Recent Regulatory Actions Against Advisers

SEC v. Visium Asset Management LP

Visium has agreed to settle charges related to asset mismarking and insider trading by its managed hedge funds and portfolio managers who inflated the value of securities held by hedge funds it advised causing the funds to falsely inflate returns, overstate aggregate net asset value, and pay excess fees. Based on confidential information from a former FDA official working as a paid consultant to Visium, certain Visium portfolio managers traded in the securities of pharmaceutical companies in advance of two generic drug approvals by the U.S. Food and Drug Administration. Among other violations, the SEC found that Visium failed to enforce its own valuation and insider trading policies and procedures that might have prevented mispricing and the insider trading.

SEC Report: Broker-Dealers’ Handling of Material NonPublic Information

The Securities and Exchange Commission, through the Office of Compliance Inspections and Examinations (OCIE), has announced and issued a staff report aimed at aiding broker-dealers in safeguarding confidential information from misuse.

Taken from examinations of broker-dealers conducted by the SEC, FINRA, and the NYSE’s Division of Market Regulation, the report reflects strengths and weaknesses OCIE identified in examining how broker-dealers handle material nonpublic information to prevent improper uses.  Misuses might include insider trading, trading during a tender offer in violation of SEC rules or through issuance of a research report based on  material non-public information.

When facing the challenge of designing their controls, the report may be particularly beneficial to broker-dealers dually-registered as investment advisers or who are closely integrated with an affiliated investment adviser.

Carefully pointing out that no one size fits all, and from a “best practices” perspective, OCIE found two practices among some broker-dealers to be particularly effective. The first involved those included broker-dealers who developed processes that differentiated between types of material non-public information based on the source of information coming from within the broker-dealer or the nature (e.g., transaction type) of the information.  In certain instances, the report notes, ” broker-dealers were creating tailored exception reports that took into account the different characteristics of the information.”

The second practice involves broker-dealers who expanded the scope of instruments that they reviewed for potential material non-public information misuse  by traders.  Included are credit default swaps, equity or total return swaps, loans, components of pooled securities such as unit investment trusts and exchange traded funds, warrants, and bond options.

In addition to defining  many of the sources of material non-public information, the report also provides an overview of broker-dealers’ controls structure and their controls – both in terms of  public versus private side of transactions, and in how firms limit and prevent authorized and unauthorized access (physical and technical barriers) to such information.

A look at SEC litigation releases, in the past few six months alone, show no shortage of cases involving misuse of material nonpublic information being either filed or settled.   As the report states, look for OCIE to continue reviewing broker-dealer practices in these areas in future examinations.