did it provide any new interpretations for any related rules. Instead, FINRA, again, as it has done many times before, is reminding members of their obligations regarding sales charges and waivers for investment company products. The notice addresses types of discounts and waivers, common findings, and adequacy of supervisory systems. The material presented in the notice is straightforward, yet it provides an excellent blueprint for members to leverage when reviewing their compliance programs. Contributed by Doug MacKinnon, Senior Compliance Consultant.
 The five-part test defines an ERISA fiduciary as someone who, for a fee, (i) provides investment advice to an ERISA plan, plan fiduciary, plan participant, or IRA owner (ii) on a regular basis (iii) pursuant to a mutual agreement. The advice must (iv) serve as the primary basis for an investment decision, and (v) be individualized based on the particular needs of the plan, plan participant, or IRA owner.
Photo Credit: Photo by Neven Krcmarek on Unsplash.