A recent SEC enforcement case illustrates again how an investment adviser’s failure to timely respond to SEC requests for books and records during an inspections and examinations can turn into an enforcement action. The outcome should not surprise. With the limited facts available, one wonders why the SEC’s restraint in bringing an action lasted as long as it did. There are, however, a few important takeaways for advisers and their compliance professionals.
The case, In the Matter of EM Capital Management, LLC and Seth Richard Freeman, involves the SEC issuing an order instituting administrative and cease-and-desist proceedings against an adviser and its principal for failing, over a year and a half period, to furnish books and records to the Commission’s Investment Adviser/Investment Company examination staff. The requested records included financial statements, e-mails, and documents relating to the adviser and a mutual fund it managed.
After repeatedly promising to produce the documents following repeated requests from the examination staff, the adviser ultimately did comply. However, by then, presumably, the Commision’s patience had finally worn thin, and the staff notified the adviser and its principal that the SEC was considering enforcement action against him and the firm.
The Commission alleged that the adviser violated, and the principal aided and abetted violations of Section 204 of the Advisers Act and Rule 204-2, thereunder. These regulations and rules require SEC-registered investment advisers to produce required books and records to the Commission’s staff. The adviser and principal were censured and jointly ordered to pay a civil penalty of $20,000.
The lessons imparted from this and similar cases brought by the Commission are at least three-fold:
- Never refuse to produce documents that are subject to the SEC’s inspection powers. i.e. generally, with a few exceptions, Rule 204-2(e) of the Investment Advisers Act of 1940 (“Advisers Act”) requires advisers to maintain their books and records for at least five years, and maintained in an appropriate office of the adviser for the first two years.
- Delaying tactics is not a good idea since it probably raise more red flags for the examination staff that’s some rule violation may have occured. If additional time is needed to comply bring requests to the staff’s attention and make sure it and any extensions granted are documented.
- Despite the lesser sanctions in this case, advisers and their compliance personnel should never forget that, under Section 217 of the Advisers Act, willful failure to permit the SEC to inspect books and records is a felony, punishable by a fine of not more than $10,000 and imprisonment up to five years or both.
- Nothing stated above should suggest that advisers may not seek to limit the scope of books and records sought. This includes, where appropriate, asserting relevant privileges against producing certain documents, seeking clarifications about unclear or open-ended requests, and objecting to burdensome and unreasonable production.