Eleven Key Takeaways for Updating your Compliance Program in 2019: Investment Advisers, Mutual Funds, Hedge Funds and Private Equity Funds

by Hardin Compliance Consulting LLC

Based on regulatory developments from 2018, here are our suggestions for updates to your compliance program for 2019.


Conflict of the Year:  Receiving 12b-1 Fees without Sufficient Disclosure

In 2018, the SEC became increasingly aggressive against advisers for failing to disclose, or to adequately disclose, conflicts of interest.  Attention-grabbing cases have involved advisers and their affiliates receiving 12b-1 fees, revenue sharing, and payments from other advisers and service providers.  In a press release, the SEC said these advisers “failed to disclose conflicts of interest and violated their duty to seek best execution by investing advisory clients in higher-cost mutual fund shares when lower-cost shares of the same funds were available.” (See Additional Resources, Conflicts of Interest and Best Execution at the end of this article for references to these cases.)  As former Director of SEC’s Division of Enforcement, Stephen M. Cutler, said back in 2003:

Shed the blinders of ‘industry practice’ that may have made it possible for you not to see the conflicts that surround you daily.  Just because the industry has always done something ‘that way’, don’t assume it’s acceptable.

Undisclosed conflicts of all types were highlights of SEC enforcement actions in 2018.  For example, an investment adviser agreed to pay an $8 million penalty for failing to disclose conflicts of interest to its clients.  In this case, deVere USA (DVU) recommended and assisted clients in rolling over their U.K. pension assets to retirement plans that would receive favorable tax treatment under U.K. tax laws. DVU would then provide investment advice for the transferred assets.  DVU’s dirty little secret was that the firm’s investment adviser representatives (IARs) received payments from various service providers the firm recommended, such as custodians, trustees, and foreign exchange providers, and received front-end sales loads from European investments.  None of these payments were disclosed on the Firm’s Form ADV Part 2A.  In addition to the $8 million penalty, the SEC ordered DVU to notify clients of the proceeding, provide four hours of training each year for the next two years to all employees on fiduciaries duties, and retain an independent compliance consultant to review the firm’s compliance program.  Separate charges were filed against former DVU CEO, Benjamin Alderson and Bradley Hamilton, both of whom were IARs of the firm.

In addition to undisclosed referral arrangements, the SEC also brought cases revisiting advisory practices that commonly result in conflicts:  cross trading and valuations.

Cross trading can be appropriate when the adviser can ensure that it is in the best interest of buying and selling clients and when the firm appropriately and accurately discloses the practice.  The adviser also has a fiduciary duty to ensure that both sides of the deal are traded fairly.  This tends to be the most common downfall of traders and portfolio managers doing the trading, as two advisory firms discovered.  In both cases (In the Matter of Hamlin Capital Management, LLC and In the Matter of Putnam Investment Management, LLC and Zachary Harrison), the firms favored the buying clients at the expense of the selling clients, in violation of firm procedures and their fiduciary duties.  In both situations, the firms failed to accurately disclose how the cross-trading price was set.  (Hamlin got a $900,000 fine and had to reimburse clients.  Putnam’s penalties totaled $1,050,000.)

Valuation is often an area where advisers fail to meet regulators’ expectations.  Even large organizations with sophisticated supervisory processes can make mistakes, as evidenced by the SEC’s action against Citigroup Global Markets, Inc.  In this case, Citigroup, a dually registered broker-dealer and investment adviser, settled charges that it failed to supervise its traders. The case involved undetected mismarking of illiquid securities by three different traders at different trading desks, as well as some unauthorized speculative trading. Citigroup’s traders dealt with securities that did not have a readily available market value.  At the same time, the traders were responsible for marking the value of these securities and had discretion in determining the values.  At least two of the traders also received performance-based bonuses.  The lure of a large bonus and the ability to manipulate performance numbers provided an irresistible temptation to cheat.  Moreover, front line supervisors were not held accountable for the traders’ valuations, making it easier for the traders to evade detection.  Finally, corporate programs aimed at cost management eroded the ability of the last line of defense, the valuation control group, to catch the mispricing.  The firm was fined $5.75 million.

There are two other valuation cases from 2018 worth mentioning.  In Premium Point Investments LP (“Premium Point”), the firm was charged with a scheme that involved getting fake quotes from friendly brokers to pump up the value of the firm’s portfolio.  In Visium Asset Management, L.P., portfolio managers were also found to have manipulated portfolio values using inflated quotes from brokers.

Recommendation #1

An adviser that receives 12b-1 fees (whether directly as a dually registered broker-dealer or indirectly through an affiliated broker-dealer) as a result of using mutual fund share classes with 12b-1 fees for its clients should include specific disclosure on its Form ADV Part 2A.  The disclosure should state that the firm [or its affiliate(s)] receives payments from third parties, such as 12b-1 fees, revenue sharing payments, and marketing support payments.  This disclosure should identify the source of these payments, such as mutual funds, broker-dealers, custodians, etc.  The firm should also state that the payments present a conflict of interest between the firm and its clients’ best interests. Simply put, the firm has a financial incentive to invest client assets in mutual funds where the firm or its affiliates receive payments from outside parties.  Finally, the disclosure should also address whether the firm and its IARs select mutual fund share classes that charge 12b-1 fees, even in situations where clients may be eligible for lower cost share classes of the same fund.  This disclosure should also state whether the firm has a specific process for selecting mutual fund share classes, and what factors are taken into consideration when making that decision.

Recommendation #2:

Advisers should conduct a review of conflicts of interest periodically (at least once a year).  A conflict of interest is an activity or relationship that might provide an incentive for an adviser to act in a way that is not consistent with the client’s best interest.

Another way to find conflicts is to follow the money.  CFO’s may balk at a CCO’s request to review firm financials, including employee expenses, general ledgers, etc., but the benefit of this additional pair of eyes is that the CCO views the information through a different lens.  This review can be critical in detecting undisclosed conflicts and other compliance matters.  And it is better to find an issue before the SEC raises the question during an examination.

Recommendation #3: Take the lessons from the above cases to heart and review policies and procedures related to conflicted activities, such as valuation and cross trading, to ensure that they are robust and include sufficient controls to prevent similar issues.


  • Address conflicts using oversight and governance. While a portfolio manager should participate in the valuation process, firms should consider establishing a valuation committee or de-facto valuation team with representation by senior firm managers to mitigate the impact of the portfolio manager’s conflicted position.  Recommended participants include the Chief Compliance Officer, head of operations/COO, CFO, internal legal counsel, and senior trading personnel.
  • Procedures should include standard workflows to handle stale prices, subsequent events, and price challenges. Decisions made to address these issues should be carefully documented and reviewed by compliance.
  • Where harder to value securities (referred to under GAAP as level 2 and 3) are used, firms should consider implementing look-back testing by comparing the actual sale prices to the fair value determined by the adviser and then analyzing any significant discrepancies. This can be a useful tool for advisers in refining their valuation processes.

Cross trading:

  • Cross trading policies and procedures should be reviewed to ensure an appropriate level of oversight, testing, and consistency with disclosure documents.
  • Suggested procedures could include: CCO pre-approval of cross-trading activity, establishment of a process to determine the price at which any approved cross is executed, and a review of that price against current market conditions. Similar to the valuation process, the portfolio manager should not be empowered to determine the price; firms should incorporate oversight and controls into these procedures.


As part of its efforts to provide more information to registrants about its findings and concerns, OCIE issued this Risk Alert identifying the six most frequent deficiencies relating to advisory fees and expenses which include:

  • Fee-billing based on inaccurate account valuations
  • Billing fees in advance when a contract states arrears or with improper frequency
  • Applying incorrect fee rates
  • Omitting rebates and applying discounts incorrectly
  • Inconsistent or inaccurate disclosures involving advisory fees
  • Misallocation of expenses for private and registered investment funds.


Our experience at Hardin Compliance Consulting is consistent with these findings.  We recommend that compliance officers test the billing process for accuracy and consistency with the advisory contract, Form ADV disclosures, and fund offering documents, as applicable.  Review the Risk Alert closely and consider whether your firm has the appropriate processes in place to address the issues discussed. Testing the accuracy of these processes is essential.  Consider the following practices to enhance the accuracy of the billing process:

  1. Adopt a robust account onboarding process that includes a check and balance on the initial entry of the information in the firm’s billing system to confirm that the fee schedule entered is consistent with the terms of the investment management agreement (IMA) and the disclosures related to fees in the Form ADV.    If the firm offers breakpoints or prorates fee calculations for intra-period client cash flows, consider adding a review of these items as part of your firm’s quality control process. It is important that the individual setting up the fee terms in the billing system should not be the same person checking them for accuracy.
  2. Customized terms should be memorialized in the agreement and addressed in the review process.
  3. Institute periodic transactional and forensic testing of fee terms and calculations to ensure that they are being calculated in accordance with the IMA’s terms.  For example, transactional testing could be performed by operations or accounting as an additional check and balance during the invoicing process.  Forensic testing could be performed by compliance during the course of the annual compliance program review.
  4. Review fee calculations made by intermediaries in situations where you, as the adviser, do not calculate the fee (such as in a subadvisory or wrap arrangement).
  5. Confirm that the account values used to calculate the fees are consistent with the disclosure in the Form ADV and the IMA.
  6. For firms that collect management fees in advance, ensure there is a process in place to determine when accounts are closed or transferred out, and that any unearned fees are refunded to clients.  Include disclosure in Form ADV Part 2A so that clients know what to expect.  For example, do not say unearned fees are returned “promptly” if that is not the case.
  7. Review Form ADV Part 2A disclosures periodically to ensure that fee billing and fee calculation practices, including billing error correction, are accurately disclosed (including avoiding the use of “may” when a practice “is” occurring).  Operations and on-boarding personnel should be involved in this review.
  8. For private and mutual fund advisers, implement controls and compliance testing of fund expense processing to ensure that fund expenses are paid as stated in fund documents and related disclosures.  Firms should implement guidelines for determining when an expense is eligible for payment by the fund and for allocating expenses between a fund and its adviser, or across multiple funds.
  9. Correct any billing or expense processing errors pro-actively and promptly.  Similar to trade error procedures, maintain documentation related to any corrections and review the circumstances surrounding an error to prevent reoccurrence.


Best execution is always on the SEC’s exam hit list for investment advisers, so this risk alert provides great information about what the examiners are finding.  The common deficiencies cited were:

  • Not performing best execution reviews
  • Not considering materially relevant factors during best execution reviews
  • Not seeking comparisons from other broker-dealers
  • Not fully disclosing best execution practices
  • Not disclosing soft dollar arrangements
  • Not making a reasonable allocation of mixed-use products or services
  • Inadequate policies and procedures related to best execution, and
  • Not following best execution policies and procedures.


These deficiencies boil down to failure in the process, the documentation and the disclosure.  Advisers that engage in equity and fixed income trading for their clients and have the discretion to select broker-dealers to execute trades should consider having the following processes in place and documentation that demonstrates their execution.  Remember – if it isn’t documented, it didn’t happen.

  1. Broker-dealer selection, including appropriate criteria to support using that firm to execute trades;
  2. Evaluation of execution quality, including both quantitative and qualitative factors and taking into consideration feedback from traders and portfolio managers;
  3. Soft dollar arrangement reviews, including determining whether products and services meet the criteria of Section 28(e) of the Securities Exchange Act safe harbor, formal approval of arrangements, allocation of mixed-use products; and
  4. Review of commission payments.

Investment advisers that serve retail clients and use a limited number of broker-dealers to provide execution and custody services should consider having the following processes in place:

  1. Documentation of the due diligence process involved in selecting the broker-dealer, such as a memo presented to firm management that compares the quality and costs of broker-dealers considered, including a discussion of the deciding factors;
  2. Documentation of a review of the policies and procedures of the selected broker-dealer to confirm that regulatory requirements will be met;
  3. Perform due diligence periodically (e.g., every three years) on the current and other potential broker-dealers to determine whether the clients are still receiving quality service at competitive prices; and
  4. Documentation of discussions with their custodial broker-dealer regarding the reduction of fees and commissions (even if unsuccessful).

All advisers should consider developing a review process to make sure that the disclosures in Form ADV Part 2A are consistent with their practices.  Consider requiring best execution or brokerage committees, traders and portfolio managers to review and approve the disclosure before Form ADV is filed.  Although a compliance officer may do the drafting, those responsible for trading activity should own this disclosure.  The cases brought by the SEC on best execution revolve around disclosure, so making sure it’s accurate should be a firm-wide obligation.


OCIE also shared its list of compliance issues related to the Cash Solicitation Rule in a risk alert.  It’s not surprising that OCIE decided to highlight referral arrangements, since it has been our experience that advisers often neglect to comply with the Rule’s requirements.


Advisers should read this alert carefully and consider whether their current referral arrangements comply with Advisers Act Rule 206(4)-3.  If your firm pays for referrals, then consider having a process in place for your compliance officer to review any referral arrangements before any referrals or payments are made.  The process should include:

  • Performing due diligence on the solicitor before entering into an agreement;
  • Using a written agreement between the firm and the solicitor that meets the requirements of Rule 206(4)-3;
  • Providing referred clients with disclosure that meets the requirements of Rule 206(4)-3;
  • Receiving signed acknowledgements from referred clients confirming that disclosure document and Form ADV Part 2A has been received;
  • Requiring certifications from solicitors periodically attesting to compliance with the agreement and the Cash Solicitation Rule; and
  • Updating the Form ADV Parts 1 and 2A to disclose the solicitation arrangements.

I also recommend reviewing our blog post, 12 Things You Need to Know about Adviser Referral Arrangements and the Cash Solicitation Rule, which highlights additional regulatory issues to be considered when entering into referral arrangements under state law.  For example, in many states, the act of recommending an investment adviser is considered providing investment advice, so a person receiving a solicitation fee has to register as an investment adviser representative.  Some states also limit the ability of accountants and lawyers to receive referral fees.

Referral arrangements carry additional compliance burdens, so make sure you have a plan to address them.


Check out OCIE’s Risk Alert:  Observations from Investment Adviser Examinations Relating to Electronic Messaging, which identifies practices that can help advisers meet their recordkeeping obligations under Advisers Act Rule 204-2, the Books and Records Rule.

This Risk Alert recommends an incredibly broad range of actions for advisers to consider, including recommending that firms regularly review “popular social media sites to identify if employees are using the media in a way not permitted by the adviser’s policies.” Firms are also encouraged to run regular Internet searches or set up automated alerts “to notify the adviser when an employee’s name or the adviser’s name appears on a website to identify potentially unauthorized advisory business being conducted online.”  The alert also recommends that advisers establish a confidential reporting program “where employees can report concerns about a colleague’s electronic messaging, website, or use of social media for business communications. Particularly with respect to social media, colleagues may be “connected” or “friends” with each other and see questionable or impermissible posts before compliance staff notes them during any monitoring.”


The SEC dropped this risk alert like a bomb just before the holidays, and with the government shut down, the industry hasn’t had a chance to voice its concerns or ask questions.  The Pandora’s Box of electronic messaging apps has been opened, however, so advisers need to address the use of these new venues of communication in their compliance programs, both from a policy and systems perspective.

There are a lot of good recommendations in this risk alert that can be used by advisers to augment their current supervisory process.  Others seem overly intrusive (like asking employees to report about their colleagues’ questionable posts on social media) or impractical (such as requiring employees to move messages received on an unapproved platform to one being captured and monitored by the firm).   Before pulling your hair out trying to incorporate all of them in your compliance program, we recommend that advisers first understand how their employees and investment advisory representatives are using messaging apps and social media to communicate with clients outside the firm’s email system.  Are they texting, using instant messaging, personal email, or other forms of private messaging?   Which communication platforms are they using, and which devices, e.g., firm computers, personal computers, tablets, websites, and mobile devices do they use?  Management should use this information to evaluate the record-keeping costs and opportunities associated with the venues and apps the firm wants to use to communicate with clients.

Advisers have limited resources, so management should consider restricting the forms of electronic communications to be used to those that best support its business model and can be used in compliance with the Advisers Act Rule 204-2 (the “Books and Records Rule”).  In addition to retaining client communications, the SEC also expects firms to supervise communications.  The SEC has left it to investment advisers to use a risk-based approach in setting up monitoring programs; it encourages the use of compliance testing and device control mechanisms.  Retaining and monitoring electronic communications takes time and resources, such as software programs and personnel to administer the software and review the communications.  Advisers should consider the “value add” of a particular mode of communication before using firm resources to retain, administer, and supervise its use.


The SEC’s scrutiny of standard custody arrangements that retail investment advisers have with major custodians continues to be an exam focus.  Compliance officers should consider reviewing the SEC’s Guidance Update on Inadvertent Custody and the Investment Advisers Association (IAA) No-Action Letter and make sure they have addressed issues raised by Standing Letters of Authorization (SLOAs).  For help determining whether your advisory firm has custody, check out our Custody SLOA Flow Chart here.

At least one state securities department has followed the SEC’s lead in focusing on potential custody violations.  The Pennsylvania Department of Banking and Securities issued a position letter on September 25, 2018 telling state-registered investment advisers and their investment adviser representatives to stop using client usernames and passwords to access client custody accounts. (The SEC issued a similar warning in an OCIE Risk Alert in 2017.)  The Department Staff stated that accessing a client’s custodial account using the client’s password or username will be considered a “dishonest and unethical business practice” in Pennsylvania and a potential custody violation.  Federally registered investment advisers should also pay attention, since the states can go after them for violations of state securities laws that amount to fraud.


Given all the attention given to this issue in 2017, advisers should have identified accounts with SLOAs and determined whether they would need to comply with the Custody Rule’s surprise exam requirement or follow the seven steps set forth in the IAA No-Action letter to avoid custody.  This year advisers should review and test the policies and procedures adopted to deal with the issues raised by SLOAs.  Finally, because it may only occur infrequently, remind employees and provide training to reinforce the process for handling inadvertent custody.


In 2018, there were at least three cases targeting Chief Compliance Officers (“CCOs”), and at least one other case brought by FINRA punishing a CEO for failing to provide adequate support to a CCO.  The SEC will hold individuals accountable for wrongdoing, including those at the top of the corporate hierarchy.[1]   As outlined in a speech, former director of the SEC’s Division of Enforcement, Andrew Ceresney, the SEC will bring cases against CCOs where they have:

  • directly engaged in misconduct unrelated to the compliance function,
  • attempted to obstruct or mislead the SEC staff, or
  • exhibited a wholesale failure to carry out their responsibilities as CCOs.

In 2018, there were at least four significant cases where regulators found CCOs and other corporate officers personally liable.  The first case illustrates how CCOs can get into trouble when they directly engage in the misconduct.  In its complaint against Ameratex Energy, Inc., et al, the SEC charged three oil and gas companies and their executives for engaging in a fraudulent scheme to raise $11.7 million for drilling projects.  The SEC charged the corporate compliance officer personally, alleging that he knew what was going on and assisted in the sales efforts by drafting and reviewing communications to investors and filing Forms D with incorrect information.  The CCO played a key role in the scheme, according to the complaint, by “adding an aura of legitimacy.”

There were two other cases involving chief compliance officers that illustrated the “wholesale failure” to carry out the responsibilities of a CCO.  In the first case, the SEC upheld a FINRA disciplinary against CCO Thaddeus J. North, former chief compliance officer for FINRA member with Southridge Investment Group LLC.   Mr. North was fined $40,000 and suspended from all principal and supervisory capacities for two months for failing to perform some basic compliance blocking and tackling, including correspondence review.  He also missed a significant regulatory issue completely, despite the presence of a large red flag.  The second case involved a chief compliance officer who had notice, help, and resources to fix known issues and completely dropped the ball.  The SEC banned the CCO from acting in a supervisory or compliance capacity in the financial services industry.  The firm’s president was also sanctioned because he was aware of the issues, but did nothing to fix them.

In the final case, FINRA suspended the president of the broker-dealer for his failure to supervise an inexperienced chief compliance officer.  The case boiled down to the president’s failure to address two compliance issues.  First, the CCO was unable to perform adequate trade monitoring, even with the help of a consultant.  The CCO asked for help, but the president apparently failed to follow up to confirm that she could perform the task.  The president also failed to take any action after the CCO told him that a registered representative was engaging in excessive trading of Class A mutual fund shares.


The lessons here are simple.  Chief compliance officers have to take the job seriously.  Failure to understand your obligations can result in being barred from the industry.  Another important takeaway is that CCOs should ask for help when they need it, preferably in writing.  A compliance officer is not expected to know everything, nor is he or she expected to expend super-herculean efforts to get the job done.  Like any other employee, a CCO should have the tools and resources necessary to do the job.  Firm management is responsible for providing these resources.

The CCO cannot implement an effective compliance program or demonstrate a strong culture of compliance without the support and assistance of the firm’s management.  While it is a balancing act in any department to find the right level of resources, firm management should understand that ignoring requests for additional resources could result in personal fines and sanctions.


More than 20 states have adopted laws addressing financial exploitation of seniors and vulnerable clients.  Some require investment advisers to report suspected or actual financial exploitation of seniors and vulnerable clients to state adult protective services agencies.  FINRA has already adopted rule changes aimed at protecting senior investors, and the SEC has included protection of senior investors in its exam priorities since 2017.


Understand your client base and what portion is represented by individuals 62 and over (both in terms of the number of clients and associated AUM).  Review or consider developing policies and procedures that address issues associated with senior clients including (but not limited to):

  • when the adviser feels a senior client may have possible diminished capacity or competence,
  • handling of client requests to change beneficiaries, powers of attorney or trustee on accounts,
  • requesting a trusted contact from senior clients,
  • assisting clients in their transition from employment to retired status,
  • handling of client accounts upon a client’s death,
  • frequency of client communication, and
  • training on topics impacting senior clients.

Review adult protective services statutes in the states where you do business.  Some states require broker-dealers and investment advisers to report suspected abuse, and impose misdemeanor penalties for failure to report.  Check out this 50 state survey of laws governing senior and vulnerable investors prepared by Bressler Amery Ross.


With the constant media reports of cyber-attacks and security breaches, including an EDGAR breach announced in late 2017, it’s no wonder that OCIE’s examination priorities for 2019 include cybersecurity protection.  OCIE will be focusing on cybersecurity practices at investment advisers with multiple branch offices, including those that have recently merged with other investment advisers.  OCIE will also be looking at access rights and controls, data loss prevention, vendor management, training, and incident response.


Review the SEC’s case against Voya Financial Advisors, Inc. (“VFA”) and learn from VFA’s mistakes.  Over a six-day period in 2016, fraudsters impersonating VFA representatives were able to get VFA’s technical support staff to reset their passwords.   According to the SEC, the intruders were then able to access the personal information of at least 5,600 of VFA’s customers and account information for three customers. Although no unauthorized transfers resulted from the attack, VFA still had to pay a $1 million fine and retain an independent compliance consultant to review its policies and procedures to ensure compliance with Regulation S-P and Regulation S-ID.  Show this case to your IT experts and ask whether your firm might have similar vulnerabilities.

This case serves as a reminder to advisers to update their policies and procedures in light of material changes to the business.  In this case, VFA had not substantively updated its Identity Theft Protection Program since 2009, despite material changes in its business model, including the use of contractors.  The SEC also found that VFA’s cybersecurity procedures were not designed to apply to the systems used by the independent contractors, leaving gaps that were exploited by the intruders.   A full discussion of all the “do’s and don’ts” is beyond the scope of this article, so check out the Recommended Resources listed at the end of this article under “Cybersecurity.”


OCIE is interested in index funds that track custom-built indexes; smaller, low trading volume ETFs; mutual funds with underperformance relative to peer groups; and funds with high allocations to securitized assets (such as certain securitized loans, credit card receivables, or mortgage-backed securities).  OCIE is also looking at advisers that are either new to mutual funds or that provide ‘side-by-side’ advice to mutual funds and private funds.  Review the Risk Alert for the specific focus areas for the funds and advisers.

OCIE wants to better understand how risks and conflicts are reviewed by advisers to investment companies, how they are disclosed to the board and shareholders, and how policies, procedures and controls are developed to address them.  The risk alert also identifies key areas examiners plan to address within each category:

  • Index funds with custom indexes have unique relationships with index providers and OCIE plans to explore these arrangements, associated conflicts, and potential disclosure issues. OCIE will also be looking at the portfolio management process.
  • Advisers to low trading volume ETFs should expect questions about the market risks associated with low trading volume, how those risks are managed and the depth of the disclosures provided to a fund’s shareholders and the board. This includes board monitoring of the fund as a going concern, as well as ensuring that any liquidation and/or delisting procedures receive proper oversight.
  • Advisers with underperforming funds relative to peers will likely receive requests for detailed information about portfolio management and allocation decisions. They will also likely be asked whether the investments comply with disclosures in the fund documents, and whether fund marketing materials accurately portray the fund’s objectives, policies, risks, and/or restrictions, and use of leverage.
  • Funds heavily invested in securitized assets should expect questions related to risk disclosures, portfolio management, and valuation processes. OCIE will also be scrutinizing ongoing monitoring and board oversight of these activities.
  • Side-by-side management is of perennial interest in examinations given the conflicts – especially those associated with allocation and brokerage decisions when fee schedules between the vehicles differ.

This risk alert provides advisers with advance notice of OCIE’s focus areas, instead of issuing guidance after the fact of commonly identified deficiencies.  We recommend that advisers be proactive in reviewing their compliance programs (including their risk assessment and testing program).  While the SEC’s decision to share this insight in advance of this exam initiative should be welcomed by advisers as a planning resource, it also seems reasonable that the SEC will also expect more of them.


The SEC has revised the compliance date for classification, highly liquid investment minimum, and board approval, as well as related reporting requirements of Part D on Form N-LIQUID and liquidity disclosures on Form N-PORT under the Investment Company Act of 1940.  The revised compliance date is now June 1, 2019 for larger entities (extended from December 1, 2018), and December 1, 2019 for smaller entities (extended from June 1, 2019).


  • Advisers to funds should check out the SEC FAQ site (listed in the Resources section below) while developing their LRMPs.
  • Boilerplate LRMPs will not be effective, practical or in the spirit of the regulation. Firms should spend the time to tailor their programs to reflect the types of securities traded by their funds and typical shareholder flow patterns.  Taking a thoughtful approach on the front end should result in a more effective and practical LRMP.
  • Fund managers should consider:
    • whether to assign liquidity categories on a security-level basis, or to assign them by asset class. Firms considering the latter will need to define and apply “asset class” consistently and meaningfully to ensure the definition established rings true to the investment strategy, including the size of positions typically taken by the fund.   They will also be required to monitor securities for “reasonable exceptions” and potentially to classify or reclassify securities that fall outside the definition of its asset class.[2]
    • the impact that any shareholder cash flow patterns or trends when establishing the minimum percent of highly liquid securities permitted.
    • Fund of funds should consider the look through related requirements in the rule so that they are prepared to determine when they will (or will not) look through the liquidity of underlying fund holdings vs. liquidity of the fund investment as a whole.
  • Advisers should consider other sources of fund liquidity when evaluating liquidity management, including standard overdraft provisions and/or lines of credit.
  • Firms should consider whether to implement a pre-trade review of liquidity. Although there is no requirement to assign a holding to a liquidity bucket ahead of trading, the rule requires firms to implement reasonable policies and procedures to avoid investing more than 15% of the portfolio in illiquid securities.  Check out the FAQ for procedures suggested by the SEC to assist in this determination.
  • RIA operations will need to be able to generate sufficient data to monitor the liquidity characteristics of its holdings and satisfy new regulatory reporting requirements. For example, firms assigning liquidity buckets by “asset class” may systematically refresh these liquidity buckets in a monthly batch process.  Firms will still need procedures to monitor for “reasonable exceptions” (described in the Interim Release[3]) and firms are encouraged to develop a list of the types of events that would prompt a mid-month reclassification.  Advisers will also need a way to monitor the 15% illiquid level and the selected highly liquid investment minimum on a regular basis because they will be required to quickly report breaches to the board and the SEC using Form N-LIQUID.

Takeaways for Private Fund Advisers:  Cayman Island Funds & Changes from CIMA

Beneficial Ownership Register Compliance:  Private equity and hedge funds in the Cayman Islands should confirm with their administrators whether they are subject to the Cayman Islands Monetary Authority (“CIMA”) new beneficial ownership register rule.  The Cayman Islands government passed two laws outlining this new beneficial ownership regime, The Beneficial Ownership (Companies) (Amendment) Regulations, 2018, and The Beneficial Ownership (Limited Liability Companies) (Amendment) Regulations, 2018 (the “‘Amending Laws”).  Companies and limited liability companies incorporated or registered in the Cayman Islands are required to maintain a beneficial ownership register at their Cayman Islands-registered offices (or appointed service provider), unless an exemption applies.

CIMA AML Regulations.  Cayman Island fund managers should confirm that their policies are in compliance with the Cayman Islands Monetary Authority’s (“CIMA’s”) anti-money laundering regulations.  CIMA made a number of key changes in 2018 to expand the reach of its AML regulations to unregulated entities, including private equity, venture capital and real estate funds, insurance entities, and finance vehicles like collateralized loan obligations (“CLOs”).

We hope you found these recommendations helpful.  We welcome your feedback!

Recommended resources:

Conflicts of Interest and Best Execution

Cross Trading Cases

Valuation Cases

Cash Solicitation Rule

Electronic Communications

Custody Rule

CCO and Executive Liability

Protecting Seniors and Vulnerable Investors


Mutual Fund and ETF Advisers

Liquidity Rule Compliance


[1] See page 2, Division of Enforcement Annual Report 2018; and page 11, Division of Enforcement Annual Report 2017.

[2] See Interim Release at page 6.

[3] Id.

Photo Credit: Photo by NordWood Themes on Unsplash

Written by:

Hardin Compliance Consulting LLC

Hardin Compliance Consulting LLC on:

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JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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