Back on July 25, 2011, we blogged about the importance attached to chief compliance officers’ understanding the regulatory framework and guiding principles for what it is they do. As we said then,
“Rule Number One
: Your Job is to “Administer” the Compliance Program: The CCO’s job function as mandated by Rule 206(4)-7 (the “rule”) is limited to “administering” the investment adviser’s compliance policies and procedures. While the rule contains no explicit definition for what the term administering means, the rule makes one thing clear, it is the adviser who is legally required to “adopt and implement written policies and procedures reasonably designed to prevent violation” of the Investment Advisers Act of 1940. What this means is that you are not the guarantor that your adviser will not experience a compliance failure. Nor is it necessarily true, from a supervisory perspective, that you are responsible for the compliance failures of others in the firm. To the contrary, the failure of a compliance program to find and remedy compliance problems can just as easily be viewed as evidence that the adviser’s compliance program, including its policies and procedures, are not effective.
This doesn’t mean that compliance personnel of an adviser can’t be sanctioned for not properly supervising employees. Of course, they can be and are sanctioned. However, the fact that you are a CCO does
not, in and of itself, give you supervisory responsibility over your adviser’s personnel. In short, if you’re not supervising other advisory personnel, and you limit supervisory responsibility to persons who are part of the compliance staff, the Adopting Release to the rule makes clear that you aren’t necessarily liable for the supervisory lapses of your adviser. ……..”
The signficance of this rule is born out in an article appearing in AdviserOne entitled “” makes reference to a report prepared by the law firm of Sutherland Asbill tracking recent regulatory actions involving CCOs and in-house attorneys facing disciplinary actions covering everything from lapses involving inadequate supervisory systems, anti-money-laundering (AML) compliance program, inadequate due diligence in private offerings, books and records violations to lying to regulators.
Understanding and remembering first what your role is as CCO or in-house counsel may prove to be the only thing separating you and a regulatory sanction.
As part of its National Exam Program, the SEC’s Office of Compliance and Examinations (“OCIE”) has just mailed a letter to senior executives and Chief Compliance Officers of newly-registered investment advisers apprising them of what practices they can expect to be examined.
While the letter primarily concerns risk-based exams of advisers to private funds that registered with the SEC after July 21, 2011, the significance the OCIE examination staff is attaching to certain adviser practices in these so-called “Presence Exams” should be weighed by all advisers regardless – whether they’re new or a private fund. As we have discussed these and other areas of exam focus in previous posts, OCIE’s hot areas referenced, and set for review, include:
- Marketing materials;
- Portfolio management;
- Conflicts of interest;
- Safety of Client Assets; and
- Valuation of Client holdings and assessment of fees based on valuations.
Through the SEC’s lens, each of these topics is being viewed in three phases: engagement; examination; and reporting.
Add a few recent SEC actions against hedge funds that include a hedge fund manager running a $37 million Ponzi scheme; a former director in a compensation scheme that netted hundreds of thousands of dollars in undisclosed income; co-founders of a Chicago-area investment firm misleading investors and supervisory failures resulting in penalties of more than $1 million; a private fund manager and his investment advisory firm taking more than $17 million in losses in a Ponzi-like scheme.
And now add to that two even more recent cases: a hedge fund manager over the course of several years invest the majority of a fund’s assets in a private business owned by the manager’s affiliated company; and a manager who used his hedge fund as a ruse to misappropriate over $550,000 from a retired schoolteacher, and you get the math of why SEC hedge fund oversight will continue to intensify. Given many of the enforcement actions in the past two years are the result of fairly egregous conduct, the SEC Office of Investor Education and Advocacy’s most recent Investor Bulletin is still instructive, not simply for investors, but also, for the hedge funds who serve them.
The bulletin warns investors about continued hedge fund-related misconduct in the markets while mentioning these cases as examples of why investors need to take precaution before making hedge fund investments. While there’s nothing surprising about precautions and recommendations that include
- a need for investors to understand a hedge fund’s investment strategy and its use of leverage and speculative techniques before making the investment;
- a need for investors to evaluate a hedge fund manager’s potential conflicts of interest and take other steps to research those managing the fund;
the bulletin highlights the need for registered advisers to hedge funds to pay particular attention to conflicts of interest when making investment decisions, particularly when determining how investment opportunities are allocated. Advisers also have to be wary about engaging in principal transactions when managing hedge funds — for example, engaging in rebalancing or other types of cross trades. Among others, they should concern themselves with the valuations assigned to particular securities, and calculations of all fees and other income sources.
For hedge fund advisers, these bulletins, whose primary aim is educating the investing public, are another way to take a deeper look for potential conflicts that may lead to violations and to understand the emphasis SEC examiners and regulators will place on such conflicts.