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86

Enforcement Trends and Themes

Lori A. Martin

WilmerHale, LLP

© Copyright 2017. All rights reserved. This outline or portions thereof may be used in other materials published by the authors.

Ms. Martin is a partner in the Securities and Litigation and Controversy Departments of Wilmer Hale Cutler Pickering Hale and Dorr, LLP, resident in the Firm’s New York Office. Before joining WilmerHale, Ms. Martin was First Vice President and Assistant General Counsel of Merrill Lynch Investment Managers, L.P. (“MLIM”), the former asset management arm of Merrill Lynch, where she oversaw the litigation and regulatory practice of MLIM.

If you find this article helpful, you can learn more about the subject by going to www.pli.edu to view the on demand program or segment for which it was written.

 

 

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I. Introduction

In its 2016 fiscal year, the Securities and Exchange Commission brought 868 enforcement actions and obtained judgments and orders requiring payment of approximately $4 billion in civil penalties and disgorgement. See Press Release, SEC Announces Enforcement Results for FY 2016, available at https://www.sec.gov/news/pressrelease/2016-212.html.

The SEC’s 2016 enforcement actions include a number of first-of-their-kind cases, including an action against “a private equity adviser for acting as an unregistered broker.” Id. Among other enforcement initiatives, the SEC continued to focus on gatekeepers such as accountants, attorneys and compliance professionals, holding them accountable for failing to uncover misconduct by investment advisers and investment companies, as well as for failures to comply with professional standards. Id.

The SEC’s Office of the Whistleblower received nearly 4,200 tips. 2016 Annual Report to Congress on the Dodd-Frank Whistleblower Program, at 23, available at https://www.sec.gov/whistleblower/reportspubs/annual-reports/owb-annual-report-2016.pdf. It awarded a total of approximately $57 million to 13 whistleblowers in 2016.

SEC Chair Mary Jo White discussed the SEC’s new enforcement model. Chair White emphasized the “need to be trial-ready,” which accompanies the SEC’s “new ‘investigate to litigate’ philosophy.” Chair White identified strong remedies, individual liability, and the use of data analytics and whistleblowers as keys to continued success in protecting investors. Chair White addressed the need for strong enforcement of the securities laws as a deterrent to future violations, stating that the SEC will “increasingly focus attention on areas and cases that have a strong and immediate impact on problematic industry norms and practices.” See Speeches, Remarks at the New York University School of Law Program on Corporate Compliance and Enforcement, available at http://www.sec.gov/news/speech/chair-white-speech-new-york-university-111816.html (Nov. 18, 2016).

[A] Enforcement Actions

The SEC’s 2016 enforcement actions against investment advisers, investment companies and gatekeepers for funds included first-of-their-kind cases with important lessons for investment managers and funds. The high profile cases in the investment management industry include enforcement actions against:

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an investment adviser, Pacific Investment Management Company (PIMCO), for allegedly inaccurately valuing certain odd lot securities in one of its first actively-managed exchange-traded funds, and misleading investors about the performance of the fund;

a private equity firm, WL Ross & Co. LLC, for allegedly failing to disclose how it allocated transaction fees it received to the WL Ross funds, which resulted in the adviser receiving over $10 million in additional fees;

an investment adviser, Raymond James & Associates, Inc., for allegedly failing to obtain information about whether the commissions paid by clients when “trading away” were for material amounts over the “wrap fees” paid by clients;

three AIG-owned dual registered broker-dealers and investment advisers which, in addition to other violations, failed to monitor “wrap fee” or fee-based advisory accounts for “reverse churning,” as was required under the compliance policies and procedures; and

a municipal advisor, Central States Capital Markets, for failing to disclose that part of its advisory team worked for the company underwriting the municipal bonds, and that those members of the team received commissions as municipal advisors and as underwriters.

[B] Judicial Decisions

In December 2016, the Supreme Court issued an important decision involving the requirements for tippee/tipper liability established by Dirks v. SEC, 463 U.S. 646 (1983). The Supreme Court held that a personal benefit includes a tipper’s benefit from “making a gift of confidential information to a trading relative,” and resolved a split between the Second and Ninth Circuits as to what constitutes a personal benefit. Salman v. United States, 580 U.S.___(2016).

On September 1, 2011, Bassam Yocoub Salman was indicted on five counts involving insider trading. Salman received insider tips from his future brother-in-law, Maher Kara, who worked at Citigroup and shared information about upcoming mergers and acquisitions with his older broker, Mounir Kara. Mounir Kara traded on the tips from his older brother, Maher Kara, and shared the tips with Salman. Salman reaped nearly $1 million in profits from trading on the tips.

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At Salman’s trial, the court applied the Dirks liability standard, which held that an insider could not provide an outsider with information for “an improper purpose of exploiting the information for their personal gain.” “[T]he test is whether the insider personally will benefit, directly or indirectly, from his disclosure.” In Dirks, the Supreme Court defined benefit to include “a pecuniary gain or a reputational benefit that will translate into future earnings.” Salman appealed the verdict, arguing that the Ninth Circuit should apply the Second Circuit’s personal benefit standard as articulated by U.S. v. Newman, which held that a tippee can only be liable for insider trading if he has knowledge that the corporate insider (the tipper) obtained a personal benefit, and that the government may not “prove the receipt of a personal benefit by the mere fact of a friendship, particularly of a casual or social nature.” 773 F.3d 438 (2d Cir. 2014).

The Supreme Court overruled Newman to the extent it required a tipper to receive a pecuniary benefit, or its equivalent, to be found to have breached the tippers fiduciary duty when tipping a friend or family member. The Court upheld the Ninth Circuit’s decision, finding that “Dirks … easily resolves the narrow issue presented here,” and explained “that when a tipper gives inside information to “a trading relative or friend,” a jury can infer that the tipper meant to provide the equivalent of a cash gift.” The Court added that Salman acquired Maher’s duty of trust and confidence to Citigroup when he received confidential information with the “full knowledge that it had been improperly disclosed.”

[C] Looking Forward: 2017 Priorities

What examination and enforcement activity should advisers and funds anticipate in 2017? As was the case in 2016, the SEC “will further enhance its ability to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.” U.S. Securities and Exchange Commission, Fiscal Year 2016 Agency Financial Report (“2016 Annual Report”), at 30, available at https://www.sec.gov/about/secpar/secafr2016.pdf.

The Office of Compliance Inspections and Examinations (OCIE) and the Division of Enforcement will continue to focus on “current and emerging high priority areas, and on leveraging cutting-edge technology and analytics.” To facilitate that, the SEC will prioritize its ability to analyze large volumes of data, to prosecute market structure cases, and to enhance its capacity to investigate financial reporting and accounting fraud. OCIE plans to invest in its technology

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and data analysis tools to “promote efficiencies and expand the breath of examinations.” 2016 Annual Report, at 31-32.

OCIE seeks to examine additional investment advisers who have never been examined. OCIE will also continue to encourage improvements in compliance programs throughout the industry. U.S. Securities and Exchange Commission, Fiscal Year 2017 Congressional Budget Justification (“2017 Budget”), at 64-66, available at https://www.sec.gov/about/reports/secfy17congbudgjust.pdf.

The SEC intends to develop rules encouraging more robust risk management practices for investment funds and investment advisers. In maintaining its focus on investment advisers, Enforcement will continue to work proactively to detect “issues concerning valuation, performance, fees and expenses, compensation, advertising, governance, portfolio management, and compliance policies and controls.” OCIE will maintain its interest in “protecting investors’ retirement accounts” by examining advisers’ sales and marketing practices. 2016 Annual Report, at 30-32.

II. Statutory Basis of SEC Enforcement Proceedings Against Investment Advisers

[A] Investment Company Act of 1940

[1]

The SEC’s authority to investigate and bring enforcement proceedings alleging violations of the Investment Company Act of 1940 (the “Investment Company Act”) is set forth in Section 9. 15 U.S.C. § 80a-9.

[a]

Section 9(b)(1) of the Investment Company Act authorizes the Commission to institute a proceeding, and after notice and opportunity for hearing, temporarily suspend or permanently bar from serving as an investment adviser any person who willfully makes or causes to be made “in any registration statement, application or report filed with the Commission under this title any statement which was at the time and in light of the circumstances under which it was made false or misleading with respect to any material fact, or has omitted to state in any such registration statement, application, or report any material fact which was required to be stated therein.” 15 U.S.C. § 80a-9(b)(1).

[b]

Sections 9(b)(2) and 9(b)(3) of the Investment Company Act grant the SEC authority to impose the same remedies

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against any person who willfully violates any provision of the Securities Act of 1933 (the “Securities Act”), the Securities Exchange Act of 1934 (the “Securities Exchange Act” or the “Exchange Act”), or the Investment Company Act, or who willfully aids and abets any such violation. 15 U.S.C. §§ 80a-9(b)(2-3).

[2]

In addition to permanent or temporary suspension or a cease and desist order discussed below, Section 9(d) of the Investment Company Act authorizes the SEC to impose civil monetary penalties. 15 U.S.C. § 80a-9(d). (The authority to impose civil monetary penalties in addition to a cease and desist order was added by the Dodd-Frank Act.) The penalties are capped according to a tier system, depending on the nature of the respondent, the nature of the allegation, and the nature of the harm. 15 U.S.C. §§ 80a-9(d)(2)(A-C).

[3]

Section 9(e) authorizes the SEC to seek and issue an order for disgorgement and accounting, including reasonable interest. 15 U.S.C. § 80a-9(e).

[4]

Section 9(f) authorizes the Commission to enter a cease and desist order to prevent future violations, and to require the respondent to take steps to affect future compliance with SEC rules. 15 U.S.C. § 80a-9(f).

[5]

The imposition of any and all authorized penalties and remedies is dependent on a preliminary finding by the Commission that the order is appropriate and in the public interest. 15 U.S.C. § 80a-9(b).

[6]

Section 9 authorizes the SEC to initiate proceedings against advisers for, inter alia, breach of fiduciary duty in connection with advisory compensation (Section 36(a)), material misrepresentations in offering documents (Section 34); participation in an illegal joint arrangement (as defined by Rule 17d-1), and books and records violations (Section 31).

[7]

See also Section 42, which authorizes the SEC to determine to proceed by civil action, rather than administrative proceeding before the Commission, as provided in Section 42(a), to seek injunctions as provided in Section 42(d), and to seek certain tiered monetary penalties in civil actions as provided in Section 42(e). 15 U.S.C. § 80a-41. The Dodd-Frank Act added Section 48(b), which gives the SEC authority to seek injunctions or monetary

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penalties in civil actions with respect to aiders and abettors. 15 U.S.C. § 80a-47.

[B] Investment Advisers Act of 1940

[1]

The SEC’s authority to enforce violations of the Investment Advisers Act of 1940 (the “Investment Advisers Act” or the “Advisers Act”) is set forth in Section 203, which closely parallels Section 9 of the Investment Company Act. 15 U.S.C. § 80b-3.

[2]

Section 203(e) of the Investment Advisers Act authorizes the Commission to institute a proceeding, and after notice and opportunity for hearing, temporarily suspend the operations of an investment adviser (for a period not to exceed 12 months), permanently revoke an investment adviser’s registration, or censure an adviser or any person associated with an adviser who willfully makes or causes to be made “in any registration statement, application or report filed with the Commission under this title any statement which was at the time and in light of the circumstances under which it was made false or misleading with respect to any material fact, or has omitted to state in any such registration statement, application, or report any material fact which was required to be stated therein.” 15 U.S.C. § 80b-3(e)(1).

[3]

Sections 203(e)(5) and 203(e)(6) of the Investment Advisers Act authorize the SEC to impose the same remedies against any adviser or associated person who willfully violates any provision of the Securities Act, the Exchange Act, the Investment Company Act, or the Investment Advisers Act, or an adviser or associated person who aids and abets any such violation. 15 U.S.C. §§ 80b-3(e)(5-6).

[4]

In addition to permanent or temporary suspension or a cease and desist order discussed below, Section 203(i) of the Investment Advisers Act authorizes the SEC to impose civil monetary penalties. 15 U.S.C. § 80b-3(i). (The authority to impose civil monetary penalties in addition to a cease and desist order was added by the Dodd-Frank Act.) The penalties are capped according to a tier system, depending on the nature of the respondent, the nature of the allegation, and the nature of the harm. 15 U.S.C. §§ 80b-3(e)(2)(A-C).

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[5]

Section 203(j) of the Investment Advisers Act authorizes the SEC to seek and issue an order for disgorgement and accounting, including reasonable interest. 15 U.S.C. § 80b-3(j).

[6]

Section 203(k) of the Investment Advisers Act authorizes the Commission to enter a cease and desist order to prevent future violations, and to require the respondent to take steps to effect future compliance with SEC rules. 15 U.S.C. § 80b-3(k).

[7]

The imposition of any and all authorized penalties and remedies is dependent on a preliminary finding by the Commission that the order is appropriate and in the public interest. 15 U.S.C. § 80b-3(e).

[8]

Section 203 of the Investment Advisers Act authorizes the SEC to initiate proceedings against advisers for, inter alia, failing to prevent misuse of nonpublic information (Section 204A), material misrepresentations in public disclosures (Section 207), books and records violations (Section 204), inappropriate advisory fees (Section 205), and for engaging in fraudulent activity towards a client or prospective client (Section 206). In relevant part, the Investment Advisers Act’s anti-fraud provision reads, “It shall be unlawful for any investment adviser, by use of the mails or any means or instrumentality of interstate commerce, directly or indirectly (1) to employ any device, scheme, or artifice to defraud any client or prospective client; (2) to engage in any transaction, practice, or course of business which operates as a fraud or deceit upon any client or prospective client.” 15 U.S.C. § 80b-6.

[9]

The Investment Advisers Act does not expressly create a fiduciary duty on behalf of investment advisers. In 1963, however, the Supreme Court interpreted Section 206 of the Investment Advisers Act as “reflect[ing] Congressional recognition ‘of the delicate fiduciary nature of an investment advisory relationship’ as well as congressional intent to eliminate, or at least to expose, all conflicts of interest which might incline an investment adviser – consciously or unconsciously – to render advice which was not disinterested.” SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 191-192 (1963) (emphasis supplied). See also Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 17 (1979) (“§206 establishes ‘federal fiduciary standards’”). Consistent with this interpretation, many of the SEC’s

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enforcement actions against investment advisers rely, at least in part, on breach of fiduciary duty.

[10]

See also Section 209(c), which authorizes the SEC to seek injunctions with respect to persons violating the Investment Advisers Act and aiders and abettors of violations, and Section 209(d) which authorizes the SEC to seek certain tiered monetary penalties in civil actions against persons violating such Act. The Dodd-Frank Act added Section 209(f) that essentially gives the SEC authority to seek monetary penalties in civil actions with respect to aiders and abettors. 15 U.S.C. § 80b-9.

[C] The Securities Act of 1933

[1]

Section 8A of the Securities Act authorizes the Commission to enter a cease and desist order “[i]f the Commission finds, after notice and opportunity for hearing, that any person is violating, has violated, or is about to violate any provision of [the Securities Act], or any rule or regulation thereunder.” 15 U.S.C. § 77h-1(a).

[2]

In an enforcement proceeding initiated pursuant to Section 8A, the Commission may also enter an order for disgorgement or accounting. 15 U.S.C. § 77h-1(e).

[3]

The Commission has relied on Section 8A of the Securities Act in proceedings against mutual fund distributors for fraudulent conduct in the offer and sale of securities of registered investment companies, prohibited by Section 17(a) of the Securities Act. See In the Matter of Bank of America Capital Mgmt., LLC, BACAP Distributors, LLC, and Banc of America Securities, LLC, Investment Advisers Act Rel. No. 2355 (Feb. 9, 2005) (issuing a cease and desist order pursuant to Section 8A of the Securities Act against a mutual fund distributor for violating Section 17(a) of the Securities Act).

[D] The Securities Exchange Act of 1934

[1]

Section 21C of the Securities Exchange Act authorizes the Commission to enter a cease and desist order “[i]f the Commission finds, after notice and opportunity for hearing, that any person is violating, has violated, or is about to violate any provision of [the Exchange Act], or any rule or regulation thereunder.” 15 U.S.C. § 78u-3(a).

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[a]

In an enforcement proceeding initiated pursuant to Section 21C, the Commission may also enter an order for disgorgement or accounting. 15 U.S.C. § 78u-3(e). Pursuant to Section 21C, the Commission may institute proceedings to remedy violations of Section 10(b) of the Exchange Act and Rule 10b-5, which prohibit fraudulent conduct in the purchase and sale of securities.

[b]

The Commission has relied on Section 21C of the Securities Exchange Act in proceedings against entities that assisted market timers in evading advisers’ anti-market timing policies. See In the Matter of Veras Capital Master Fund, VEY Partners Master Fund, Veras Investment Partners, LLC, Kevin D. Larson, and James R. McBride, Investment Advisers Act Rel. No. 2466 (Sept. 22, 2009) (issuing a cease and desist order pursuant to Section 21C of the Securities Act against an a hedge fund, its traders and its adviser for deliberately masking their timing activities, in violation of Section 10(b)(5) of the Exchange Act).

[2]

Section 15(b) of the Securities Exchange Act authorizes the SEC to pursue enforcement actions against registered broker-dealers. 15 U.S.C. § 78o(b)(4).

[a]

Section 15 authorizes the Commission to institute a proceeding, and after notice and opportunity for hearing, temporarily suspend the operations of a broker-dealer or associated person (for a period not to exceed 12 months), permanently revoke a broker-dealer’s license, or censure a broker-dealer that willfully makes or causes to be made “in any registration statement, application or report filed with the Commission under this title any statement which was at the time and in light of the circumstances under which it was made false or misleading with respect to any material fact, or has omitted to state in any such registration statement, application, or report any material fact which was required to be stated therein.” Id.

[b]

Section 15 also authorizes the SEC to impose the same remedies against any broker or associated person who willfully violates any provision of the Securities Act, the Exchange Act, the Investment Company Act, or the Investment Advisers Act, or a broker-dealer or associated person who aids and abets any such violation. Id.

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[c]

The Commission has relied on Section 15(b) of the Securities Exchange Act in proceedings against registered dealers of mutual fund shares that allegedly disseminated misleading information or otherwise committed fraud in the inducement of the purchase or sale of mutual fund shares. See In the Matter of Bank of America Capital Mgmt., LLC, BACAP Distributors, LLC, and Banc of America Securities, LLC, Investment Advisers Act Rel. No. 2355 (Feb. 9, 2005) (issuing a cease and desist order pursuant to Section 15(b) of the Exchange Act against a mutual fund distributor for violating Section 15(c) of the Securities Act).

III. State Enforcement Authority

[A] Savings Clauses in Federal Securities Statutes

The federal securities laws include a number of savings clauses expressly preserving state authority to pursue fraud actions against securities law violators. The savings clauses recognize concurrent state jurisdiction to investigate and prosecute violations of state corporate and securities laws in conjunction with their federal counterparts. These federal savings clauses are discussed below, as well as the state blue sky and related statutes that have been the subject of significant state enforcement actions against mutual fund advisers and distributors.

Enforcement activity by state regulators is likely to increase over time. NASAA now estimates that there are 17,000 investment advisers registered with state securities regulators, as compared to 10,500 investment advisers registered with the SEC. North American Securities Administrators 2012/2013 Report at 25, available at http://www.nasaa.org/wp-content/uploads/2011/08/NASAA-2012-2013-Report.pdf.

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[1]

The National Securities Markets Improvement Act of 1996

In 1996, Congress enacted The National Securities Markets Improvement Act (“NSMIA”) to “further advance the development of national securities markets and eliminate the costs and burdens of duplicative and unnecessary regulation by, as a general rule, designating the Federal government as the exclusive regulator of national offerings of securities.” H.R. Rep. No. 104-622, 104th Cong., 2nd Sess. 1996 at 16 (emphasis supplied). Among other things, NSMIA amended provisions of the Securities Act, the Securities Exchange Act, the Trust Indenture Act of 1939, the Investment Company Act, and the Investment Advisers Act. 15 U.S.C. § 77r. NSMIA expressly exempted covered securities, as defined in the statute, from certain provisions of state law, including state registration. Covered securities include: (1) nationally traded securities; (2) securities sold to qualified purchasers; (3) securities issued in certain exempt offerings; and (4) federally registered investment companies (or mutual funds). Id. at § 77r(b)(1-4).

[2]

Investment Advisers Supervision Coordination Act

The Investment Advisers Supervision Coordination Act preserved state authority to prosecute securities fraud by investment advisers. It states in relevant part: “Nothing in this subsection shall prohibit the securities commission (or any agency or office performing like functions) of any State from investigating and bringing enforcement actions with respect to fraud or deceit against an investment adviser or person associated with an investment adviser.” 15 U.S.C. § 80b-3a(b)(2) (emphasis supplied).

[3]

Broker-Dealer Actions

NSMIA also preserved state authority to prosecute securities fraud by broker-dealers. The savings clause appears in Section 18(c)(1) of the Securities Act and states: “Consistent with this section, the securities commission (or agency or office performing like functions) of any State shall retain jurisdiction under the laws of such State to investigate and bring enforcement actions with respect to fraud or deceit, or unlawful conduct by a broker or dealer, in connection with securities or securities transactions.” 15 U.S.C. § 77r(c)(1). Section 28(a) of the Exchange Act states that “the rights and remedies provided by this title shall be in

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addition to any and all other rights and remedies that may exist at law or in equity.” 15 U.S.C. § 78bb(a).

For a general discussion of these savings clauses and their limits on state enforcement activity against mutual fund advisers, see Lori A. Martin and Cristina Alger, State Regulators and the Mutual Fund Industry, 39 The Review of Securities and Commodities Regulation 219 (Nov. 15, 2006).

[B] New York

The New York Martin Act, N.Y. Gen. Bus. Law. Art. 23-A, § 352 et seq., authorizes the New York Attorney General (“NYAG”) to investigate any “fraudulent practice” in connection with “the issuance, exchange, purchase, sale, promotion, negotiation, advertisement, investment advice or distribution within or from [New York] state.” Id. at § 352-51.

[1]

The Act conveys substantial investigatory powers, including broad subpoena authority. Id. at § 352-2.

[2]

The Act further authorizes the NYAG to seek injunctive relief and restitution upon satisfaction that any person, corporation or partnership has engaged in or is about to engage in a fraudulent practice (Id. at § 353), and authorizes criminal prosecution for fraud in connection with the purchase or sale of most securities. (Id. at § 352c-6).

[3]

The Act defines “fraudulent practices” broadly and is liberally construed. See, e.g., People v. F.H. Smith, Co., 243 N.Y.S. 446 (1930) (“The [Martin Act] is remedial in its nature, and was passed to protect the inexperienced, confiding and credulous investor, and . . . should, therefore, be liberally and sympathetically construed in order that its beneficial purpose may, so far as possible, be attained”).

[4]

The Martin Act remained dormant as an enforcement tool for nearly three-quarters of a century after the passage of the Securities Act and Exchange Act, with federal agencies generally charged with policing securities violations. NYAG Eliot Spitzer resuscitated the Act as an investigatory and prosecutorial mechanism in connection with his challenge to alleged conflicts of interests between research and investment banking divisions at leading Wall Street Firms. Statement By Attorney General Eliot Spitzer Regarding the “Global Resolution” of Wall Street

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Investigations (Apr. 23, 2003), available at www.oag.state.ny.us/press/statements/global_resolution.html. Similarly, the Martin Act provided the basis for the NYAG’s investigation into the mutual fund industry’s trading practices, which resulted in more than 21 proceedings and $3.9 billion in restitution for investors between 2004 and 2006. Press Release of NYAG (Dec. 21, 2006), available at www.oag.state.ny.us/press/2006/dec/dec21b_06.html.

NYAG Andrew Cuomo also filed a number of lawsuits alleging violations of New York State’s Martin Act. For example, the NYAG included Martin Act claims in lawsuits against (1) Charles Schwab & Co. charging the firm with falsely representing auction rate securities as liquid, short-term investments without discussing the risks, (2) Ivy Asset Management LLC and former Ivy officers for deliberately misleading clients about investments tied to Bernard L. Madoff, and (3) Steven L. Rattner, alleging he paid kickbacks in order to obtain $150 million in investments in a private equity firm from the New York State Common Retirement Fund. See Press Releases of NYAG (August 17, 2009, May 11, 2010 and November 18, 2010), available at www.ag.ny.gov/media_center/2009/aug/aug17a_09.htm; www.ag.ny.gov/media_center/2010/may/may11a_10.html; and www.ag.ny.gov/media_center/2010/nov/nov18a_10.html, respectively.

Current NYAG Eric Schniederman also has relied on the Martin Act as the basis for a lawsuit against J.P. Morgan Securities and related entities as successors to Bear Stearns, alleging they misled investors regarding evaluation of the quality of mortgage loans backing residential mortgage-backed securities (RMBS) prior to Bear Stearns’ collapse. See Press Release of NYAG (Oct. 2, 2012), available at www.ag.ny.gov/press-release/ag-schneiderman-sues-jpmorgan-fraudulent-residential-mortgage-backed-securities-issued. This suit was the first case from the state and federal RMBS Working Group formed by President Obama in 2012. For later SEC actions in coordination with the RMBS Working Group, see the approximately $300 million and $120 million settlements with J.P. Morgan and Credit Suisse, respectively, announced by the SEC in November, 2012. See Press Release, SEC Charges J.P. Morgan and Credit Suisse With Misleading Investors in RMBS Offerings (Nov. 16, 2012), available at www.sec.gov/news/press/2012/2012-233.htm.

 

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[C] California

In 2003, the State of California amended its Government code to grant the CA Attorney General substantially similar authority to that enjoyed by the NYAG under the Martin Act. CA Gov’t Code §§ 1258-1259. The law grants the California Attorney General broad investigatory and subpoena power, and the power to pursue actions for disgorgement, restitution and injunctive relief for violations of the state’s securities laws. Id.

[D] Massachusetts

Massachusetts state law authorizes the Secretary of the Commonwealth to “make such public or private investigations within or outside of the commonwealth as he deems necessary to determine whether any person has violated or is about to violate any provision [of the Massachusetts Securities Act].” Mass. Gen. Laws Ch. 110A § 407. The Secretary’s investigatory authority includes the authority to compel testimony and document production and to issue subpoenas. Id. The Secretary may also issue cease and desist orders, impose administrative fines, and seek disgorgement and accounting. Id. at § 407A.

[E] Colorado

IV. Federal Enforcement Proceedings Against Advisers and Funds

This Section discusses historical enforcement themes in actions concerning the investment advisory and mutual fund industry. At core, these actions typically involve a misstatement by an adviser or a failure to disclose conflicts, sometimes without an intention to deceive. Many cases also involve a breach of fiduciary duty by the adviser such that investors were not treated fairly, or a breach of the adviser’s duty of care in handling investor assets.

 

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[A] Preferential Allocation of Investment Opportunities

Investment advisers have an obligation to treat their clients fairly, including in the allocation of investment opportunities. The SEC has brought enforcement actions against advisers that breached this duty by, e.g., holding an investment in a suspense account and allocating it after its profitability has been determined. The statutory basis for these actions frequently includes Section 17(a) of the Securities Act and Section 206 of the Investment Advisers Act.

[1]

In In the Matter of Thomas Richards, Investment Advisers Act Rel. No. 1495 (June 6, 1995), a mutual fund portfolio manager who also managed a portion of his company’s Employee Profit Sharing Plan (“PSP”), allegedly placed purchase and sale orders without simultaneous or prior designation of the account for which the orders were placed. By holding the investments in a suspense account, the adviser could determine whether orders would be profitable before allocating them to advisory accounts. The adviser’s disproportionate allocation of profitable trades to the PSP at the expense of mutual funds managed by the same portfolio manager violated the manager’s obligation of loyalty under Section 206 of the Investment Advisers Act. Without admitting or denying the violation, the respondent agreed to a cease and desist order prohibiting future violations of Section 206. See also In the Matter of Edward F. Gobora, Investment Advisers Act Rel. No. 2042 (July 10, 2002) (allegedly delaying execution of foreign trades and allocating profitable trades to preferred customers); In the Matter of Kemper Financial Services, Investment Advisers Act Rel. No. 1387 (Oct. 20, 1993) (failure to supervise portfolio manager that disproportionately allocated profitable trades to one advisory client over mutual funds managed by the adviser).

[2]

In In the Matter of Robert Burstein, Investment Advisers Act Rel. No. 1511 (July 28, 1995), a portfolio manager managed both a pension fund and a bank in its securities trading. The SEC alleged that the manager directed same-day purchases and sales of US Treasury Bonds without prior identification of the account for which the manager was trading. The portfolio manager allegedly allocated profitable transactions to the bank while identifying the pension fund as the original purchaser if the transaction resulted in a loss. Among other penalties, the SEC barred the respondent from association with any broker-dealer,

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investment adviser, investment company or municipal securities dealer for breach of his fiduciary duty under Section 206.

[3]

In In the Matter of Melhado, Flynn & Assoc., Inc., Investment Advisers Act Rel. No. 2593 (Feb. 26, 2007), an adviser allegedly misallocated profitable trades to its proprietary trading account and purchases that declined in value to the accounts of its advisory clients. The SEC charged that the trade allocations violated Section 10(b) of the Securities Exchange Act, Rule 10b-5, and Section 206 of the Investment Advisers Act. The SEC further charged that altering trade tickets to conceal the trade misallocations violated Section 204 of the Investment Advisers Act and Section 17(a) of the Securities Exchange Act, requiring that advisers maintain accurate books and records in connection with the purchase and sale of securities.

[4]

In In the Matter of James C. Dawson, Admin. Proc. File No. 3-13579, Lit. Rel. No. 392 (Dec. 18, 2009, amended July 23, 2010), an ALJ barred an unregistered adviser to a hedge fund and three individual accounts from association with any investment adviser based on the following uncontested facts. From April 2003 through October 2005, the adviser secretly cherry-picked profitable trades for his personal account at the expense of his clients by purchasing securities throughout the day and delaying allocation to either his personal account or his clients’ accounts until the end of the day, when he knew whether they had appreciated in value. On July 24, 2009, the United States District Court for the Southern District of New York had enjoined the adviser from future violations of Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, and Sections 206(1) and 206(2) of the Advisers Act; ordered the adviser to disgorge $303,472, plus interest; and ordered him to pay a $100,000 civil penalty. SEC v. Dawson, 08-CV-7841 (S.D.N.Y. Sept. 9, 2008).

[5]

The SEC also has brought actions against advisers that designated accounts for transactions immediately but which allegedly allocated the most favorable transactions to preferred clients.

[a]

In In the Matter of Account Mgmt. Corp., Investment Advisers Act Rel. No. 1529 (Sept. 29, 1995), for example, an adviser allocated “hot IPOs” to accounts typically held by friends or family of the adviser’s management rather than to all advisory clients. The SEC averred that an adviser’s duty of loyalty to each client under Section 206 required

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equitable distribution of shares of favorable investments to all eligible accounts, absent full disclosure that the adviser would use an alternative allocation procedure. The investment adviser’s settlement provided for the payment of civil penalties.

[b]

See also In the Matter of McKenzie Walker Investment Mgmt., Inc. and Richard C. McKenzie, Jr., Investment Advisers Act Rel. No. 1571 (July 16, 1996) (directing disproportionate number of “hot IPO” shares and other profitable trades into performance-based fee accounts at the expense of asset-based fee accounts violated Section 206, and resulted in civil penalties).

[6]

The SEC filed fraud charges against now-bankrupt Sentinel Management Group, Inc. (“Sentinel”) and two of its former executives in SEC v. Sentinel Mgmt. Group, Inc., 1:07-CV-4684 (N.D. Ill.), Lit. Rel. No. 20624 (June 18, 2008). The SEC alleged that Sentinel, a registered investment adviser, promised clients that it would invest their assets in safe, highly-liquid, short-term products, hold their assets in segregated accounts, and that their investments would be redeemable on a same-day basis. Instead, Sentinel appropriated client assets to pursue risky and highly illiquid investments and to secure leveraged trading for the benefit of Sentinel’s house account, owned by Sentinel insiders. The SEC additionally alleged that the insiders fabricated daily updates to clients, misrepresenting the clients’ securities holdings and interest income and failing to disclose the encumbrances incurred on the clients’ assets through Sentinel’s leveraging and borrowing activities. As credit markets tightened, redemption volume increased; because client assets were allegedly tied up in Sentinel’s house account’s leveraging strategy, Sentinel was unable to meet client redemptions, forcing it to suspend redemptions and shortly thereafter file for Chapter 11 bankruptcy. The SEC alleged that Sentinel’s conduct, through its officers, constituted a violation of Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, and Sections 206(1), 206(2) and Section 206(4) of the Investment Advisers Act and Rule 206(4)-2 thereunder. The complaint sought a permanent injunction against all defendants, and also sought disgorgement, interest, and civil penalties against its former executives. On December 17, 2008, Sentinel consented to an injunction

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permanently enjoining it from violating the antifraud provisions of the federal securities laws. See also In the Matter of Altschuler, Melvoin and Glasser LLP and G. Victor Johnson, II, CPA, Investment Advisers Act Rel. No. 3096 (Oct. 4, 2010) for settled proceeding against Sentinel’s auditors and the engagement partner for their role in Sentinel’s custody violations.

[7]

In In the Matter of Ark Asset Mgmt. Co., Inc., the SEC addressed a “cherry-picking” scheme engaged in by a portfolio manager between August 2000 and December 2003. In the Matter of Ark Asset Mgmt., Investment Advisers Act Rel. Nos. 2962 and 3091 (Dec. 14, 2009); In the Matter of Stephen J. Mermelstein, Investment Advisers Act Rel. No. 2961 (Dec. 14, 2009 and Sept. 29, 2010). The portfolio manager allegedly allocated favorable trades to the fund’s proprietary accounts to the detriment of its client accounts. The SEC alleged that Ark profited by $19 million in performance fees by these actions. The portfolio manager and those working for him allegedly failed to record trade allocations between the proprietary and client accounts in violation of Section 204 of the Investment Advisers Act and the adviser misrepresented its trade allocation policy in its Form ADV. The SEC alleged that the adviser’s Chief Operating Officer failed to supervise the portfolio manager, failed to monitor trading patterns, and failed to respond to “red flags of possible wrongdoing.” On December 14, 2009, the SEC filed cease and desist proceedings against the adviser. At the same time, the Chief Operating Officer consented to a settlement with the SEC, agreeing to cooperate with the SEC in its investigation of the adviser. The SEC also suspended the Chief Operating Officer pursuant to Section 203(f) of the Investment Advisers Act for a six-month period and imposed a $50,000 fine. In September 2010, the adviser settled the matter and, among other things, and agreed to disgorgement of $19.8 million (of which the adviser was only required to pay $750,000 since the assets of the adviser’s estate were limited).

[8]

See also Custody of Funds or Securities of Clients by Investment Advisers, Investment Advisers Act Rel. No. 2968, at 3 n.1 (Dec. 30, 2009) (listing 2009 enforcement actions regarding misappropriation).

[9]

In In the Matter of Emil C. Busse, Jr., Investment Advisers Act Rel. No. 3133, (Nov. 22, 2010), the SEC instituted settled cease

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and desist proceedings against Busse, the former head of securities lending for FAF Advisors, Inc., for the improper real-location of numerous loans of securities between a money market fund and bond fund he managed in an effort to artificially increase the net asset value per share (“NAV”) of the bond portfolio. Both funds were vehicles exclusively for the investment of securities lending proceeds for customers of an affiliate of FAF. Busse caused the reallocation of numerous loans of securities from customers invested in the money market portfolio to customers invested in the bond portfolio in an effort to increase the assets in the bond portfolio and its NAV. He did not disclose these reallocations to customers or to his supervisors. Without admitting or denying the allegations, he consented to the entry of an order barring him from association with any broker, dealer, investment adviser, or investment company with the right to reapply after three years, and imposing a civil penalty of $65,000.

[10]

In SEC v. ICP Asset Mgmt., LLC, ICP Securities, LLC, Institutional Credit Partners, LLC, and Thomas C. Priore, 10-CV-4791 (S.D.N.Y. June 21, 2010), Lit. Rel. No. 21563 (June 22, 2010), the SEC charged an investment advisory firm, Thomas Priore, its founder, owner and President, its affiliated broker-dealer, and its holding company with fraudulently managing CDOs, causing substantial losses to the CDOs and allowing Priore and his companies to improperly obtain increased advisory fees and undisclosed profits. The complaint alleged, inter alia, that Priore directed trades for the CDOs at inflated prices, caused certain CDOs to overpay for securities in order to make money for the firm and protect other ICP clients from realizing losses, caused CDOs to make prohibited investments without obtaining necessary approvals, misrepresented investments, and executed undisclosed cash transfers from a hedge fund they managed in order to allow another ICP client to meet the margin calls of one of its creditors.

The complaint alleged numerous securities law violations, including violations of Section 17(a) of the Securities Act, direct and aiding and abetting violations of Section 10(b) of the Securities Exchange Act and Rule 10b-5 thereunder, and direct and aiding and abetting violations of Sections 204, 206(1), (2), (3) and (4) of the Investment Advisers Act and Rules 204-2, 206(4)-7 and 206(4)-8 thereunder.

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Defendants settled the action in September 2012 as follows: Priore and his companies consented, without admitting or denying the allegations, to permanent injunctions from violations of the securities laws they allegedly violated. Priore and his companies were ordered to pay more than $23 million (including payment by Priore and his companies of disgorgement of approximately $800,000 and $14 million, respectively, plus interest, and penalties of approximately $500,000 and $650,000). Priore also consented to a five-year industry bar. Lit. Rel. No. 22477 (Sept. 10, 2012).

[11]

In SEC v. State Street Bank and Trust Company, 1:10-CV-10172 (D. Mass.), Lit. Rel. No. 21408 (Feb. 4, 2010), the SEC charged State Street with securities law violations for misleading investors during the subprime mortgage crisis in 2007 about the extent of subprime mortgage-backed securities held in certain funds under its management, while selectively disclosing more complete information about subprime investments to certain investors. The SEC alleged that State Street marketed its Limited Duration Bond Fund as an “enhanced cash” investment strategy that was an alternative to a money market fund for certain types of investors. By 2007, however, the Fund was almost entirely invested in subprime RMBS and derivatives. The SEC alleged that State Street continued to describe the Fund to prospective and current investors as having better sector diversification than a typical money market fund, while failing to disclose the extent of the Fund’s concentration in subprime investments to investors generally. At the same time, it was providing certain investors with more complete information about the Fund’s subprime concentration and other issues. The SEC alleged that State Street sold the Fund’s most liquid holdings and used the cash it received from these sales to meet the redemption demands of better-informed investors, leaving the Fund and its remaining investors with largely illiquid holdings. Without admitting or denying the allegations of the complaint, State Street consented to the entry of a final judgment ordering it, among other things, to pay a civil penalty of $50 million and disgorgement of over $7 million. State Street also agreed to pay more than $250 million to compensate investors (State Street had already paid over $340 million through settlements of private actions). State Street also agreed to a cease and desist order with respect to Sections

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17(a)(2) and 17(a)(3) of the Securities Act. Rel. No. 9107 (Feb. 4, 2010).

At the same time, State Street agreed to settle charges brought by Secretary of the Commonwealth of Massachusetts, William Galvin, involving the same facts. In the Matter of State Street Bank and Trust Company, Docket No. E-2007-0084 (Mass. Feb. 4, 2010).

[12]

In a related action against two former State Street Corp. executives, an administrative law judge ruled in an initial decision that the executives appropriately highlighted the risks involved in a $2.9 billion fund that was heavily invested in subprime mortgage-related securities, rejecting the SEC’s fraud claims. The ALJ found that letters and other communications drafted by John P. Flannery and James Hopkins in late 2006 and 2007 did not mislead investors about the makeup of the Limited Duration Bond Fund, and that the two acted in the best interest of their clients and the fund. According to the SEC, the fund was marketed as an enhanced cash investment strategy that was as safe as a money market account, but by 2007 was heavily invested in subprime RMBS and derivatives. State Street allegedly continued to describe the fund as less risky than a typical market fund, and selectively disclosed to investors the extent of the fund’s sub-prime investments.

However, the ALJ ruled that Flannery had taken the necessary steps to ensure that communications to investors were accurate, including having State Street’s legal department and other executives review several letters sent to clients. Furthermore, Hopkins made edits to various communications sent to clients but never had authority to make substantive changes that would affect their accuracy, the judge ruled. In March, 2012, the Commission granted the Division of Enforcement’s Petition for Review of the ALJ’s decision, noting that the “proceeding raises important legal and policy issues by presenting us with a case of first impression regarding the applicability of the Supreme Court’s holding in Janus to claims other than those brought pursuant to Exchange Act Rule 10b-5(b). The proceeding also raises the issue of whether investor sophistication is relevant to an analysis of liability under the antifraud provisions of the federal securities laws in a Commission enforcement proceeding.” In the Matter of John P. Flannery and James D. Hopkins, Investment

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Advisers Act Rel. No. 3387 (Mar. 30, 2012); Initial Decision Rel. No. 438 (Oct. 28, 2011); Investment Advisers Act Rel. No. 3094, (Sept. 30, 2010).

The SEC’s Division of Enforcement petitioned for review by the full Commission, which, in a 3-2 decision, found both respondents liable. See In the Matter of John P. Flannery, Investment Advisers Act Rel. No. 3981 (Dec. 15, 2014). The Commission found Hopkins liable under Rule 10b-5(a), (b), and (c) and Section 17(a)(1) of the Securities Act on the ground that he “made” a false statement in a single slide of a Power-Point presentation that he delivered orally to one investor. The Commission found Flannery liable under Section 17(a)(3) of the Securities Act as a result of misstatements in two letters to investors that he was involved in drafting or approving.

In addition to reaching these factbound conclusions, the Commission took the opportunity in Flannery to offer a 15-page commentary on the proper interpretation of Section 10(b), Rule 10b-5, and Section 17(a) after Janus. Most of the Commission’s interpretations were never briefed by the parties, and instead serve as advisory opinions. Some commentators have written that the Commission appeared to be making a bid for Chevron deference from the courts for its interpretations of those provisions, first asserting that there is “ambiguity in Section 10(b), Rule 10b-5, and Section 17(a),”14 and then claiming that its interpretations are “informed by [the agency’s] experience and expertise in administering the securities laws.” See Matthew Martens, et al., “‘We Intend to Resolve the Ambiguities’: The SEC Issues Some Surprising Guidance on Fraud Liability in the Wake of Janus” 47 Securities Regulation & Law Report, 220 (Feb. 2, 2015).

In December 2015, the United States Court of Appeals for the First Circuit reversed a decision by the US Securities and Exchange Commission imposing sanctions against two former employees of State Street Bank and Trust Company. The Commission had found one of the employees liable under Section 17(a)(1) of the Securities Act of 1933, as well as Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. The Commission found the other employee liable under Section 17(a)(3) of the Securities Act. The First Circuit disagreed with the Commission’s interpretation of the facts, held

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that the Commission had abused its discretion, and vacated the findings of liability.

The Commission’s findings against the first employee were based on a presentation that the employee had made to a fund investor in May 2007. The First Circuit assumed that the slide was misleading (the slide depicted an allocation of 55% to asset backed securities when the fund, based on redemptions, had reached nearly 100% in asset backed securities) but noted that “context makes a difference.” The Court found the SEC’s materiality showing was “marginal” in part because State Street made accurate allocation information available to investors upon request. The court also relied upon expert testimony that a typical investor in an unregistered fund would not rely solely on a slide presentation, but would have conducted additional due diligence. Moreover, the investment consultant who claimed to have been misled never requested a sector breakdown or the fund’s financial statements. There was no testimony from actual investors to support a finding of materiality or evidence to suggest that the credit risks posed by asset backed securities were materially different from other mortgage backed securities. For these reasons, the court concluded that any misstatements in the slide had not “significantly altered the ‘total mix’ of information made available.”

The Commission’s decision against the other employee was based on the conclusion that the employee had edited or drafted misleading letters to fund investors. The Commission concluded that the letters were part of a larger effort to convince investors to stay in the fund by concealing the risks of the fund. The court rejected the Commission’s analysis, finding that the decision to sell certain bonds had reduced the risk of the fund and the Commission had “misread the letter.” In the absence of more than one misleading statement, there was no violation of Section 17(a)(3), which requires a course of dealing. Flannery v. SEC., 810 F.3d 1 (1st Cir. Dec. 8, 2015)

[13]

In April 2011, Wells Fargo Securities LLC settled charges stemming from Wachovia Capital Markets LLC’s violation of investor protection rules under the securities laws in connection with two CDOs tied to the performance of RMBS in late 2006 and early 2007. In the Matter of Wells Fargo Securities LLC, Securities Act Rel. No. 9200 (Apr. 5, 2011). Wachovia Capital Markets (since renamed Wells Fargo Securities) allegedly

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charged undisclosed and excessive mark-ups in its sale of preferred shares of a CDO, as the investors unknowingly paid over 70% more than the price at which the equity had been marked for accounting purposes. In another CDO, Wachovia allegedly misrepresented to investors that it acquired assets from affiliates “on an arm’s-length basis” and “at fair market prices” when, in fact, 40 RMBS were transferred from an affiliate at above-market prices. It then transferred these assets at stale prices in order to avoid losses on its own books. The SEC did not find that Wachovia Capital Markets acted improperly otherwise in structuring the CDOs or in the way it described the roles played by those involved in the structuring process. It agreed to pay more than $11 million in disgorgement and penalties to settle the charges. Wells Fargo Securities consented to the entry of an administrative order directing that it cease and desist from committing or causing any violations and any future violations of Section 17(a)(2) and (3) of the Securities Act, and agreed to pay disgorgement of $6.75 million and a penalty of $4.45 million.

[14]

The SEC initiated two proceedings against an investment adviser in January 2014, which charged the adviser with: (1) performing improper cross trades; and (2) failing to promptly disclose to its ERISA clients an error that resulted in an improper allocation of a restricted security.

[a]

In In the Matter of Western Asset Management Co., Investment Advisers Act Rel. No. 3762 (Jan. 27, 2014) (“Western I”), the adviser was charged with failing to adopt adequate policies and procedures to prevent unlawful cross trading in violation of Sections 17(a)(1) and (2) of the Investment Company Act and with failing to supervise a trader who aided and abetted those violations. Section 17(a) prohibits cross trades between registered investment companies and affiliated persons, unless a trader first obtains an exemptive order from the SEC pursuant to Section 17(b). The adviser’s own compliance manuals also largely prohibited its traders from engaging in cross trades. Between 2007 and 2010, the adviser nevertheless engaged in prohibited prearranged trades with dealers’ representatives without an exemptive order. Moreover, the cross-trades were not

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priced appropriately and effectively favored the adviser’s buying clients over its selling clients.

The SEC alleged that the adviser’s compliance systems failed to identify the impermissible cross trading, and that the adviser failed to supervise the trader responsible for the transactions. The trader allegedly ignored a number of red flags. To resolve the matter, the adviser consented to distribute almost $7.5 million to compensate certain clients, to a cease and desist order, to a censure, and to pay a civil penalty of $1 million.

[b]

On the same day, the SEC filed In the Matter of Western Asset Mgmt. Co., Investment Advisers Act Rel. No. 3763 (Jan. 27, 2014) (“Western II”). In Western II, the SEC charged the investment adviser with a failure to disclose to its ERISA clients a coding error in its automated compliance system that resulted in improper allocation of a security that was not ERISA eligible. The adviser was allegedly aware of the improper allocation no later than October 2008, but did not take prompt remedial or corrective action as required by its disclosed “Error Correction Policy.” Shortly thereafter, the adviser conducted its own three-month investigation, during which it determined that there was no “error” within the meaning of the correction policy and opted not to notify the affected clients. The adviser sold the improperly allocated securities in 2009 at prices below par. Ultimately, the adviser failed to notify most of the affected ERISA clients until August 2010 after the sales were executed.

The SEC also charged the adviser with failing to adequately implement its written compliance policies and procedures in violation of Section 206(2) of the Advisers Act. The adviser settled with the SEC and agreed to a cease and desist order, a censure, disgorgement of $8,111,582 and prejudgment interest of $1,508,810, a civil penalty of $1 million, and certain remedial undertakings such as hiring an independent compliance consultant and improvements to recordkeeping.

[15]

In In the Matter of Structured Portfolio Mgmt., LLC, Investment Advisers Act Rel. No. 3906 (Aug. 28, 2014), the SEC charged a hedge fund adviser and affiliated advisers with compliance

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failures, including: failure to disclose a conflict of interest, failure to supervise a portfolio manager, and failure to adopt and implement written policies and procedures to prevent violations of the Advisers Act.

The conflict at issue arose from a situation in which the portfolio manager advised three different funds: one to make a profit and the other two to hedge interest rate risk. The situation allegedly created a potential conflict of interest concerning allocation of purchases amongst the three funds. The advisers’ compliance manual stated that it would allocate trades in a fair and equitable manner and that traders (here, the portfolio manager) were required to complete a trade blotter identifying the funds for which securities were traded. The adviser allegedly did not, however, institute any procedures to confirm that traders actually complied with the manual.

Between 2006 and 2009, concerns were raised several times about the trade allocation among these three funds. Internally, the adviser removed the portfolio manager from trading on behalf of two of the funds in 2006 for a six-month period. In 2008, an independent firm raised similar concerns about trade allocations during a compliance review. One of the funds was closed in 2009 after internal concerns arose again. During this period, the adviser addressed some of these concerns, but did not update any of its written policies or procedures regarding conflicts or inaccurate disclosures.

In the settlement, the adviser consented to a civil penalty of $300,000, a censure, a cease and desist order, and a series of undertakings to improve its compliance structure.

[16]

In June 2015, the SEC announced the first enforcement arising out of a new, data-driven approach to detecting cherry-picking. In In the Matter of Welhouse & Associates, Inc., Investment Advisers Act Rel. No. 4132 (June 29, 2014), the agency charged an investment advisory firm and its individual owner with improperly allocating better-performing options trades to his personal accounts. The owner managed client accounts as well as a small number of personal accounts. He purchased ETF options in an omnibus account, then allocated the purchases later in the day with knowledge of their subsequent performance. The adviser claimed to have allocated trades pro rata. However, the Division of Economic and Risk Analysis ran simulations of the

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adviser’s allocations and found an “infinitesimal” chance that the significantly better performance of his personal accounts could have arisen by chance.

The SEC charged Welhouse with violations of Section 10(b) of the Securities Exchange Act of 1934, Rule 10b-5, Section 206(1) and 206(2) of the Investment Advisers Act. The respondent settled the charges, agreeing to pay a disgorgement of $418,141 with $50,918.60 in prejudgment interest. The adviser also consented to a $300,000 civil penalty and censure. The individual owner was barred from the industry. In the Matter of Welhouse Associates, Inc., Investment Advisers Act Rel. No. 4231 (Oct. 16, 2015).

[B] Usurping Investment Opportunity

The SEC has instituted enforcement proceedings against investment advisers that usurped investment opportunities belonging to a mutual fund.

[1]

In In the Matter of Ronald Speaker and Janus Capital Corp., Investment Advisers Act Rel. No. 1605 (Jan. 13, 1997), for example, a portfolio manager declined to purchase particular debentures on behalf of a fund. He subsequently received a bid for the same debentures at a higher price. The manager purchased the debentures for his personal account and then sold them to the second bidder for a same day profit of $16,000. The SEC contended that having been presented with offers in his capacity as an investment adviser, the fiduciary obligation of loyalty required that the manager take the opportunity to the fund’s shareholders, or a disinterested employee authorized to waive the opportunity on behalf of the fund. The settlement agreement required disgorgement of the manager’s profits and suspension from association with any broker-dealer, investment adviser, investment company or municipal securities dealer.

[2]

See also In the Matter of Joan Conan, Investment Advisers Act Rel. No. 1446 (Sept. 30, 1994) (usurpation of an opportunity by an investment adviser at expense of fund viewed as a violation of the duty of loyalty imposed by Section 206 of the Investment Advisers Act).

[3]

In a case that highlights the SEC’s increased scrutiny of private equity fund managers, In the Matter of Matthew Crisp, Investment

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Advisers Act Rel. No. 3267, Investment Co. Act Rel. No. 29772, (Aug. 29, 2011), the SEC initiated cease-and-desist proceedings against Matthew Crisp, a partner with Adams Street Partners, LLC, a registered investment adviser providing advisory services to private equity funds. The SEC alleges that Crisp exploited undisclosed conflicts of interest for his personal gain, by redirecting an investment opportunity in a portfolio company from the private equity funds managed by his firm to an unregistered investment club, which Crisp jointly owned with a friend; concealing his personal investments and the conflicts of interest associated with his join venture from Adams Street’s compliance department; changing the allocation of interests in the portfolio company for his personal benefit; and demanding a $150,000 “transaction bonus” for his contributions as an outside director to the portfolio company; and ignoring Adams Street’s policies prohibiting employees from receiving personal payments in connection with portfolio company transactions and failed to disclose his receipt of such income. The SEC alleges that Crisp willfully violated, or in the alternative aided and abetted and caused violations of, Sections 206(1), 206(2) and 206(4) of the Advisers Act and Rule 206(4)-8 thereunder, and that he willfully violated Section 10(b) of the Exchange Act and Rule 10b-5 thereunder. This matter was settled in 2012 with Crisp’s agreement to a cease and desist order, an industry bar (with the right to reapply in one year) and payment of approximately $140,000 (approximately $90,000 in disgorgement and a $50,000 penalty). In the Matter of Matthew Crisp, Investment Advisers Act Rel. No. 3452, Investment Co. Act Rel. No. 30187, (Aug. 30, 2012).

[C] Disclosures Relating to Investment Performance, Strategy or Risk

During the technology boom of the 1990s, mutual funds that purchased IPOs reported extraordinary returns. The SEC initiated enforcement proceedings against advisers of several funds for allegedly failing to disclose that their record returns were attributable to the unprecedented success of initial public offerings.

[1]

In In re Van Kampen Investment Advisory Corp., Investment Advisers Act Rel. No. 1819 (Sept. 8, 1999), for example, an incubator fund generated a 62% return in its first year, with a third of the return attributable to its purchase of “hot” IPO shares that the manager flipped in the immediate aftermarket. The marketing materials for the fund allegedly failed to disclose the impact of IPOs on the fund’s performance, rendering the fund’s offering documents misleading under Section 34(b) of the Investment Company Act (prohibiting materially misleading information in fund prospectuses) and Section 206 of the Investment Advisers Act. The settlement agreement provided for censure of the investment adviser and its Chief Investment Officer and the payment of civil penalties.

[2]

See alsoIn re The Dreyfus Corp., Investment Advisers Act Rel. No. 1870 (May 10, 2000) (censuring and fining an investment adviser for allegedly failing to disclose the impact of IPOs on fund performance, notwithstanding prospectus disclosures that the fund participated in a significant number of IPOs, had a small asset base, and that the investment in IPOs could inflate performance).

[3]

As funds responded to market volatility in 2008, the SEC showed renewed and intensifying interest in performance representations. At the same time, the SEC’s interest expanded to relate to misrepresentations regarding portfolio composition and risks.

In SEC v. Marquez, CA. No. 08-CIV-4773 (S.D.N.Y.), Lit. Rel. No. 20595A (May 22, 2008, amended June 5, 2008), the SEC filed a civil injunctive action in the U.S. District Court for the Southern District of New York against the portfolio manager and principal of a hedge fund for alleged misrepresentations relating to the fund’s performance. The SEC’s complaint alleged that from 1996 until 2001 portfolio manager and his partners concealed the fund’s mounting trading losses from current and prospective investors. The SEC additionally alleged that, beginning in 1999, the fund, with portfolio manager’s knowledge,

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created an accounting firm to issue and certify sham audits of the fund’s performance and distributed fabricated audit opinions by the firm attesting to the accuracy and truthfulness of the fund’s financial statements. This information allegedly created the appearance that the fund had achieved modest, steady growth, enabling the fund to attract millions of dollars in new capital. Although the portfolio manager dissociated himself from the hedge fund approximately four years before the SEC discovered the alleged conduct, the SEC asserted that he did not disclose the fund’s continuing scheme. Without admitting or denying the SEC’s allegations, the portfolio manager consented to the final entry of judgment, an injunction from future violations of Section 17(a) of the Securities Act, and Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, and a bar from association with any broker, dealer, or investment adviser. The portfolio manager had previously pled guilty to one count of criminal conspiracy for his conduct related to the hedge fund and was sentenced to fifty-one months in prison and ordered to pay $6,259,650 in criminal restitution.

[4]

See also In the Matter of Don Warner Reinhard, Initial Decision (Feb. 12, 2009), Supplemental Initial Decision (June 1, 2010), and Opinion of the Commission – Investment Adviser Proc., File No. 3-13280, Rel. No. 63720 (Jan. 14, 2011) (barring an adviser from association with any broker, dealer or investment adviser for misrepresenting risks associated with collateralized mortgage obligations purchased on behalf of clients and a hedge fund managed by the adviser).

[5]

In In the Matter of Bahram A. Jafari and Mountain Resources, Inc., Investment Advisers Act Rel. No. 2966 (Dec. 28, 2009), the President of a company that invested shareholder and customer capital in a proprietary options trading program settled a claim relating to the alleged sale of unregistered shares in the company. The SEC alleged that the President did not file a registration statement for the offer or sale of the company’s shares under Section 5 of the Securities Act and failed to register the company as an Investment Company under Section 7 of the Investment Company Act. The SEC also alleged that the President misrepresented the company’s performance in offering documents and through fabricated account statements that showed that the company generated positive returns from 1999 through

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2003. In actuality, the President’s trades had produced an average loss of 52% in the ten brokerage accounts through which he made his trades, and he ultimately lost 100% of investors’ funds. Without admitting or denying wrongdoing, the President consented to entry of a cease and desist order for any violations or future violations of Section 203(f) of the Investment Advisers Act, Sections 9(b), 9(f), and 7(a) of the Investment Company Act, as well as Sections 5(a), 5(c), and 17(a) of the Securities Act, and Section 10(b) and Rule 10b-5 of the Exchange Act. The SEC also barred the President from associating, in any capacity, with an investment adviser.

[6]

In In the Matter of Cornerstone Capital Mgmt., Inc., and Laura Jean Kent, Investment Advisers Act Rel. No. 2855 (Mar. 20, 2009), an investment adviser and its president settled a claim that the investment adviser misrepresented investment performance and received a management fee based on inflated prices of severely impaired investments. The SEC charged the adviser with violations of Sections 206(1) and 206(2) of the Investment Advisers Act. Without admitting or denying the allegations, the adviser and its President settled with the SEC agreeing to censure, a cease and desist order from further violations of the Investment Advisers Act, and disgorgement of $335,758.

[7]

In SEC v. Neil V. Moody and Christopher D. Moody, 8:10-CV-0053-T-33TBM (M.D. Fla.), Lit. Rel. No. 21506 (Apr. 26, 2010), the SEC entered judgments of permanent injunction and other relief against two hedge fund managers who allegedly distributed materials to investors that overstated the historical returns and asset values of three hedge funds they managed and controlled. The complaint also alleged that the defendants disseminated to investors and prospective investors offering materials, account statements, and newsletters that misrepresented the hedge funds’ historical investment returns and overstated their asset values by almost $160 million. The judgments enjoin the defendants from violation of Section 17(a) of the Securities Act, Section 10(b) and Rule 10b-5 of the Securities Exchange Act, and Section 206(4) and Rule 206(4)-8 of the Investment Advisers Act. The judgments set the issues of disgorgement and civil penalties for later determination by the Court upon motion by the Commission.

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[8]

In SEC v. Neal R. Greenberg, Lit. Rel. No. 21852, 1:11-CV-00313-JKL (D. Col. Feb. 11, 2011), the SEC brought a civil action against the principal of two SEC-registered investment advisers with breach of fiduciary duty and fraud. According to order, the principal served as Chief Executive Officer of an adviser whose clients were primarily conservative, older individuals. He also served as head portfolio manager for an affiliated adviser that managed a family of hedge funds which used leverage and concentrated in a small number of investments. In addition, he was the principal of a registered broker-dealer, and a substantial majority of the individual advisory clients invested in the hedge funds on his recommendation. The hedge funds suffered substantial losses as a result of their investments in third-party funds that were involved in two separate fraudulent schemes, including the Madoff fraud. Among the SEC’s allegations were that the principal made numerous misleading representations about the hedge funds (many of which included “Safety” in their name), by telling investors and prospective investors that the funds provided substantial diversification and liquidity, had minimal risk, could safely make up their entire investment portfolio and utilized leverage in a manner that did not significantly increase fund risks – representations contradicted by disclosures in the funds’ offering memoranda; the hedge fund investments were unsuitable for many of the investors; and the hedge funds’ fee disclosure was misleading as it failed to disclose that when one fund invested in an affiliated fund, investors bore performance and management fees on the leveraged portion of their investment. See also In the Matter of Neal R. Greenberg, Securities Exchange Act Rel. No. 63932, Investment Advisers Act Rel. No. 3079 (Feb. 8, 2010) (settling administrative proceedings against Greenberg and barring him from association with any broker, dealer, or investment adviser).

[9]

In an action brought against an investment adviser that follows a quantitative investment strategy, the SEC instituted settled administrative proceedings against three AXA Rosenberg entities (“AXA”) arising from an error in the computer code of the quantitative investment model it used to manage client assets which disabled a component for managing investment risk. In the Matter of AXA Rosenberg Group LLC, Investment Advisers Act Rel. No. 3149, Investment Co. Act Rel. No. 29574 (Feb. 3, 2011). The SEC alleged that a senior executive at AXA became

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aware of the error in the model’s code, and failed to disclose the error, constituting a material omission in violation of Section 206 of the Advisers Act. In addition, the SEC alleged that the respondents failed to conduct sufficient quality control over the coding process and thus violated Rule 206(4)-7 by failing to have reasonable policies and procedures in place. The respondents agreed to reimburse investors $217 million and pay a $25 million penalty. The SEC separately charged the co-founder of AXA with securities fraud for his role in concealing the error, in willful violation of the anti-fraud provisions of the Investment Advisers Act, Sections 206(1) and 206(2). In the Matter of Barr Rosenberg, Investment Advisers Act Rel. No. 3285, Investment Co. Act Rel. No. 29818 (Sep. 22, 2011). Rosenberg consented to the entry of an SEC order that required him to cease and desist from committing or causing any violations and any future violations of these provisions and pay a $2.5 million penalty.

[10]

The SEC charged a Bay Area hedge fund manager with concealing more than $12 million in investment proceeds that he owed investors in his fund. SEC v. Goldfarb, CV-11-0938-DMR (N.D. Cal. Mar. 1, 2011). The manager allegedly diverted the cash to other entities he controlled, and used investor funds in a bank account for unauthorized personal expenses. The SEC alleged that the manager and the hedge fund were able to carry out their fraud in part because the investment was maintained in a “side pocket” as to which hedge fund investors had limited visibility. A side pocket is a type of account that hedge funds use to separate particular investments that are typically illiquid from the remainder of the investments in the fund. Goldfarb and BCM consented to permanent injunctions against violations of Section 206(1), (2) and (4) of the Investment Advisers Act and to pay disgorgement of $12,112,416 and interest of $1,967,371. Goldfarb also agreed to pay a $130,000 penalty, be barred from associating with any investment adviser or broker with the right to reapply after five years, and be barred from participating in any offering of penny stock.

[11]

The SEC charged Daniel Sholom Frishberg, the president of an investment adviser, Daniel Frishberg Financial Services, Inc. d/b/a DFFS Capital Management, Inc., in connection with two separate promissory note offerings to clients, approving

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unsuitable investments for recommendation to his advisory clients. In addition, he approved investments despite conflicts of interest between himself and DFFS on the one hand and the advisory clients on the other. In particular, he controlled the company that issued the promissory notes. Moreover, the issuer’s poor financial condition made it unlikely that it could pay its promissory-note obligations. Frishberg knew such conflicts had not been disclosed to clients or recklessly disregarded whether such conflicts had been disclosed to clients. He was barred from association with any broker, dealer, investment adviser, municipal securities dealer, or transfer agent. In the Matter of Daniel Sholom Frishberg, Investment Advisers Act No. 3206 (May 16, 2011). A judgment was previously entered against Frishberg permanently enjoining him from future violations of Sections 206(1) and 206(2) of the Advisers Act. SeeSEC v. Daniel Sholom Frishberg, 4:11-CV-1097 (S.D. Tex. Mar. 29, 2011).

[12]

In In re Gualario & Co., LLC, Admin. Proc. File No. 3-14340, Initial Decision Rel. No. 452 (Feb. 14, 2012), the ALJ concluded that an investment adviser and its founder made material representations regarding a fund’s strategy and violated Sections 206(1), (2) and (4) of the Advisers Act and other securities laws. The fund’s offering documents indicated it had a conservative strategy. However after the fund lost money, the adviser attempted to recoup losses by engaging in high-risk options trading. The change in strategy was not disclosed to investors. Sanctions included almost $500,000 in disgorgement plus interest and a penalty of $390,000. The firm’s founder was barred from the industry

[13]

The SEC alleged in In the Matter of Blackwell, Investment Advisers Act No. 3231 (July 6, 2011), that a purported trader sold investments in a phony fixed income trading program by enticing investors with promises of risk-free, guaranteed monthly investment returns as high as 30 percent. He assured investors he was an experienced trader and adviser in a variety of securities and services including hedge funds and international bank instruments. Instead, he spent nearly $3 million in investor money on questionable unrelated business activities as well as such personal expenses as child support, gentlemen’s club entertainment, and purchases of expensive vehicles. He

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also made approximately $500,000 in Ponzi-like payments using money from new investors to pay earlier investors.

[14]

In September 2011, the SEC charged a hedge fund manager with fraudulent use of fund assets. Kowalewski, the CEO and CIO of SJK Investment Management, LLC. (“SJK”), allegedly marketed two “fund of funds” to investors, primarily pension funds, school endowments, hospitals and non-profit foundations. In raising almost $65 million in funds, Kowalewski and SJK made numerous misrepresentations to investors regarding the risk, structure, and suitability of the investments. Rather, they allegedly used the money to “invest” a total of $16.5 million in a new, undisclosed fund wholly controlled by them. They allegedly sent fraudulent monthly account statements to the investors showing fictional returns. SEC v. Kowalewski, Investment Advisers Act No. 3281 (Sept. 19, 2011).

See alsoSEC v. Kowalewski, 1:11-CV-00056-TCB (N.D. Ga. Jan. 6, 2011) (filing a civil injunctive action against Kowalewski and SJK with violations of the federal securities laws for defrauding investors in the hedge funds managed by SJK).

[15]

The SEC filed a civil injunctive action registered investment adviser EagleEye Asset Management, LLC, and its sole principal, Jeffrey A. Liskov. According to the complaint, Liskov made material misrepresentations to advisory clients to induce them to liquidate investments in securities and instead invest the proceeds in foreign currency exchange (“forex”) trading. These investments were not suitable for older clients with conservative investment goals and resulted in losses for clients totaling nearly $4 million. Meanwhile, Liskov and EagleEye profited over $300,000 in performance fees on these investments plus other management fees they collected from clients. SEC v. EagleEye Asset Mgmt., LLC, 11-CV-11576 (D. Mass. Sept. 8, 2011).

[16]

In October, 2011, the SEC obtained an emergency freeze in an enforcement action charging Andrey C. Hicks, a purported hedge fund manager, and Locust Offshore Management, LLC, his investment advisory firm, with fraud in connection with misleading prospective investors about a quantitative hedge fund and diverting investor money to the money manager’s personal bank account. Hicks and his advisory firm allegedly made misrepresentations about his qualifications and the hedge fund’s

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auditor, prime broker/custodian, and corporate status when soliciting investors. The SEC alleged that Hicks obtained at least $1.7 million from 10 investors and may have used some of these funds for personal expenses. SEC v. Hicks, 1:11-CV-11888-RGS (D. Mass. Oct. 31, 2011), Lit. Rel. No. 22141. See alsoU.S. v. Hicks, No. 11-mj-1147-RBC (D. Mass. Oct. 27, 2011) (criminally charging Hicks with committing wire fraud, attempting to commit wire fraud, and aiding and abetting wire fraud, in violation of 18 U.S.C. Sections 1343, 1349, and 2).

[17]

The SEC obtained a temporary restraining order and emergency asset freeze against Imperia Invest IBC for defrauding more than 14,000 investors worldwide, including raising more than $4 million from primarily deaf investors in the U.S. According to the complaint, Imperia defrauded investors by soliciting funds over the internet to purchase viatical settlements claiming unrealistic returns to investors. In addition, Imperia falsely claimed to be licensed and located in the Bahamas and Vanuatu when it was not, claimed to have a relationship with Visa when it did not, and attempted to conceal the identity of its control persons by using an anonymous browser to host its website and establishing off-shore “PayPal”-style bank accounts to conceal the recipient of the investment proceeds. SeeSEC v. Imperia Invest IBC, 2:10-CV-00986-B (D. Utah Oct. 7, 2010). The SEC won a final default judgment on February 14, 2011, and a permanent injunction against Imperia from violating Section 17 of the Securities Act, Sections 5(a) and 5(c) and Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder, and ordering Imperia to pay $15.2 million in disgorgement and interest.

[18]

The SEC filed a civil injunctive action against David B. Welliver and his investment advisory firm, Dblaine Capital. SEC v. Welliver, 0:11-CV-3076 (D. Minn. Oct. 18, 2011). The SEC alleged that defendants entered into an improper agreement with a mutual fund they had created and poured substantial investor assets into an “alternative investment” pursuant to a “quid pro quo” arrangement with a lender. Welliver allegedly misrepresented the value of the investment, violated the mutual fund’s lending restrictions and spent $500,000 of investor funds on personal items. When the fund ultimately proved worthless, Welliver and Dblaine Capital allegedly continued failed to

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disclose the losses to the Fund’s shareholders. See alsoSEC v. Welliver, 0:11-CV-3076 (D. Minn., Oct. 18, 2011).

[19]

In In the Matter of Michael R. Pelosi¸ Admin. Proc. File No. 3-14194, Initial Decision Rel. No. 448 (Jan. 5, 2012), the ALJ found that Pelosi, a portfolio manager of a registered investment adviser whose clients consisted mostly of individuals and families, misrepresented portfolio returns to clients in violation of Sections 206(1) and (2) of the Advisers Act. Pelosi manually calculated performance for his clients, rather than using system generated numbers, his manual calculations generally over-reported positive returns and under-reported negative returns, and he used his manually calculated returns in client letters. Pelosi was ordered to cease and desist from future violations of the above sections of the Advisers Act and to pay a penalty of $60,000. He was also barred from associating with an investment adviser.

[20]

The ALJ’s initial decision in In the Matter of Donald L. Koch and Koch Asset Mgmt., LLC, Admin. Proc. File No. 3-14355, Initial Decision Rel. No. 458 (May 24, 2012), concluded that the investment adviser and its sole employee had engaged in “marking-the-close” transactions in order to increase the reported closing price of thinly-traded securities held in client accounts. These transactions were designed to inflate portfolio performance on monthly account statements. The ALJ concluded that the respondents violated provisions of the Exchange act and Advisers Act Sections 206(1), 206(2), and 206(4) and Rule 206(4)-7. Respondents were ordered to cease and desist from future violations of the Exchange Act and the Advisers Act, to pay a penalty of $75,000 and to disgorge $4,000 plus prejudgment interest. The adviser was censured and the employee was barred from association with an investment adviser.

[21]

In April 2010, the SEC brought an enforcement action against Goldman Sachs & Co. and Fabrice Tourre, one of its Vice Presidents, in connection with the structuring and marketing of a collateralized debt obligation. SEC v. Goldman, Sachs & Co. and Fabrice Tourre, No. 10 CV 3229 (S.D.N.Y. Apr. 16, 2010), Lit. Rel. No. 21489. The complaint alleged that the marketing materials for the CDO represented that the reference portfolio of residential mortgage-backed securities (RMBS) underlying the CDO was selected by a third-party manager with expertise

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in analyzing credit risk in such securities. The SEC alleged that defendants failed to disclose that a large hedge fund with economic interests directly adverse to investors in the CDO played a significant role in the portfolio selection process, then effectively shorted the portfolio it helped select by entering into credit default swaps with Goldman to buy protection on specific layers of the CDO capital structure. The complaint further alleged that Goldman did not disclose the hedge fund’s adverse economic interest or its role in the portfolio selection process in the marketing materials. Goldman and its employee were charged with violations of Section 17(a) of the Securities Act and Section 10(b) of the Exchange Act and Rule 10b-5 thereunder. Relief sought by the SEC included injunctions, disgorgement of profits, and civil penalties.

On July 15, 2010, Goldman, without admitting or denying the allegations, settled the action by consenting to entry of a permanent injunction from violation of Section 17(a) of the Securities Act, payment of $15 million in disgorgement, payment of a record $535 million civil penalty and other remedial action. Lit. Rel. No. 21592 (July 15, 2010). In August 2013, a jury found Tourre liable for making material misleading statements and omissions in the marketing of the CDO. Tourre moved to have the judgment set aside or, in the alternative, for a new trial. Part of Tourre’s motion argued that there was no evidence that he obtained any money or property by the means of the alleged fraud. Section 17(a)(2) required that the SEC prove that Tourre obtained money or property by means of a material misstatement or omission. On January 7, 2014, the district court denied the motion. In rejecting the argument, the district court stated that the evidence adduced at trial showed that he was paid by Goldman Sachs for his work during the time period covering the AC1 transaction and that Tourre’s work on the transaction was within his job responsibilities. “There was no evidence at trial that Tourre would have been paid nothing – or even anything less – had he not engaged in the work he performed on the AC1 transaction. Tourre chose not to put on a case. He could have called a witness to testify that even in the absence of the AC1 transaction his compensation would have been the same. He did not. Under these circumstances, the jury was fully entitled to draw the reasonable inference that Tourre obtained base salary and bonus by means of material misstatements or

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omissions concerning the AC1 transaction, in which he engaged as an employee at Goldman Sachs. Indeed, a contrary inference would not be supported by the record.” (Op. at 8-9.)

[22]

In SEC v. Citigroup Global Markets, Lit. Rel. No. 22134, 11-CV-7387 (S.D.N.Y. Oct.19, 2011), the SEC charged Citigroup’s principal U.S. broker-dealer subsidiary with misleading investors about a $1 billion CDO that Citigroup structured and marketed. The SEC alleged that Citigroup exercised significant influence over the selection of the assets included in the CDO portfolio, and took a proprietary short position against those mortgage-related assets from which it would profit if the assets declined in value. Citigroup did not disclose to investors its role in the asset selection process or that it took a short position against the assets it helped select. Citigroup agreed to settle the SEC’s charges by paying a total of $285 million for alleged violations of Sections 17(a)(2) and (3) of the Securities Act.

On October 27, 2011, Judge Rakoff of the Southern District of New York issued an order questioning the SEC’s proposed settlement. He posed nine questions to the parties, including how a fraud of this nature and magnitude could be the result simply of negligence, why the court should approve a settlement in a case in which the SEC alleges a serious fraud but the defendant neither admits nor denies wrongdoing, and why the penalty was less than one fifth of the one assessed against Goldman Sachs in a similar case. In its response, the SEC defended its settlement on the grounds that it allows the agency to resolve the case in a speedy manner and succeeds in “clearly conveying” that the alleged conduct by Citigroup occurred. The SEC said that the complaint “lays out in detail the alleged facts, Citigroup has paid nearly $300 million as a result, Citigroup has not denied the allegations, and Citigroup’s public statement regarding the settlement focused on the fact that the company has ‘overhauled the risk management function, significantly reduced risk on the balance sheet, and returned to the basics of banking.’”

In a hearing on the proposed settlement, Judge Rakoff, who in 2009 rejected a $33 million settlement against Bank of America and the SEC, sharply questioned the SEC on why the regulator allowed Citigroup to settle the case using boilerplate language in which it neither admits or denies wrongdoing, why

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it only sought $160 million in alleged illicit profits when investors may have lost more than $700 million in the deal.

After Judge Rakoff rejected the settlement and ordered a trial, both Citigroup and the SEC appealed. On June 4, 2014, the Second Circuit vacated and remanded Judge Rakoff’s decision. SEC v. Citigroup Global Mkts., 752 F.3d 285 (2d Cir. 2014) The panel found that Judge Rakoff did not give enough deference to the SEC and that his requirement that truth be established was an abuse of discretion when approving a consent decree. The Second Circuit stated that a district court should look to four factors when assessing a proposed consent decree: “(1) the basic legality of the decree; (2) whether the terms of the decree, including the enforcement mechanism, are clear; (3) whether the consent decree reflects a resolution of the actual claims in the complaint; and (4) whether the consent decree is tainted by improper collusion or corruption of some kind.” Id. at 294-95. While the majority decided it was best to send it back to Judge Rakoff to evaluate the consent decree based on these factors, the concurrence by Judge Lohier stated that remand was unnecessary based on the record. Id. at 298. Furthermore, Judge Lohier believed that “the perceived modesty of monetary penalties” was an insufficient ground to reject the decree. Id.

In June 2013, the SEC announced that it would begin to require the admission of guilt in certain types of civil settlements and that it would depart from the agency’s use of a boilerplate clause that permitted defendants to pay fines without acknowledging liability. Dina ElBoghdady, “SEC to require admissions of guilt in some settlements,” The Washington Post (June 18, 2013), available at http://www.washingtonpost.com/business/economy/sec-to-require-admissions-of-guilt-in-some-settlements/2013/06/18/9eff620c-d87c-11e2-a9f2-42ee3912ae0e_story.html.

Chair Mary Jo White has emphasized that the SEC would rely on its “independent discretion” in making the determination regarding acknowledgment of wrongdoing. She stated: “There are discretionary enforcement and charging judgments” and the federal courts have limited authority to review those judgments. “We recognize that under the law a court can review a settlement, but a court that reviews a settlement that a law enforcement agency like ours enters with a defendant has a more limited task . . . A court reviewing a consent judgment in one of our cases has a narrower focus – making sure that the settlement

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is not ambiguous and that it does not affirmatively harm third parties or impose an undue burden on the court’s own resources. But the core of decision as to whether to seek admissions is a decision for the Commission to make in its best, independent judgment of what should be required.” Speech by Chair Mary Jo White, “The Importance of Independence,” at the 14th Annual A.A. Sommer, Jr. Corporate Securities and Financial Law Lecture, Fordham Law School (Oct. 3, 2013), available at http://www.sec.gov/News/Speech/Detail/Speech/1370539864016#.UsNM0f3ZQ8M.

[23]

The SEC separately settled charges against Credit Suisse’s asset management unit, which served as the collateral manager for the CDO transaction, as well as the Credit Suisse portfolio manager primarily responsible for the transaction, in In re Credit Suisse Alternative Capital, LLC, Investment Advisers Act Rel. No. 3302 (Oct. 19, 2011).

The SEC also charged Brian Stoker, the Citigroup employee primarily responsible for structuring the CDO transaction, in SEC v. Brian H. Stoker, Lit. Rel. No. 22134, 11-CV-7388 (S.D.N.Y. Oct. 19, 2011). As described above, a federal court jury found that the SEC had not proven any of its charges against Stoker.

[24]

In SEC v. Ralph R. Cioffi and Matthew M. Tannin, C.A. No. 082457 (FB) (E.D.N.Y.), Lit. Rel. No. 20625 (June 19, 2008), the SEC charged two former Bear Stearns portfolio managers with misrepresenting the financial state of their two largest hedge funds, which collapsed due to leveraged positions in structured securities in subprime, mortgage-backed securities and derivatives. The SEC averred that Cioffi and Tannin released insufficiently qualified estimates of the funds’ monthly performance, based on only a subset of the funds’ portfolios. The projections allegedly understated the full extent of losses in the funds’ total portfolio. Tannin and Cioffi also allegedly understated the extent of the funds’ subprime exposure; the SEC asserted that performance summaries issued by Tannin and Cioffi reported only a 6% to 8% level of exposure when, in actuality, that figure was approximately 60%. Finally, the SEC asserted that Cioffi and Tannin exaggerated their personal stake in the funds and used their personal fund investments as a selling point to investors. The complaint alleged that Cioffi redeemed more than a third of his

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stake in the hedge fund before its collapse, while he and Tannin continued to tell investors that they were investing in the funds as a means of exhibiting their confidence in their performance. The SEC alleged that Cioffi and Tannin’s conduct violated Section 17(a) of the Securities Act and Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, and sought permanent injunctive relief, disgorgement of illegal profits plus interest and the imposition of civil monetary penalties. In June, 2012, Cioffi and Tannin agreed to settle the charges, without admitting or denying the allegations, and consented to injunctions against violations of Section 17(a)(2) of the Securities Act and payment of $900,000 in disgorgement and $150,000 in civil penalties. Cioffi consented to a three-year industry bar and Tannin consented to a two-year bar. See Lit. Rel. No. 22398 (June 25, 2012).

The U.S. Attorney’s Office conducted a separate, parallel criminal investigation. In 2008, a Grand Jury indicted Cioffi and Tannin on nine counts, including wire fraud and securities fraud, and conspiracy to commit wire and securities fraud. On November 10, 2009, a jury found Cioffi and Tannin not guilty of securities fraud. The jury also found Cioffi not guilty of insider trading.

[25]

In SEC v. Charles Schwab Investment Mgmt., CV-11-0136 EMC (N.D. Cal. Jan. 11, 2011), Lit. Rel. No. 21806, Charles Schwab Investment Management (CSIM) and Charles Schwab & Co., Inc. (CS&Co.) agreed to pay $118 million to settle charges that it misstated the risks of the fund and the extent of redemptions the fund was experiencing, and failed to maintain adequate policies and procedures to prevent the misuse of material, non-public information. The SEC also charged the two entities with deviating from the YieldPlus fund’s concentration policy without obtaining the required shareholder approval. The SEC simultaneously settled administrative proceedings against CSIM and CS&Co. for similar conduct in In the Matter of Charles Schwab Investment Mgmt., No. 9171, Investment Advisers Act Rel. No. 3136, Investment Co. Act Rel. No. 29552 (Jan. 11, 2011), finding that CSIM and CS&Co. willfully violated anti-fraud provisions of the Securities Act, Sections 17(a)(2) and (3); CSIM willfully violated anti-fraud provisions of the Investment Advisers Act, Section 206(4) and Rule 206(4)-8; Schwab Investments willfully violated Section 13(a) of the Investment

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Company Act by deviating from its concentration policy; CSIM willfully aided and abetted and caused the violation; CSIM and CS&Co. willfully aided and abetted and caused violations of the false filings provision of the Investment Company Act, Section 34(b); and CS&Co. violated Section 15(g) (formerly Section 15(f)) of the Securities Exchange Act, and CSIM violated Section 204A of the Advisers Act.

[26]

The SEC also filed actions against two former Schwab executives, alleging that they committed fraud and other securities law violations in connection with the offer, sale and management of the YieldPlus Fund. SeeSEC v. Kimon P. Daifotis and Randall Merk, CV-11-0137 MEJ (N.D. Cal. Jan. 11, 2011). Following the Schwab settlement, Daifotis and Merk also settled, with Daifotis agreeing to an injunction against violations of Section 17(a)(2) of the Securities Act and Section 34(b) of the Investment Company Act and payment of $250,000 in disgorgement and a $75,000 civil penalty, as well as an industry bar (with a right to reapply in three years). Merk consented to an injunction against violations of Sections 206(2) and 206(4) of, and Rule 206(4)-8 under, the Advisers Act and Section 34(b) of the Investment Company Act and payment of a $150,000 civil penalty, as well as a twelve-month industry suspension. See Lit. Rel. Nos. 22415 (July 16, 2012) and 22163 (Nov. 21, 2011).

[27]

In In re OppenheimerFunds, Inc. and OppenheimerFunds Distributor, Inc., Investment Advisers Act Rel. No. 3417, Investment Co. Act Rel. No. 30099 (June 6, 2012), the SEC brought charges against the mutual fund management company and distributor, alleging that two bond funds purchased total return swaps to obtain exposure to commercial mortgage-backed securities (CMBS) without actually buying the securities and these derivatives created substantial leverage in the funds. During the 2008 market crisis, the funds had to sell bonds at a loss into a declining market in order to meet their obligations in connection with the swaps and had to seek to reduce their CMBS exposure. The SEC charged that the funds’ prospectuses did not adequately disclose their use of leverage and that the fund management company and distributor made misleading statements about the funds’ losses. The SEC found violations of Section 34(b) of the Investment Company Act, Sections 17(a)(2) and (3) of the Securities Act and Section 206(4) of, and Rule 206(4)-8 under, the

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Advisers Act. Without admitting or denying the allegations, OppenheimerFunds agreed to payment of over $35 million (consisting of a $24 million penalty and disgorgement of approximately $10 million plus interest), censure and a cease and desist order.

[28]

In July 2012, the SEC charged Mizuho Securities USA and certain former employees in connection with Delphinus CDO 2007-1, as well as the CDO’s collateral management firm and its portfolio manager. The complaint and related administrative proceedings alleged that Mizuho realized that the CDO’s portfolio could not meet a rating agency’s revised criteria for a required rating. It, thus, obtained the required rating by submitting a portfolio with dummy assets to the rating agency and sold the CDO securities based on the misleading ratings. Mizuho consented to an injunction against violations of Sections 17(a)(2) and (3) of the Securities Act, payment of $19 million in disgorgement plus interest and a $115 million penalty. Sanctions against the Mizuho employees included monetary penalties, a one-year industry bar and cease and desist orders. The collateral management firm agreed to payment of approximately $2.2 million in disgorgement plus interest and a $2.2 million penalty, as well as a cease and desist order. The portfolio manager agreed to a $50,000 penalty, a six-month suspension from association with an investment adviser and a cease and desist order. SEC v. Mizuho Securities USA Inc., 12-CV-5550 (RA) (S.D.N.Y. July 18, 2012), Lit. Rel. No. 22417 (July 19, 2012); In the Matter of Alexander V, Rekeda, In the Matter of Xavier Capdepon and Gwen Snorteland, In the Matter of Delaware Asset Adviser and Wei (Alex) Wei, Investment Co. Act Rel. No. 30140, Investment Co. Act Rel. No. 30141 and Investment Advisers Act Rel. No. 3434, respectively (July 18, 2012).

[29]

In SEC v. J.P. Morgan Sec., LLC, 11-CV-4206 (S.D.N.Y.), Lit. Rel. 2011-133 (June 21, 2011), J.P. Morgan Securities LLC settled claims that in structuring and marketing a CDO, it did not adequately disclose that a portion of the assets in the CDO portfolio were selected by a hedge fund, Magnetar Capital LLC, which was poised to benefit if the CDOs defaulted. J.P. Morgan allegedly represented in its marketing materials that the CDO’s portfolio was selected by GSCP (NJ) L.P. (GSC), a registered investment adviser with experience analyzing CDO credit risk.

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J.P. Morgan Securities agreed to settle by consenting to the entry of a final judgment that provides for a permanent injunction from Sections 17(a)(2) and (3) of the Securities Act, and payment of $18.6 million in disgorgement, $2 million in interest and a $133 million penalty, for a total of $153.6 million. The complaint is available at http://www.sec.gov/litigation/complaints/2011/comp-pr2011-131-jpmorgan.pdf. In connection with the same CDO, GSC, the collateral manager, agreed to entry of a cease and desist order with respect to Sections 17(a)(2) and (3) of the Securities Act and Sections 204 and 206(2) of the Advisers Act and related rules. In the Matter of GSCP (NJ), L.P., Investment Advisers Act Rel. No. 3261 (Aug. 25, 2011).

In addition, the SEC charged Edward Steffelin, a managing director at GSC, for allegedly failing to disclose in marketing materials the hedge fund’s role in selection of the collateral, in violation of Sections 17(a)(2) and (3) of the Securities Act and Section 206(2) of the Advisers Act; however, in November, 2012, the SEC agreed to dismiss the charges against Steffelin with prejudice. SeeSEC v. Edward Steffelin, 11-CV 4204 (S.D.N.Y.), Lit. Rel. No. 22008 (June 21, 2011). The SEC charged these cases under statutory provisions for which negligence alone (rather than intentional or even reckless conduct) could constitute a violation.

[30]

In In the Matter of UBS Financial Services Inc. of Puerto Rico, Exchange Act Rel. No. 66893 (May 1, 2012), the SEC alleged that UBS Financial Services Inc. of Puerto Rico misled investors in affiliated closed-end mutual funds that were not exchange-traded by, inter alia, concealing liquidity issues in the secondary market for the funds’ shares and failure to disclose that it controlled the secondary market for the funds’ shares. The consent order alleges that the firm initially increased its inventory of shares of the closed-end funds to support market prices and liquidity but later withdrew its support in order to sell 75% of its inventory of fund shares to investors. The firm settled the SEC’s charges of violations of Section 17(a) of the Securities Act and Section 10(b) and 15(c) of the Exchange Act and Rule 10b-5 by agreeing to a cease and desist order, censure and payment of $26.6 million in disgorgement, interest and penalties.

Two of the firm’s executives were separately charged. See In the Matter of Miguel A. Ferrer and Carlos J. Ortiz, Investment

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Co. Act Rel. No. 30058, May 2, 2012. The ALJ concluded that neither of the executives had violated the federal securities laws. In addressing the aiding and abetting claims, the ALJ concluded that UBS Puerto Rico had not misled investors either. The ALJ opinion states: “UBS PR’s representations in its prospectuses, brochures, and literature to be true. UBS PR made a market in Fund shares to aid liquidity that it was not obligated to do. For a time in 2008 and 2009, the excess of supply over demand caused UBS PR to exercise the right that it had put everyone on notice it had, to cease buying Fund shares into inventory and to reduce share prices to sell inventory. Riskless Fund transactions continued, but the Risk Committee ordered an inventory reduction, which temporarily sidelined UBS PR as a buyer of Fund shares. There is not one bit of evidence that UBS PR, Ferrer, and Ortiz engaged in a course of conduct to mislead or a scheme to mislead investors by hiding or disguising the fact that UBS PR was in a period when it was not buying Fund shares and was reducing Fund share prices.” See In the Matter of Miguel A. Ferrer and Carlos J. Ortiz, Admin. Proc. File No. 3014862, Initial Decision Rel. No. 513 (Oct. 29, 2013). The ALJ decision is available at http://www.sec.gov/alj/aljdec/2013/id513bpm.pdf.

[31]

In September 2014, the SEC brought suit against a high-speed trading firm and its former Chief Operating Officer for violating the net capital rule, which requires broker-dealers maintain sufficient liquid assets or capital. In re Latour Trading LLC, Securities Exchange Act Rel. No. 73125 (Sept. 17, 2014). In this calculation, firms deduct a percentage of the value of its current holdings, called a “haircut.” The Chief Operating Officer, despite lacking experience with this calculation, developed the firm’s approach to the broker inputs to third-party software that would calculate the broker’s net capital. When Appendix A to Rule 15c3-1 was amended, the SEC rejected the firm’s approach to haircuts. However, the firm continued to use the Chief Operating Officer’s methodology resulting in overstatements of its net capital from 2010 to 2011. The firm had large net capital deficiencies during numerous reporting periods during that period, which caused inaccurate records and the filing of inaccurate FOCUS Reports. The firm resolved the proceeding by consenting to the entry of a cease and desist order based on Sections 15(c)(3) and 17(a)(1) of the Exchange Act, a censure,

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and $16 million in civil penalties. The Chief Compliance Officer also paid $150,000 in civil penalties.

[32]

In In the Matter of Guggenheim Partners Investment Management, LLC, Investment Advisers Act Rel. No. 4163 (Aug. 10, 2015), the SEC brought suit against an adviser for both breach of fiduciary duty and fraud under the Adviser’s Act. The adviser allegedly failed to disclose a $50 million loan from an advisory client to one of the firm’s executives. Though multiple senior officials were aware of the loan, none informed the firm’s clients or compliance staff. The order also alleged that the adviser erroneously categorized some investments as “managed assets” when they were not, and consequently charged the client about $6.5 million in improper asset management fees. The SEC charged the adviser with violations of Sections 206(2), 206(4) and 204A of the Investment Advisers Act. The adviser agreed to a $20 million penalty, to retain an independence compliance consultant and to a censure.

[33]

In In the Matter of Alpha Fiduciary Inc., and Arthur T. Doglione, the SEC charged an adivser with distributed to clients and prospective clients of performance advertising that failed to disclose that performance information was hypothetical rather than actual. It claimed returns of up to 58.62%. The advertising referenced certain hypothetical testing but was imprecise and did not specifically inform investors the results were based on back-testing. The firm also failed to implement written compliance policies and procedures to prevent employees from using advertising that violates the Advisers Act. The Order alleges violations of Advisers Act Sections 206(2) and 206(4). To resolve the matter the firm agreed to a series of undertakings which include the retention of a consultant, furnishing customers a corrected ADV and making available certain disclosures to prospective clients for one year. Each Respondent consented to the entry of a cease and desist order based on the Sections cited in the Order and to the entry of a censure. In addition, they will pay a penalty of $250,000. In the Matter of Alpha Fiduciary, Inc., and Arthur T. Doglione, Investment Advisers Act Rel. No. 4283 (Nov. 30, 2015). See also In the Matter of Michael L. Shea, Investment Advisers Act Rel. No. 4284 (Nov. 30, 2015) (vice president and business development director of Alpha

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Fiduciary; he consented to a cease and desist order and agreed to pay a penalty of $25,000).

[34]

In In the Matter of Pacific Investment Management Company, LLC, Investment Advisers Act Rel. No. 4577, Investment Co. Act Rel. No. 32376 (Dec. 1, 2016), the SEC brought charges against an investment adviser for allegedly failing to disclose accurate reasons for the strong initial performance of one of its first actively managed exchange-traded funds. The Commission found that the adviser bought odd lot positions at a discount, but marked them at the price for round lot (non-discounted) positions. This strategy allowed the adviser to report performance based on the difference between the price of the odd lot position and the higher price of the round lot position, without a reasonable basis to believe that the round lot value accurately reflected the odd lot value.

As a result, the adviser overstated the value of the fund. The adviser distributed misleading information related to the reasons for the strong performance of the fund in monthly and annual reports to investors, failed to implement policies and procedures to prevent issues with odd lot pricing, and failed to oversee traders’ decisions related to pricing. The adviser agreed to pay disgorgement of nearly $1.4 million, interest of nearly $200,000, and a penalty of $18.3 million.

[D] Performance-Based Advisory Fees

Section 205 of the Investment Advisers Act generally prohibits investment advisers from charging fees based on capital gains or appreciation of a client’s assets. 15 U.S.C. §80b-5(a). Section 205(b)(2), however, permits investment advisers to enter into advisory contracts providing for performance-based compensation if the fee increases or decreases proportionately with an adviser’s investment performance, as measured against an appropriate index of securities prices over the same period of time. 15 U.S.C. § 80b-5(b)(2).

[1]

Rules 205-1 and Rule 205-2, as well as a series of no-action letters issued by the SEC Staff, relate to the computation of performance fees. 17 C.F.R. § § 275.205-1, 275.205-2. Rule 205-1 states that the investment performance of a mutual fund must be calculated according to the return of the fund based on the change in the fund’s net asset value per share. 17 C.F.R. § 275.205-1.

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[2]

Rule 205-2 defines the “fulcrum fee” as the fee charged when the fund’s performance equals that of the benchmark index over the period of time chosen. Rule 205-2(b) also mandates that the period over which the net asset value of the fund is averaged to calculate the fee must be the same period for which the benchmark index and the investment performance are determined. Thus, under Rule 205-2(b), “the fulcrum fee (i.e., the fixed portion of the fund’s advisory fee) and the performance adjustment (i.e., the performance-based portion of the fund’s advisory fee) must be calculated on the fund’s net asset value averaged over the performance period.” See Jack W. Murphy and Julien Bourgeois, Mutual Fund Performance Fees: Discussion and Observation, 39 The Investment Lawyer, 1, 10 (Nov. 2006) for a general discussion of the SEC’s treatment of fulcrum fees.

[3]

Rule 205-2(c) may permit the period over which the net asset value of the fund is averaged to differ from the period used to calculate the performance adjustment if certain conditions are met. See id.

[4]

In In the Matter of The Dreyfus Corp., Investment Advisers Rel. No. 2549 (Sept. 7, 2006), The Dreyfus Corp. settled an action over its performance-based fees, and reimbursed its mutual funds over $3 million. The SEC alleged that Dreyfus incorrectly calculated its fee by measuring it against its funds’ daily net asset value instead of the averaged asset value of the funds over the 36-month performance period. Thus, when a fund’s assets generally increased and outperformed the benchmark index, the daily net asset value was consistently higher than the fund’s asset value over a 36-month period. Applying the highest performance rate against that inflated value allegedly assured that the adviser received performance-based compensation significantly higher than it would have received had it calculated the fund’s fee in accordance with Section 205 and Rule 205-2(b) of the Investment Advisers Act. Likewise, when a fund’s assets generally decreased and lagged against the benchmark index, its daily net asset value was allegedly lower than the fund’s asset value over a 36-month period. Applying the lowest performance rate against that deflated value resulted in a lower deduction in performance adjustment from its fulcrum fee and provided total performance-based compensation higher than the adviser would have received

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had it calculated the fund’s fee in accordance with Section 205 and Rule 205-2(b) of the Investment Advisers Act.

[5]

The Dreyfus action was part of an industry sweep of performance-based fees. For additional performance fee actions, see In the Matter of Gartmore Mutual Fund Capital Trust, Investment Advisers Act Rel. No. 2548; (Sept. 7, 2006); In the Matter of Kensington Investment Group Inc., Investment Advisers Act Rel. No. 2545 (Sept. 7, 2006); In the Matter of Numeric Investors LLC, Investment Advisers Act Rel. No. 2546 (Sept. 7, 2006); In the Matter of Putnam Investment Mgmt. LLC, Investment Advisers Act Rel. No. 2547 (Sept. 7, 2006).

[E] Wrap Fees

Wrap fee programs allow advisers to provide services for one “wrapped” fee that is not based on the number of transactions in a client’s account. Rule 204-3(f) of the Investment Advisers Act requires that the sponsor of a wrap fee program to prepare a “wrap fee brochure” that explains the adviser’s “wrap fee” program and its sponsor, and requires the sponsor to provide the brochure to wrap fee program clients.

[1]

In In the Matter of Royal Alliance Associates, Inc., SagePoint Financial, Inc. and FSC Securities Corporation, Securities Exchange Act Rel. No. 77362, Investment Advisers Act Rel. No. 4351 (Mar. 14, 2016), the Commission charged three AIG affiliates with investing their advisory clients in mutual fund classes with 12b-1 fees, rather than the same funds without fees, which are frequently available to fee-based advisory accounts. Respondents received approximately $2 million in fees paid by the funds and breached their fiduciary duty by failing to disclose the conflict of interest related to the investments in higher fee funds. Additionally, Respondents failed to monitor client accounts each quarter for inactivity, or “reverse churning,” as was required by their compliance policies and despite citations from the SEC for similar violations several years earlier. Without monitoring for inactivity the Respondents were unable to determine whether a fee-based advisory account is appropriate compared to a commission-based product. Respondents were ordered to pay nearly $2 million in disgorgement, as well as nearly $100,000 in interest.

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[2]

In In the Matter of Raymond James & Associates, Inc., Investment Advisers Act Rel. No. 4525 (Sept. 8, 2016), the Commission found that an investment adviser failed to properly disclose charges that wrap fee clients could incur in addition to the base fee for the wrap program. While the wrap fee paid to the investment adviser included investment advisory services, trade execution, custody, and other brokerage services, it did not include commissions paid when clients traded with broker-dealers that were not affiliated with the investment adviser. The investment adviser failed to acquire information about the extent of the commissions paid to “trade away,” and did not separate the commissions from the net price of each trade on clients’ account statements. The investment adviser agreed to pay a civil penalty of $600,000.

[3]

In In the Matter of Robert W. Baird & Co. Incorporated, Investment Advisers Act Rel. No. 4526 (Sept. 8, 2016), an investment adviser offered a wrap fee program that allowed clients to gain access to select sub-advisers and trading strategies, financial advice, and trade execution through the adviser. If a sub-adviser did not direct trades through the adviser, a client could incur a charge for “trading away.” The adviser did not monitor whether its sub-advisers traded away, and did not track how the costs to clients associated with trading away. Even when the adviser began monitoring “trade away” costs, it did not adopt or implement policies or procedures related to monitoring the costs. As a result, the adviser was unable to consider whether the costs of trading away for their client’s portfolios harmed the clients.

[4]

In In the Matter of Riverfront Investment Group, LLC, Investment Advisers Act Rel. No. 4453 (July 14, 2016), an investment adviser progressively increased its amount of trading away. However, the adviser failed to update its brochure to indicate that it frequently traded away and instead the disclosure continued to note that the adviser would generally trade through the sponsor.

[F] Pricing and Valuation of Portfolio Securities

Rule 2a-4 of the Investment Company Act provides that where a portfolio security is not regularly quoted on a public market, an adviser may price the security at “fair value as determined in good faith by the board of directors of the registered company” in calculating the NAV of the fund. 17 C.F.R. §170.0-2a-4. The SEC has

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initiated enforcement actions against advisers that allegedly failed to adopt or apply a process to ensure that portfolio holdings were priced in good faith. The actions are premised on the allegation that mispriced securities resulted in the sale of funds at a price other than the true “current net asset value” of their underlying securities, in violation of Rule 22c-1 of the Investment Company Act.

Mispricing of securities has been a traditional area of enforcement focus and mispricing of mortgage-related securities is currently drawing particular regulatory scrutiny as part of the financial crisis enforcement actions.

[1]

In December 2003, the SEC filed a civil injunctive action against Heartland Advisors (“Heartland”) and its independent directors in connection with the pricing of bonds in the portfolio of certain Heartland bond funds. SEC v. Heartland Advisors, United States District Court for the Eastern District of Wisconsin, CA No. 03 C-1427 (Complaint, dated Dec. 11, 2003). The SEC alleged that Heartland refused to reduce the prices of portfolio securities of two high yield municipal bond funds, notwithstanding indications that the bonds suffered liquidity and credit problems and could only be sold at substantial discounts to their marked values. Heartland’s alleged failure to lower the mark for portfolio bonds resulted in overstated NAV that, in turn, caused investors purchasing the Funds to pay inflated share prices. The deterioration in the value of the portfolio created cash flow and liquidity problems for the Funds, leaving Heartland unable to meet investor redemptions at Heartland’s represented valuations. When Heartland later sold the bonds at a significant discount to generate cash to satisfy its investor redemptions, the Fund’s NAV dropped significantly.

The SEC asserted that Heartland’s valuation procedures violated Section 17(a) of the Securities Act and Section 10(b) and Rule 10b-5 of the Exchange Act (fraud in connection with the sale of securities), and Section 206 of the Investment Advisers Act (fraud and breach of fiduciary duty to Fund clients and potential investors). The SEC also alleged that Heartland violated its disclosure obligations under Section 34(b) of the Investment Company Act through representations that it had meaningful risk controls and that it had sufficient liquidity to meet investor redemptions. The SEC additionally contended that the conduct violated Rule 22c-1(a) of the Investment Company Act (prohibiting the sale or

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redemption of Fund shares except at a price based on the current NAV of the security) because Heartland calculated the funds’ NAV using inflated bond prices.

In 2008, the SEC and Heartland Advisors resolved the action. SEC v. Heartland Advisors, Investment Advisers Act Rel. No. 2698 (Jan. 25, 2008). In the order, the SEC alleged that the investment adviser failed to price portfolio securities of two high yield municipal bond funds notwithstanding indications that the portfolios’ securities suffered liquidity and credit problems and could be sold only at a substantial discount to the value at which the funds had priced the securities. The SEC alleged that information was provided to the funds’ Directors that should have alerted them to the bonds’ illiquidity and that the bonds had been mispriced. Heartland’s alleged failure to re-price the portfolio securities caused the funds’ NAV to be overstated, and investors who purchased fund shares paid prices in excess of the value of the funds’ assets. The SEC charged the adviser with violating Section 17(a) of the Securities Act, Section 206 of the Investment Advisers Act, Section 34(b) of the Investment Company Act and Rule 22c-1(a). The adviser consented to the entry of a cease and desist order, censure, disgorgement and a civil penalty of $3.5 million.

[2]

In In the Matter of Garrett Van Wagoner and Van Wagoner Capital Mgmt., Inc., Investment Advisers Act Rel. No. 2281 (Aug. 26, 2004), an investment adviser purchased on behalf of its mutual funds unregistered securities, with an emphasis on companies that would soon complete IPOs. The funds’ prospectuses, however, limited the purchase of illiquid securities to 15% of the portfolio. The adviser’s purchase of unregistered securities allegedly exceeded the 15% limitation. The adviser allegedly concealed this violation by categorizing securities in lock-up agreements as liquid. When the characterization of locked-up securities still did not satisfy the 15% illiquidity bucket, however, the adviser purportedly made an across-the-board devaluation of the funds’ unregistered securities.

The SEC averred that the adviser violated the Investment Company Act’s fair valuation rules because writing down securities in an effort to shrink the entire portfolio was bad faith and in violation of Rule 22c-1. The SEC further maintained that the adviser’s purchase of illiquid securities for funds that already held in

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excess of 15% of their assets in illiquid investments rendered the prospectus disclosures materially false. Last, the SEC charged that the adviser with violations of Section 206 of the Investment Advisers Act because “[t]he knowing or reckless failure to fair value private securities that materially affects a fund’s NAV constitutes fraud.” The adviser consented to a cease and desist order and agreed to pay civil penalties.

[3]

In SEC v. Lauer, No. 03-80612-CIV, 2008 U.S. Dist. LEXIS 73026 (S.D. Fla. Sept. 24, 2008), the District Court for the Southern District of Florida granted summary judgment on behalf of the SEC and against a hedge fund adviser and its principal. The court found that the adviser lacked a legitimate basis for, and materially overstated, the valuation of the funds’ portfolios, manipulated the prices of seven of the funds’ portfolio securities, falsely misrepresented the nature and composition of the funds’ holdings, and provided investors with fake portfolio statements. The adviser’s conduct violated Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, and Sections 206(1) and 206(2) of the Advisers Act. Additionally, the adviser’s principal was found to be liable as a control person of the adviser under Section 20(a) of the Exchange Act. The Court entered a permanent injunction against both defendants, and reserved decision on the SEC’s claim for disgorgement and civil penalty against the adviser’s principal. The SEC is seeking a financial penalty and disgorgement of more than $50 million. On January 29, 2009, an ALJ issued an order barring Lauer from association with any investment adviser, pursuant to Section 203(f) of the Investment Advisers Act.

[4]

In SEC v. Brantley Capital Mgmt., LLC, the SEC filed suit against an investment adviser, its Chief Executive Officer, and its former Chief Financial Officer for overstating assets. SEC v. Brantley Capital Mgmt., LLC, Robert Pinkas and Tab Keplinger, 09-CV-01906 (JSG) (N.D. Ohio Aug. 13, 2009). The SEC alleged that the Chief Executive Officer, who made all investment and valuation decisions, advised investors in an unregistered fund that its equity investment in a private airline was worth $32.5 million, when the airline was in financial distress. The SEC also alleged that the adviser intentionally and knowingly overstated the value of the fund’s debt investments in another issuer while reassuring the board that the issuer would repay its

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loans. The Chief Financial Officer settled the claims, without admitting or denying the charges. The settlement included a $50,000 penalty and a 5-year suspension. The Chief Executive Officer subsequently also settled the charges and the settlement included an injunction, disgorgement of over $600,000 plus interest and a penalty of $325,000. According to a later unsettled administrative proceeding, the Chief Executive Officer misappropriated fund assets to pay for the costs of his defense and disgorgement in the initial proceeding, misrepresented to fund investors that these payments were permitted indemnification and violated the bar. In the Matter of Robert Pinkas, Investment Advisers Act Rel. No. 2271 (Feb. 15, 2012).

[5]

In SEC v. Paul T. Mannion, Jr., Andrew S. Reckles, PEF Advisors LLC, and PEF Advisors Ltd., 10-CV-3374 (N.D. Ga.), Lit. Rel. No. 21699 (Oct. 19, 2010), the SEC charged two portfolio managers and their investment advisory businesses with defrauding investors in a hedge fund by overvaluing illiquid assets that were held in a side pocket of the fund. In particular, the SEC alleged that the managers placed the fund’s investment in certain illiquid securities in a side pocket and valued them in a manner that was inconsistent with the fund’s valuation policies and contrary to an undisclosed internal assessment. The SEC asserted that this resulted in an overvaluation of the assets by as much as 60% over the managers’ internal valuations. In addition, the SEC also alleged that the managers stole investor money to pay for their personal investments and made material misstatements about their trading positions to an issuer in connection with their participation in a PIPE offering.

[6]

On June 22, 2011, Morgan Asset Management, Inc. and Morgan Keegan & Company, Inc. reached an agreement to pay $200 million to settle allegations by the SEC and FINRA, consisting of $25 million in disgorgement plus interest, a $75 million penalty to the SEC to be placed into a Fair Fund for investors and $100 million into a state fund for investors. The firms are additionally required to abstain from involvement in valuing fair valued securities on behalf of investment companies for three years. The SEC alleged that during certain periods in 2007, the NAV of several funds managed by the adviser were materially inflated. Each of the funds held securities backed by subprime mortgages, and the SEC alleged that when the market for the

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securities deteriorated, the portfolio manager fraudulently manipulated the funds’ NAVs. The SEC further alleged that the broker-dealer fraudulently published NAVs for the funds without following procedures reasonably designed to determine that the NAVs were accurate.

Among other allegations, the SEC claimed that respondents willfully violated Section 17(a) of the Securities Act, Section 10(b) of the Securities Exchange Act and Rule 10b-5 thereunder. FINRA also filed a complaint against the broker-dealer on April 7, 2010, alleging that it marketed and sold shares of its funds to investors using false and misleading sales materials and that the firm had deficient internal guidance and failed to train its brokers about the risks of the funds’ investments which led the brokers to make material misrepresentations to investors. The firm’s former portfolio manager and comptroller also reached settlements with the SEC. In re Morgan Asset Mgmt., Inc. and Morgan Keegan & Co., Inc., Securities Exchange Act Rel. No. 64720, Investment Advisers Act Rel. No. 3218, Investment Co. Act Rel. No. 29704 (June 22, 2011). A number of states have brought related proceedings against the firms.

[7]

On June 8, 2009, the SEC charged Evergreen Investment Management Company and its distributor with violations of Section 206(2) of the Advisers Act for misstating the value of holdings in mortgage-backed securities, and subsequent selective disclosure to investors regarding the negative impact of re-valuation of those securities. In the Matter of Evergreen Investment Mgmt. Company, LLC, Investment Advisers Act Rel. No. 2888 (June 8, 2009). The SEC alleged that Evergreen overstated the Fund’s NAV for at least 17 months by failing to factor in readily available market information in its calculations. The SEC found that the overstated NAV resulted in certain investors redeeming at a higher share price to the detriment of other investors. The SEC also found that this practice resulted in inflated advisory fees.

The SEC charged Evergreen with violations of Section 204A of the Investment Advisers Act for failing to maintain policies to prevent the misuse of material nonpublic information, as well as aiding and abetting violations of Sections 17(a)(2) and 34(b) of the Investment Company Act and Rule 22c-1 thereunder. The affiliated distributor was also charged with violations of Rule 22c-1 and the Investment Company Act and violations of Sections 15(f)

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and 17 of the Exchange Act. Without admitting or denying the allegations, Evergreen settled with the SEC, agreeing to a cease and desist order and monetary penalties of approximately $40 million in settlement and disgorgement fees. See alsoSEC v. Charles J. Marquardt. Evergreen also entered into a consent order with the Massachusetts Securities Division Secretary based on a state investigation arising out of the same facts. In the Matter of Evergreen Inv. Mgmt. Co, LLC, Docket No. E-2008-0062 (Mass. June 8, 2009).

[8]

In January 2014, the SEC settled proceedings against a former portfolio manager. In the Matter of Brian Williamson, Investment Advisers Act Rel. No. 3760 (Jan. 22, 2014). The SEC charged the portfolio manager with making material false and misleading statements and omissions from September 2009 through June 2010 to investors and prospective investors about the valuation of a fund he managed in violation of Section 17(a) of the Securities Act, Section 10(b) of the Securities Exchange Act, and Section 206(4) of the Investment Advisers Act and Rule 206(4)-8.

The alleged misstatements included: (1) those made in marketing materials that misled investors as to the fund’s internal rate of return by not taking into account certain expenses and fees; (2) those made to investors and prospective investors in pitch books, and other materials and communications, that the valuation of the fund was “based on the underlying managers’ estimated values”—the value was instead based on the portfolio manager’s own valuation; and (3) those made to disguise the foregoing statements. A number of investors made investments based on the marketing materials containing the portfolio manager’s false statements.

Without admitting or denying the findings, the portfolio manager agreed to a bar from the securities industry with a right to apply for reentry after two years, a cease and desist order, and a civil penalty of $100,000.

[9]

The SEC has also brought charges against a hedge fund adviser for failure to adopt and implement written compliance policies and procedures to periodically review investor disclosures regarding the valuation of non-widely quoted securities. In In the Matter of Agamas Capital Management, LP, Investment Advisers Act Rel. No. 3719 (Nov. 19, 2013), the SEC found that the hedge fund failed: (1) to document the basis for discretionary pricing of non-widely quoted securities, (2) to adopt policies that would ensure

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proper description of the valuation process, and (3) to implement policies to avoid conflicts of interest in cross trades among the broker dealer’s funds. The Hedge Fund’s Chief Financial Officer, who also served as the Chief Compliance Officer, had final authority over pricing. The fund described to investors that it had an objective criteria for valuing securities based on independent quotes that could be overridden by good faith discretion. However, the hedge fund eliminated low quotes over 85% of the time, overrode prices using its discretion, and did not fully document the basis for the invalidation of those quotes. The hedge fund also did not have any policies in place for determining cross trade pricing and managing potential conflicts in the transaction. To resolve the proceeding with the SEC, the hedge fund agreed to a censure, requirements that it notify its investors of the order, and a civil penalty of $250,000.

[10]

In In the Matter of AlphaBridge Capital Mgmt., LLC, Investment Advisers Act Rel. No. 4135 (July 1, 2015), the SEC charged a hedge fund and its individual owners with fraud in connection with to investors and auditors that they priced certain unlisted, lightly-traded residential mortgage-backed securities using independent price quotes from broker-dealers. The adviser allegedly provided broker-dealer representatives with its own internal valuations, which the broker-dealers then presented as their own. The SEC alleged that the inflated price of these assets caused the funds to pay higher management and performance fees to the adviser. The SEC charged the adviser with violations of Sections 206(1) and 206(2) of the Investment Advisers Act. Both AlphaBridge and the CEO were censured. The Chief Compliance Officer, who was found to have priced the securities on the basis of his own data rather than that of the broker-dealer, was barred from the industry for three years. The adviser consented to a $4.025 million disgorgement and $725,000 penalty. The broker-dealer representative who allegedly assisted in the scheme agreed to a $15,000 penalty and a one-year industry bar.

[11]

In SEC v. Summit Asset Strategies Investment Mgmt., LLC Civil Action No. 2:15-cv-01429 (W.D. Wa. Sept. 4, 2015), the SEC charged a Seattle-area hedge fund adviser with collecting unearned fees by inflating the valuation of assets. The SEC brought an action against the fund’s external auditors. Summit Asset Strategies Investment Management was entitled to withdraw net profit

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as fees. The adviser allegedly withdrew fees that were based on inflated asset values. In one example, the principal claimed that the fund owned a bank asset worth approximately $2 million, when allegedly the fund owned a different asset that was worth less than $200,000. The SEC charged the accountants with failure to comply with generally accepted auditing standards in the deficient audit, which materially overstated the fund’s valuation. The auditors failed to obtain sufficient evidence to support the principal’s valuation of assets.

[12]

In a high-profile case, the SEC alleged that Lynn Tilton, her Patriarch Partners LLC and related entities, defrauded certain funds by providing false and misleading information relating to the values reported for fund assets. The SEC has alleged that the respondents did not prepare quarterly financial statements in accordance with GAAP, but rather by a discretionary approach employed by Tilton. The SEC asserts that, by not employing GAAP, the funds’ assets have been overstated and in turn the adviser and Ms. Tilton have overcharged management fees on the inflated assets. The Second Circuit rejected Tilton’s challenge to the constitutionality of the SEC’s administrative courts. The case went to trial on October 24, 2016. In the Matter of Lynn Tilton; Patriarch Partners, LLC; Patriarch Partners VIII, LLC; Patriarch Partners XIV, LLC; and Patriarch Partners XV, LLC, Investment Advisers Act Rel. No. 4053, Investment Co. Act Rel. No. 31539 (Mar. 30, 2015).

[13]

In In the Matter of Calvert Investment Management, Inc., Investment Advisers Act Rel. No. 4554, Investment Co. Act Rel No. 32321 (Oct. 18, 2016), the SEC charged a mutual fund adviser with improper fair valuation of certain securities held by funds advised by the mutual fund adviser. The improper valuation led to pricing and trading the funds at an incorrect NAV, which resulted in incorrect performance figures for the funds. When the mutual fund adviser tried to remedy the loss to the funds and the funds’ shareholders, the adviser improperly calculated the remediation and failed to disclose the calculation process.

[G] Failure to Supervise

The federal securities laws impose affirmative duties on registered companies to supervise their employees in a manner reasonably calculated to prevent violations of the federal securities laws. See

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15 U.S.C. § 78o(b)(4)(E) (authorizing enforcement actions under the Exchange Act against broker-dealers who fail to reasonably supervise their employees with a view towards preventing violations of federal securities laws); 15 U.S.C. §80b-3(e)(6) (authorizing enforcement actions under the Investment Advisers Act for failure to supervise employees in a manner reasonably designed to prevent violations of the federal securities laws). These provisions also authorize the SEC to initiate enforcement actions against companies and individual employees with supervisory authority who fail to fulfill their responsibility to adequately monitor employee conduct.

[1]

Supervision of Employees

[a]

In In the Matter of John Gutfreund, Thomas W. Strauss, and John W. Meriwether, Securities Exchange Act Rel. No. 31554 (Dec. 3, 1992), an employee of Salomon Brothers Inc. allegedly submitted a false bid for US Treasury Bonds. The three respondents were senior Salomon executives who did not participate directly in the bid submission. However, when informed of the action, and of its potentially criminal nature, the executives allegedly failed to investigate the matter, delayed in reporting it to the government, and neglected to implement disciplinary action against, or enhance supervision over the errant employee. The SEC contended that notice of the false bid triggered a duty to take prompt and vigorous action to address the misconduct, including, at least, the initiation of an internal investigation into the matter, and a limitation of the relevant employee’s activities.

[b]

In In the Matter of Battery Wealth Mgmt., Inc. and Wayne Cassaday, Investment Advisers Act Rel. No. 2800A (Oct. 15, 2008), the Chief Compliance Officer of a registered investment adviser allegedly overlooked red flags that should have alerted him to conduct contrary to their clients’ interests. An earlier proceeding had determined that the adviser’s co-owner and Vice President had violated various anti-fraud provisions by fabricating account statements and misappropriating client funds. SeeSEC v. Albert E. Parish, Jr., Lit. Rel. No 10107 (May 9, 2007); In the Matter of Albert E. Parish Jr., Investment Advisers Act Rel. No. 2607 (May 25, 2007). The SEC alleged that the adviser knew or should have known that the Vice President was engaging

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in misconduct because, among other things, (1) the Chief Compliance Officer reviewed the Vice President’s personal financial statements, which should have revealed a gross disparity between his reported income and his lavish lifestyle; (2) the Chief Compliance Officer knew that the Vice President had issued personal notes to the IRA accounts of adviser’s clients to fund the adviser’s “loan pool;” and (3) the Chief Compliance Officer knew that the Vice President deliberately delayed honoring a redemption request for six weeks in hopes of finding new investors funds and to avoid liquidation of specific bonds. The SEC alleged that the Chief Compliance Officer’s failure to follow up on these red flags aided and abetted the adviser’s violation of Sections 206(1) and 206(2) of the Investment Advisers Act. The SEC additionally alleged that the Chief Compliance Officer’s adoption and implementation of a generic compliance manual did not address the particular risks of the adviser’s business, and therefore was not reasonably designed to prevent violation of the Investment Advisers Act, in violation of Section 206(4) of the Investment Advisers Act and Rule 206(4)-7 thereunder. Without admitting or denying the allegations, the Chief Compliance Officer consented to a cease and desist order, a bar from association with any investment adviser, disgorgement of $6,731, and a monetary civil penalty of $40,000. For its primary violations, the adviser, without admitting or denying the allegations, assented to a cease and desist order, censure, and disgorgement and interest totaling over $100,000.

[c]

In In the Matter of Tobias Bros., Inc., Investment Advisers Act Rel. No. 2936 (Oct. 16, 2009), the SEC charged an investment adviser with failure to supervise. The SEC alleged that an order-processing clerk executed 24 unauthorized trades, resulting in $8,474,325 in investor losses. Neither the adviser nor the processing clerk profited from the unauthorized trading. The SEC alleged that the adviser failed to supervise the clerk in violation of Section 203(e)(6), by failing to review internal profit and loss reports and to reconcile them with trade reports generated by the prime broker. The SEC further alleged that the adviser failed to maintain books and records required pursuant to Section 204 and Rule 204-2 of the Investment Advisers Act because its

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books and records did not accurately reflect the unauthorized trades, and it did not preserve, retain or archive instant messages. Without admitting or denying the allegations, the adviser consented to the order of settlement, including censure and a cease and desist order for any violations of Section 204 and Rules 204-2(a)(3) and 204-2(a)(7) of the Investment Advisers Act.

[d]

In In the Matter of Theodore W. Urban, Investment Advisers Act Rel. No. 2938 (Oct. 19, 2009), the SEC charged the General Counsel of an adviser with failure to supervise a registered representative, Stephen Glantz, who pled guilty to violations of Section 10(b) of the Exchange Act. The SEC alleged that the general counsel was aware of red flags including: (1) ten customer complaints on Glant’z Form U4; (2) the fact that Glantz worked at different locations under a special arrangement with the adviser after compliance concerns had been raised, including concerns raised by compliance officers regarding possible stock manipulation by the trader; and (3) receipt of emails and memoranda about misconduct by Glantz. On September 8, 2010, an ALJ issued an Initial Decision finding that the General Counsel did not fail reasonably to supervise Glantz. In particular, the ALJ found that Urban reasonably relied on the firm’s director of retail sales to exercise heightened supervision over Glantz, and that even if Urban had raised concerns to the CEO or the Board of Directors, they would have deferred to the firm’s director of retail sales, who disagreed with Urban’s recommendation that Glantz be terminated (Initial Decision No. 402; File No. 3-13655). On December 7, 2010, the Commission refused to summarily affirm the ALJ’s decision because the proceeding raises important legal and policy issues, including whether Urban acted reasonably in supervising Glantz, whether he responded reasonably to indications of his misconduct, whether securities professionals like Urban should be legally required to “report up,” and whether Urban’s role as general counsel affects his liability for supervisory failure. In the Matter of Theodore W. Urban, Securities Exchange Act Rel. No. 63456 (Dec. 7, 2010). In January 2012, the Commission issued an order stating that it was evenly divided as to whether the allegations against Urban

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had been established and ordered that the proceeding against Urban be dismissed. In the Matter of Theodore W. Urban, Investment Advisers Act Rel. No. 3366 (Jan. 26, 2012). This action by the Commission left the “important legal and policy issues” raised by the ALJ’s opinion unresolved.

[e]

The SEC brought a settled administrative action against TD Ameritrade for failing to reasonably supervise certain registered representatives who allegedly misstated to customers the risks and liquidity of the Reserve Yield Plus Fund. In the Matter of TD Ameritrade, Securities Exchange Act Rel. No. 63829 (Feb. 3, 2011). A number of representatives allegedly characterized the fund as a money market fund, as safe as cash, or as an investment with guaranteed liquidity. They also failed to disclose the nature or risks of the fund when offering the investment to customers. In addition, the SEC alleged that the respondent failed to have adequate supervisory policies and procedures governing the offers and sales of the fund or to prevent the alleged misstatements from being made to investors. Without admitting or denying the allegations, TD Ameri-trade agreed to distribute approximately $10 million to eligible customers still holding shares of the fund.

[f]

The Commission found that the adviser failed to supervise a principal for misappropriating client funds. The adviser had previously determined that the individual should be placed on heightened supervision, but the increased supervision was never implemented. See In the Matter of Cambridge Investment Research Advisors, Inc., Investment Advisers Act Rel. No. 4361 (Apr. 5, 2016).

[g]

In In the Matter of Artis Capital Management, L.P. and Michael W. Harden, Investment Advisers Act Release No. 4550 (Oct. 13, 2016), the Commission found that the adviser and its senior research analyst failed to supervise an employee who obtained material nonpublic information from an insider at a public company. The adviser had failed to have written policies and procedures to address such supervision. On at least two occasions the employee provided information regarding the public company to the adviser that should have caused questions by a reasonable supervisor.

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[2]

Supervision of Employee E-mail Communications

Correspondence between broker-dealers and the external community is heavily regulated to prevent the dissemination of materially misleading information to investors. Accordingly, regulators have long maintained that broker-dealers are required to monitor their employees’ external communications. The SEC initiated an action against Bear Stearns & Co, Inc. (“Bear Stearns”) for its failure to adequately supervise its employees’ outgoing electronic correspondence. In the Matter of Bear Stearns & Co., Exchange Act Rel. No. 54806 (Nov. 21, 2006). Although Bear Stearns’ internal procedures prohibited salespersons from mailing hard-copy correspondence without management pre-approval, the procedures did not require that Bear Stearns managers screen all e-mail before transmission. The SEC alleged that salespersons at Bear Stearns had offered securities for sale in e-mail communications prior to the effectiveness of the registration statements for the securities, in violation of Section 5(b) of the Securities Act. Because e-mails went unchecked under Bear Stearns’ policies governing customer communications, the SEC asserted that Bear Stearns violated its duty under Exchange Act Section 15(b) (4)(E) to reasonably supervise persons subject to its supervision. Without admitting or denying the allegations, Bear Stearns undertook to develop, review and establish procedures to supervise employee e-mail, and consented to a censure.

[H] Notice of Source of Dividend Payments

Section 19(a) and Rule 19a-1 of the Investment Company Act require that dividend payments from mutual funds disclose the source of the payments to shareholders (“19(a) notices”). The purpose of the requirement is to ensure that investors are informed as to whether payments derive from fund income or a return of shareholder capital. The SEC has initiated enforcement actions against advisers or their affiliates for failure to enclose 19(a) notices with dividend payments.

[1]

In In the Matter of Delaware Service Co., Inc., Investment Co. Act Rel. No. 27473 (Aug. 31, 2006), the adviser performed accounting and administrative functions for funds in the Delaware Investment Complex. Three closed-end funds within the complex offered regular dividend payments to shareholders. Between January 2000 and May 2004, ninety-eight dividends were paid to shareholders of the funds, each of which included a

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return of a portion of the shareholder’s capital. The adviser determined the amount and composition of all dividend payments and prepared the shareholder notice. The adviser, however, allegedly failed to include the required 19(a) notices, and the SEC maintained that the failure was in violation of Section 19(a) and Rule 19a-1 of the Investment Company Act.

The adviser additionally had requested and procured an exemption from Section 19(b) of the Investment Company Act (which limits the number of payments from long-term capital a Fund may make to its shareholders) on behalf of certain funds in the Delaware complex. In its application for the exemption, the adviser represented that the distributions complied with Rule 19a-1 under the Investment Company Act and were accompanied by 19(a) notices. Its alleged failure to distribute the notices rendered its application false, in violation of Section 34(b) of the Investment Company Act, which prohibits materially false disclosures in documents required to be filed with the Commission.

[2]

In In the Matter of Gabelli Funds, Investment Advisers Act Rel. No. 2938 (Oct. 19, 2009), the SEC alleged violations of Section 19(a) and Rule 19a-1 of the Investment Company Act by two closed-end funds—Gabelli Convertible and Income Securities Fund and Gabelli Utility Trust—managed by Gabelli LLC. The two funds allegedly paid shareholders from shareholder capital and capital gains in violation of Section 19(a), requiring that payments come from net income unless accompanied by contemporaneous written statements explaining the deviation. Gabelli was responsible for the administration of the funds and allegedly failed to include the required written statements. Without admitting or denying the allegations, Gabelli entered into an Offer of Settlement agreeing to a cease and desist order from further violations of Section 19(a) and Rule 19a-1 of the Investment Company Act. The SEC also fined Gabelli $450,000 for its violations.

[3]

See also In the Matter of AllianceBernstein, Investment Advisers Act Rel. No. 2663 (Sept. 28, 2007) (consented to a cease and desist order and civil penalty of $450,000); In the Matter of Putnam Investment Mgmt., LLC, Investment Advisers Act Rel. No. 2666 (Sept. 28, 2007), In the Matter of Smith Barney Fund Mgmt., LLC, Investment Advisers Act Rel. No. 2665 (Sept. 28, 2007).

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[4]

On August 5, 2008, the SEC issued an exemption from Section 19(b) and Rule 19b-1 under the Investment Company Act. The exemptive order permitted two closed end funds to make distributions of capital gains as frequently as twelve times per year and as frequently as the terms of any outstanding preferred stock would allow, subject to conditions and representations designed to ensure that there is sufficient Board oversight and that each fund’s shareholders are provided sufficient information to understand that the periodic distributions are not tied to the fund’s net investment income. See, e.g., ING Clarion Real Estate Income Fund, Investment Co. Act Rel. No. 28352 (Aug. 5, 2008).

[I] Insider Trading

The purchase or sale of securities on the basis of material, non-public information when the trader has a duty not to trade violates Section 10 of the Exchange Act and Rule 10b-5. Chiarella v. United States, 445 U.S. 222 (1980). The SEC has broad authority to police insider trading violations, and enforcement in this area has been of particular interest to Congress. Section 21A of the Exchange Act, for example, explicitly authorizes the SEC to seek increased penalties for insider trading violations. 15 U.S.C. § 78u-1. Advisers charged with trading portfolio securities must adhere to relevant insider trading prohibitions.

[1]

Salman v. United States, 580 U.S.___(2016)

In December 2016, the Supreme Court issued an important decision involving the requirements for tippee/tipper liability established by Dirks v. SEC. 463 U.S. 646 (1983). The Supreme Court held that a personal benefit includes a tipper’s benefit

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from “making a gift of confidential information to a trading relative,” and resolved a split between the Second and Ninth Circuits as to what constitutes a personal benefit. Salman v. United States, 580 U.S.___(2016).

On September 1, 2011, Bassam Yocoub Salman was indicted on five counts involving insider trading. Salman received insider tips from his future brother-in-law, Maher Kara, and reaped nearly $1 million in profits from trading on the tips.

At Salman’s trial, the court applied the Dirks liability standard, which held that an insider could not provide an outsider with information for “an improper purpose of exploiting the information for their personal gain.” “[T]he test is whether the insider personally will benefit, directly or indirectly, from his disclosure.” Salman appealed the verdict, arguing that the Ninth Circuit should apply the Second Circuit’s personal benefit standard as articulated by U.S. v. Newman, which held that a tippee can only be liable for insider trading if he has knowledge that the corporate insider (the tipper) obtained a personal benefit, and that the government may not “prove the receipt of a personal benefit by the mere fact of a friendship, particularly of a casual or social nature.” 773 F.3d 438 (2d Cir. 2014).

The Supreme Court overruled Newman to the extent it required a tipper to receive a pecuniary benefit, or its equivalent, to be found to have breached the tippers fiduciary duty when tipping a friend or family member. The Court upheld the Ninth Circuit’s decision, finding that “Dirks…easily resolves the narrow issue presented here,” and explained “that when a tipper gives inside information to “a trading relative or friend,” a jury can infer that the tipper meant to provide the equivalent of a cash gift.” The Court added that Salman acquired Maher’s duty of trust and confidence to Citigroup when he received confidential information with the “full knowledge that it had been improperly disclosed.”

[2]

In SEC v. Gowrish, 09 CV 5583 (N.D. Cal., Dec. 16, 2009), Lit. Rel. No. 21339, the Commission charged financial professionals with insider trading based on tips from a private equity analyst. A jury found Gowrish liable for illegally tipping material, nonpublic information relating to three publicly traded companies. See Lit. Rel. No. 21838 (Feb. 4, 2011). See also Investment Advisers Act Rel. No. 3347 (Dec. 29, 2011) imposing an industry bar.

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[3]

In SEC v. Donovan, CA No. 08-CA-10649-RWZ (D. Mass.), Lit. Rel. 20528 (Apr. 16, 2008), the SEC filed a civil action in the U.S. District Court for the District of Massachusetts against David Donovan, a former trader at Fidelity Investments, and David R. Hinkle, a former broker at Capital Institutional Services, for allegedly defrauding Fidelity and its advisory clients. The SEC’s complaint alleged that Donovan and Hinkle accessed confidential trading information stored on Fidelity’s internal order database and traded on this information and ahead of pending orders Fidelity had placed on behalf of its advisory clients. Donovan allegedly used his mother’s account for his illegal trading. The SEC’s complaint asserted that the alleged conduct violated Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, and sought permanent injunctions, disgorgement and civil penalties. On November 20, 2009, a jury found against Donovan for insider trading and found that Donovan violated Section 10(b) and Rule 10b-5 of the Exchange Act. The jury found in favor of Hinkle. SEC v. David K. Donovan,Jr. and David R. Hinkle, Civ. Action No. 08-CA-10649-RWZ (D. Mass. Apr. 16, 2008).

[4]

In SEC v. Charles J. Marquardt, 10-CV-10073 (D. Mass. Feb. 10, 2010), the SEC charged a former executive at Wells Fargo’s Evergreen Investment Management Co. with violations of Section 17(a) of the Securities Act and Rule 10b-5 in connection with the executive’s trades in mutual fund shares while the adviser was in the process of re-pricing the fund’s holdings. The SEC’s complaint alleged that the executive learned that one of the firm’s funds would reduce the value assigned to several of its mortgage-backed holdings, which would subsequently decrease the NAV and potentially close the fund. The executive allegedly traded on this information prior to Evergreen’s public announcement that the fund would close. The defendant agreed to a permanent injunction from future violations of Section 17(a) of the Securities Act, Section 10(b) of the Securities Exchange Act and Rule 10b-5 promulgated thereunder and was ordered to pay $40,000 in disgorgement and penalties.

[5]

In In the Matter of David W. Baldt, Securities Act Rel. No. 9210, Investment Advisers Act File No. 3209, Investment Company Act File No. 29674 (May 11, 2010, amended May 20, 2011), David W. Baldt, a portfolio manager for municipal bond

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funds at Schroder Investment Management North America Inc., was found to have engaged in insider trading by tipping family members to redeem shares in funds he managed after investor redemptions began to increase and the funds encountered difficulty in liquidating assets. The decision ordered disgorgement of losses avoided by his family members through their redemptions and barred Baldt from association with an investment adviser.

[6]

The SEC initially won a motion for summary judgment on its insider trading claims against the former general counsel and chief compliance officer of an investment adviser and executive of the affiliated investment company in SEC v. Bauer, Civ. No. 03-C-1427, 2011 WL 2115924 (E.D. Wis. May 25, 2011). The district court found that the general counsel/CCO had traded in funds shares while in possession of material non-public information concerning a bond fund’s liquidity and redemption problems. The district court rejected defendant’s assertion of independent reasons for selling failed to remove the inference of insider trading.

The United States Court of Appeals for the Seventh Circuit vacated that decision in 2013. SEC v. Bauer, 723 F.3d 758 (7th Cir. 2013). The district court had held that officer’s transactions in mutual funds managed by the adviser constituted insider trading under a classic theory in which an insider trades in securities in his own corporation on the basis of material, non-public information. On review, the Seventh Circuit observed that open-end mutual fund transactions occur with the fund and the fund is in possession of all material information about itself. For this reason, the Court concluded that the fund could not be deceived.

The Seventh Circuit remanded the action to the district court to assess whether the officer’s transactions in mutual fund shares constituted insider trading under a misappropriation theory in which an outsider misappropriates confidential information for securities trading in breach of a duty owed to the source of the information. The Seventh Circuit raised important questions about the viability of that theory with respect to transactions by fund officers in mutual fund shares – including whether a corporate officer is an outsider and whether a board’s approval of a trade window was sufficient to demonstrate that

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there was no breach of duty – but left resolution of those questions to the district court to address in the first instance.

[7]

On August 31, 2011, the SEC charged James F. Turner II and his New Jersey-based hedge fund firm Clay Capital Management, LLC with engaging in an insider trading scheme that involved the securities of three companies – Moldflow Corporation, Autodesk, Inc. and Salesforce.com, Inc. Also charged were Turner’s brother-in-law Scott A. Vollmar, Turner’s friend Scott A. Robarge and Vollmar’s neighbor Mark A. Durbin for their roles in the scheme. In total, the SEC alleges that the scheme generated illicit gains of nearly $3.9 million. SEC v. Clay Capital Mgmt., LLC, Lit. Rel. No. 22080, 2:11-CV-05020-DMC-JAD (D. N.J. Aug. 31, 2011).

[8]

In its first insider trading enforcement action involving exchange-traded funds (ETF), the SEC charged a former Goldman, Sachs & Co. employee and his father with insider trading on confidential information about Goldman’s trading strategies and intentions that he learned while working on the firm’s ETF desk. Specifically, the SEC alleged that the employee obtained non-public details about Goldman’s plans to purchase and sell large amounts of securities underlying the SPDR S&P Retail ETF (XRT), and tipped his father. The two allegedly traded in four different securities underlying the XRT with knowledge of massive, market-moving trades in these securities that Goldman would later execute. In re Spencer D. Mindlin, Securities Act Rel. No. 9261, Investment Advisers Act Rel. No. 3284, Investment Co. Act Rel. No. 29813 (Sept. 21, 2011).

[9]

The SEC has also brought charges for failing to have adequate policies and procedures to prevent the misuse of nonpublic information. In In the Matter of Buckingham Research Group, Investment Advisers Act Rel. No. 3109 (Nov. 17, 2010), the SEC charged a broker-dealer, its affiliated investment adviser and their former Chief Compliance Officer with failure to establish, maintain, and enforce written policies and procedures reasonably designed to prevent misuse of material, nonpublic information, including forthcoming research reports. The former Chief Compliance Officer for both firms was charged with aiding and abetting and causing the failures. The Commission found that whenever there was a material research event, the broker-dealer’s written policy required research analysts to

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complete a certification form attesting that they had maintained confidentiality of the material research information. However, in practice, the broker-dealer required an analyst to complete a certification form only where a portfolio managed by the investment adviser had traded in the same direction as the research. Without admitting or denying the SEC’s findings, the broker-dealer agreed to pay a $50,000 penalty, the investment adviser agreed to pay a $75,000 penalty, and the former Chief Compliance Officer agreed to pay a $35,000 penalty. They also consented to an order that censures all of the respondents; requires the broker-dealer to cease and desist from committing or causing any violations or future violations of Section 15(f) of the Securities Exchange Act; requires the adviser to cease and desist from committing or causing any violations and any future violations of Sections 204(a), 204A and 206(4) of the Investment Advisers Act and Rule 206(4)-7 thereunder; and requires the former Chief Compliance Officer to cease and desist from causing any violations and any future violations of Section 15(f) of the Exchange Act and Sections 204A and 206(4) of the Investment Advisers Act and Rule 206(4)-7 thereunder. The order also requires that both firms engage an independent consultant to review and make recommendations regarding their compliance policies and procedures.

[10]

On October 16, 2009, the SEC filed a civil injunction action against Raj Rajaratnam and his hedge fund advisory firm, Galleon Management LP. SeeSEC v. Galleon Mgmt., LP, 09-CV-8811 (S.D.N.Y. Oct. 16, 2009), Lit. Rel. No. 21255. The SEC alleged that Rajaratnam used personal contacts and business associates to obtain confidential information about various companies, which he then used to place trades that benefited Galleon in excess of $25 million. In addition, the SEC also charged six others involved in the criminal scheme, including Danielle Chiesi, a portfolio manager at New Castle Funds, Rajiv Goel, a managing director at Intel Capital, an Intel subsidiary, Anil Kumar, a director at McKinsey & Company, Mark Kurland, a Senior Managing Director and General Partner at New Castle, Robert Moffat, a senior vice president at IBM, and New Castle Funds LLC, a New York-based hedge fund.

On November 8, 2011, the SEC obtained a record $92.8 million penalty against Rajaratnam to settle the civil case against him.

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He was also permanently enjoined from future violations of Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act and Exchange Act Rule 10b-5. See SEC Press Release No. 2011-233, available at http://www.sec.gov/news/press/2011/2011-233.htm. On May 11, 2011, Rajaratnam was convicted of fourteen counts of securities fraud and conspiracy and sentenced to eleven years in prison in criminal proceedings brought by the U.S. Attorney’s Office in 2009. SeeU.S. v. Rajaratnam, 09-CR-1184 (S.D.N.Y. Oct. 13, 2011).

As to the other defendants charged in the Galleon case, the court entered a consent order and final judgment as to Mark Kurland and Robert Moffat, permanently enjoining them from violations of the antifraud provisions of the Exchange Act and permanently barring them from acting as an officer or director of a public issuer, and dismissed the case against New Castle Funds LLC, which has agreed to shut down its operations as a condition of the dismissal. SeeSEC v. Galleon Mgmt., LP, 09-CV-8811 (S.D.N.Y. Feb. 1, 2011), Lit. Rel. No. 21834. The SEC has entered into settlement agreements with Chiesi. Goel and Khan, and Kuman. See In the Matter of Danielle Chiesi, Investment Advisers Act Rel. No. 3251 (July 22, 2011); SEC v. Galleon Mgmt., LP, 09-CV-8811 (S.D.N.Y. Nov. 8, 2010), Lit. Rel. No. 21732; SEC v. Galleon Mgmt., LP, 09-CV-8811 (S.D.N.Y. May 17, 2010); Lit. Rel. No. 21526. Each was permanently enjoined from violating the antifraud provisions of the federal securities laws, barred from acting as an officer or director of any public company, and ordered to pay disgorgement. Each agreed to cooperate with the SEC in its ongoing investigation.

On October 26, 2011, the SEC filed insider trading charges against Rajat Gupta, the former global head of McKinsey & Co. The SEC alleged that Gupta tipped Rajaratnam about the quarterly earnings of both Goldman Sachs and P&G as well as an impending $5 billion investment in Goldman by Berkshire Hathaway at the height of the financial crisis, while Gupta was serving on the boards of Goldman Sachs and Procter & Gamble. The SEC also filed new insider trading charges against Rajaratnam related to this conduct, alleging that he caused various Galleon funds to trade based on Gupta’s inside information, generating illicit profits or loss avoidance of more than $23 million. Each was charged with violations of Section 10(b) of

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the Securities Exchange Act and Rule 10b-5 thereunder, and Section 17(a) of the Securities Act. SeeSEC v. Rajat Gupta and Raj Rajaratnam, 11-CV-7566 (S.D.N.Y. Oct. 26, 2011), Lit. Rel. No. 22140. The SEC is seeking penalties of $15 million and a permanent bar from his acting as an officer or director of a public company. U.S. v. Rajat Gupta, 1:11 cr 907-01(S.D.N.Y. Oct. 25, 2011). After a trial on related criminal charges, Gupta was found guilty of conspiracy to commit securities fraud and securities fraud, sentenced to 24 months in prison and fined $5 million. The conviction is on appeal.

In 2011, the SEC settled its charges against Thomas C. Hardin in a case related to its ongoing investigation of Galleon. SEC v. Hardin, 10-CV-8600 (S.D.N.Y. June 14, 2011), Lit. Rel. No. 22000. In 2010 the SEC had charged Hardin, a former managing director at a New York-based hedge fund investment adviser, Lanexa Management LLC, for insider trading in connection with two corporate takeovers and a quarterly earnings announcement. Hardin traded on this information on behalf of Lanexa and also passed it to others, who similarly traded. The order permanently enjoins him from future violations of Section 17(a) of the Securities Act, Section 10(b) of the Securities Exchange Act and Rule 10b-5 thereunder, and orders him to pay disgorgement of $40,000. Hardin previously pled guilty to charges of securities fraud and conspiracy to commit securities fraud in a related criminal case, U.S. v. Hardin, No. 10-CR-399 (S.D.N.Y. Nov. 12, 2010).

In another case related to Galleon, the SEC charged Robert Feinblatt, a co-founder and principal of New York-based hedge fund investment adviser Trivium Capital Management LLC, and Trivium analyst Jeffrey Yokuty with engaging in insider trading in the securities of Polycom, Hilton, Google and Kronos. The complaint charges Trivium with insider trading as well. The SEC further alleges that Polycom senior executive Sunil Bhalla and Shammara Hussain, an employee at investor relations consulting firm Market Street Partners that did work for Google, tipped the inside information that enabled the insider trading by Feinblatt and Yokuty on behalf of Trivium’s hedge funds for illicit profits of more than $15 million. Defendants are charged with violations of Section 10(b) of the Securities Exchange Act and Rule 10b-5 thereunder, and, except for Bhalla, with violations of Section 17(a) of the Securities Act. SEC v.

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Feinblatt, 11-CV-0170 (S.D.N.Y. Jan. 10, 2011), Lit. Rel. No. 21802. Bhalla settled charges against him on September 21, 2011, agreeing to the entry of a judgment that permanently enjoins him from future violations of Section 10(b) of the Securities Exchange Act and Rule 10b-5 thereunder, orders him to pay a civil penalty of $85,000, and bars him from serving as an officer or director of a public company for 5 years. SEC v. Feinblatt, 11-CV-0170 (S.D.N.Y. Sep. 21, 2011), Lit. Rel. No. 22100.

In another matter arising from the Galleon investigation, the SEC filed a civil action against Douglas Whitman, a hedge fund manager, and his firm based on his alleged use of material non-public earnings information received from a neighbor. SEC v. Douglas F. Whitman and Whitman Capital, LLC, 12-CV-1055 (S.D.N.Y. Feb. 10, 2012), Lit. Rel. No. 22257.

[11]

The SEC filed and settled an action against Anthony Scolaro, a former portfolio manager at the hedge fund investment adviser Diamondback Capital Management, LLC, charging Scolaro with using inside information to trade ahead of the November 29, 2009 announced acquisition of Axcan Pharma Inc. The SEC’s complaint also names Diamondback as a relief defendant. The SEC alleges that Arthur Cutillo and Brien Santarlas, two former attorneys with an international law firm, misappropriated from their law firm material, nonpublic information concerning the acquisition of Axcan, and tipped the inside information, through another attorney, to Zvi Goffer, a proprietary trader at the broker-dealer Schottenfeld Group LLC, in exchange for kickbacks. The SEC alleges that Goffer then tipped the inside information to fellow Schottenfeld proprietary trader Franz Tudor, who then tipped the information to his friend Scolaro. The SEC alleges that based on this inside information, Scolaro traded in the securities of Axcan on behalf of Diamondback, resulting in illicit profits for the fund of approximately $1.1 million. Scolaro consented to the entry of a final judgment that permanently enjoins him from violations of Section 10(b) of the Securities Exchange Act and Rule 10b-5 thereunder, orders him to pay disgorgement of $125,980, interest of $14,420, and civil penalty of $62,945. He is also barred from association with any investment adviser, broker, dealer, municipal securities dealer, municipal advisor, transfer agent, or nationally recognized statistical rating organization. Diamondback, as a relief defendant, has consented to a final judgment ordering it to disgorge $962,486 in gains resulting from

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Scolaro’s trades, plus interest of $110,246. SEC v. Scolaro, 11-CV-6112 (S.D.N.Y. Aug. 31, 2011), Lit. Rel. No. 22078.

In early 2012, the SEC charged a number of hedge fund traders at Diamondback Capital Management and Level Global Investors and the firms with illegal use of inside earnings and performance information. The SEC alleged that, through a succession of tips received by employees of several hedge funds, the funds shared and traded on the information. SeeSEC v. Adondakis, 12-CV-0409 (S.D.N.Y.), Lit. Rel. No. 22230 (Jan. 18, 2012). Diamondback Capital settled the charges, agreeing to pay disgorgement and interest of $6 million and a $3 million civil penalty and consenting to an injunction against future violations of anti-fraud laws. It also entered into a non-prosecution agreement with federal prosecutors. Press Release No. 2012-16 (Jan. 23, 2012), available at www.sec.gov/new/press/2012/2012-16.htm, Lit. Rel. No. 22325 (Apr.10, 2012). The SEC alleged that one of the alleged tippers had received payment for the information. SEC v. Lim, 12 CV 6707 (S.D.N.Y. Sep. 4, 2012), Lit. Rel. No. 22471 (Sep. 5, 2012). Similar criminal charges are pending against a number of those involved in these insider trading activities.

[12]

For several years, regulators have expressed interest in research firms that allegedly match investment advisers and hedge fund managers with consultants or employees of public companies as a means of information brokerage. See Gregory Zuckerman and Peter Lattman, Research Firms, Consultants Draw Scrutiny, Wall St. Journal (Jan. 16, 2007) at C1. Regulators have been investigating whether consultants hired by research firms are providing material, non-public information to investors, either deliberately or inadvertently, in violation of insider trading prohibitions. The focus on research firms has been part of the larger investigation into whether hedge fund managers and other advisers are obtaining and/or exploiting non-public information to improve their investment performance.

In November 2010, the SEC brought its first action involving one of these consultants. The SEC alleged that a French doctor/ consultant, Dr. Yves M. Benhamou, who served on the steering committee of a drug company overseeing a clinical trial, tipped a portfolio manager at a hedge fund about problems encountered during the trial. The complaint further alleged that the portfolio manager subsequently ordered the sale of the entire

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position in the stock held by the healthcare-related hedge funds that he co-managed, avoiding losses of at least $30 million. The complaint alleges that the portfolio manager knew or should have known that Dr. Benhamou was affiliated with the drug trial, that it was improper for Dr. Benhamou to consult with the portfolio manager about the trial, and that Dr. Benhamou breached his duty of confidentiality to the drug company when he provided the information about the trial to the portfolio manager. In April 2011, the SEC charged the portfolio manager, Dr. Joseph F. “Chip” Skowron, for his role in the scheme. SeeSEC v. Skowron, 10-CV-8266 (S.D.N.Y. Nov. 2, 2010, amended Apr. 13, 2011), Lit. Rel. No. 21928. Dr. Benhamou and Dr. Skowron are each charged with violating Section 17(a) of the Securities Act, Section 10(b) of the Securities Exchange Act and Rule 10b-5. The complaint, among other things, seeks injunctive relief, disgorgement, and a financial penalty. On the same day, the U.S. Attorney’s Office for the Southern District of New York announced a criminal action against Dr. Benhamou.

With the filing of the SEC’s amended complaint, the six hedge funds named as relief defendants agreed to settle with the Commission and pay disgorgement of $29,017,156 plus interest of $4,003,669. See id.

[13]

In another case involving expert networks, the SEC alleges that a New York-based hedge fund and four hedge fund portfolio managers and analysts who illegally traded on confidential information obtained from technology company employees moonlighting as expert network consultants. The scheme netted more than $30 million from trades based on material, nonpublic information about companies such as AMD, Seagate Technology, Western Digital, Fairchild Semiconductor, and Marvell. Also charged were the technology company insiders working as expert network consultants to the firm Primary Global Research LLC, who allegedly tipped the confidential information. SeeSEC v. Longoria, 11-CV-0753 (S.D.N.Y. Feb. 8, 2011). While it is legal to obtain expert advice and analysis through expert networking arrangements, it is illegal to trade on material nonpublic information obtained in violation of a duty to keep that information confidential. Each of the defendants was charged with violations of Section 10(b) of the Securities Exchange Act and Rule 10b-5 thereunder, and additionally charges the four hedge fund portfolio managers with aiding and abetting others’

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violations of Section 10(b) and Rule 10b-5 thereunder. The complaint also charges two of the portfolio managers and the hedge fund with violations of Section 17(a) of the Securities Act. On November 9, 2011, defendant Mark Anthony Longoria, one of the insiders working as an expert consultant, agreed to settle charges with the SEC and pay $197,000 in disgorgement and interest.

[14]

The SEC brought two additional expert network cases in 2012. SEC v. Kinnucan and Broadband Research Corp., 12-CV-1230 (S.D.N.Y. Feb. 17, 2012), Lit. Rel. No 22261, and SEC v. Nguyen, 12-CV-5009 (June 26, 2012), SEC Press Release 2012-121, available at http://www.sec.gov/News/PressRelease/Detail/PressRelease/1365171482832. Kinnucan first gained notoriety when he notified his clients that investigators had come to his home in connection with the expert network inquiry. He continued to publicly denounce the investigation. In February, 2012, the SEC charged him and the firm he founded with violations of Section 10(b) of the Exchange Act and Rule 10(b)-5 by obtaining material nonpublic information from employees at various technology companies and sharing the information with hedge fund and investment adviser clients who compensated him for the information and traded on it for substantial profits. The government also brought companion criminal charges to which Kinnucan has pled guilty.

In the Nguyen case, the SEC charged the owner of Insight Research, an equity research firm, with violations of Section 10(b) of the Exchange Act and Rule 10b-5, as well as Section 17(a) of the Securities Act. The SEC claims that Nguyen obtained material nonpublic information from a relative who was an employee at a public company, used it to trade for his own account and tipped his hedge fund clients who also traded in the information.

In a state action alleging expert network insider trading, the Massachusetts’ Secretary of the Commonwealth Securities Division brought charges against Risk Reward Capital Management, RRC Management, the RRC Bio Fund and James A. Silverman, alleging that the parties used the “expert network” firm, Guide-point Global LLC, to gain inappropriate information about clinical trials for biotech drugs. In the Matter of Risk Reward Capital Mgmt. Corp., Docket No. E-2010-0057 (Mass. Sec. Div. Mar. 9, 2011).

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[15]

In 2010, the SEC filed a settled civil enforcement action against Pequot Capital Management, Inc. and Arthur J. Samberg, its Chairman and Chief Executive Officer, for insider trading in the securities of an issuer that had been the subject of rumors that it would miss its earnings estimates. SeeSEC v. Pequot Capital Mgmt., Inc. and Samberg, 3:10-CV-00831-CVD (D. Conn.), Lit. Rel. No. 21540 (May 28, 2010). The complaint alleges that Samberg sought a tip of earnings information from an individual who was an employee of the issuer and who had been recently hired by Samberg to work at Pequot. After the tipper confirmed that the issuer would meet its earnings estimates, Samberg traded the issuer’s securities on behalf of Pequot before the public earnings announcement.

Pequot and Samberg agreed to settle the SEC’s charges, without admitting or denying the allegations against them, and to pay approximately $18 million in disgorgement of trading profits and interest and $10 million in penalties.

[16]

The SEC also separately brought cease and desist proceedings against the tipper related to the same conduct. Those proceedings include allegations that the tipper concealed his receipt of inside information from the SEC staff and failed to disclose email relating to the earnings information despite subpoenas and direct questions that required him to do so. See In the Matter of David E. Zilkha, Investment Advisers Act Rel. No. 3032 (May 27, 2010). The SEC later announced that it awarded $1 million to the tipper’s former wife for information provided in connection with the case against Pequot and Samberg. Lit. Rel. No. 21601 (July 23, 2010).

[17]

In SEC v. Shah and Kwok, 12-CV-4030 (S.D.N.Y. May 21, 2012), Lit. Rel. No. 22372 (May 22, 2012), the SEC charged a former executive of Yahoo! and a former manager of mutual funds with insider trading in violation of Section 10(b) of the Exchange Act and Rule 10b-5. The complaint charged that that the Yahoo executive and the fund manager both traded on confidential information they had provided one another. The defendants consented to a permanent injunction and a bar to service as an officer or director of a public company, with disgorgement and civil penalties to be determined. Shah also agreed to an industry bar in an administrative proceeding. The defendants were also charged and pled guilty in parallel criminal actions.

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[18]

The SEC brought charges against a dually registered investment adviser and broker-dealer for failing to adequately establish, maintain, and enforce policies and procedures designed to prevent misuse of material nonpublic information obtained from customers and advisory clients. In re Wells Fargo Advisors, L.L.C., Investment Advisers Act Rel. No. 3958 (Sept. 22, 2014). The SEC charged the adviser with “inadequate design of the policies and procedures” and failing to “effectively maintain and enforce them” in connection with a 2010 private equity transaction that took Burger King private. The adviser had “look back” review policies in place, which consisted of analyzing factors suggesting inside information and including relevant public information in the file. Those policies, however, failed to provide for review and coordination across multiple units. The SEC alleged that the broker-dealer’s inadequate evaluation of the policies allowed for poor compliance. Additionally, the broker-dealer’s compliance officer ignored numerous “red flags” such as the timing and amount of purchases by the adviser and his clients and failed to elevate the review to supervisors as required by policy when there are sufficient “red flags.” She did not include any information in the file, and closed the review with a single notation of “no findings.” During its review, the SEC found that at least 40 reviews were not performed for up to 10 months, information was repeatedly left out of files, and the elevation of cases with “red flags” policy was not enforced.

Other compliance units within the adviser also failed to adequately review these transactions. Three separate units failed to coordinate on this transaction despite multiple warning signs such as high concentration and awareness that the adviser possessed nonpublic information when he produced the offering documents before a public announcement. Because there was no communication between the units, the file was closed without adequate review. The adviser also unreasonably delayed production of documents and provided the compliance officer’s altered document to the SEC in the course of its review.

To settle with the SEC, the adviser admitted to violating Sections 15(g) and 17(b) of the Exchange Act and Sections 204A and 204(a)of the Advisers Act. It also agreed to a cease and desist order, a censure, a civil penalty of $5 million, and to remedial undertakings regarding its compliance and nonpublic information policies.

 

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[J] RFPs and the Marketing of Investment Management Services

Section 206 of the Investment Advisers Act requires investment advisers to use care in responding to client requests for information.

[1]

In In the Matter of CapitalWorks, Investment Advisers Act Rel. No. 2520 (June 6, 2006), the SEC charged an investment adviser and its Chief Compliance Officer for fraudulent representations in its responses to investor Requests for Proposal, which are solicitations to advisers from prospective investors seeking information about the adviser’s investment management services, generally in the form of a questionnaire. The alleged misstatements related to representations about SEC deficiency letters that had been issued to the adviser. In 2002, the SEC issued a deficiency letter to CapitalWorks, identifying several deficiencies relating to marketing, advertising, custody of client assets, assignment of advisory contracts and internal controls. The Chief Compliance Officer (who was also the firm’s Director of Marketing) allegedly worked on the adviser’s response to the deficiency letter, which indicated the measures CapitalWorks intended to address the deficiencies.

Subsequent to the adviser’s receipt of the deficiency letters, the Chief Compliance Officer/Director of Marketing responded to additional RFPs. In some of the responses, CapitalWorks allegedly represented that the SEC did not find any deficiencies during its examination of the adviser. The adviser failed to adopt written procedures to prevent violations of the Investment Advisers Act and, in particular, for responding to RFPs. The SEC charged further that the Chief Compliance Officer had aided and abetted a violation of Rule 206(4)-7 for failing to ensure that the adviser adopted such procedures. The settlement provided for the payment of civil penalties, a censure, a cease and desist order, and various undertakings related to corporate governance reforms.

[2]

In In the Matter of Aletheia Research and Mgmt., Inc., Investment Advisers Act Rel. No. 3197 (Mar. 3, 2011), the SEC instituted settled administrative proceedings against Aletheia Research and Management, Inc. (“Aletheia”) and two of its principals, alleging that Aletheia, in its responses to requests for proposals and other inquiries from prospective investors, did not disclose accurate information about whether it had been

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subject to “findings,” “deficiencies” or “corrective actions” in connection with past SEC examinations. Aletheia agreed to pay $200,000 in penalties, and each principal agreed to pay $100,000 as part of the settlement.

[K] Gifts and Gratuities

An adviser’s acceptance of gifts or gratuities from broker-dealers or other affiliated personnel raises the possibility that the benefits conveyed may impair the adviser’s fiduciary obligations to place investor-client interests above his own. Gratuities from a broker to an adviser potentially may influence the adviser’s decision regarding where to direct brokerage execution. FINRA Rule 3220 expressly prohibits brokers from providing customers with gifts or gratuities worth more than $100.

[1]

In In the Matter of Jefferies & Co., Inc. and Scott Jones, Exchange Act Rel. No. 54861 (Dec. 1, 2006), the SEC alleged that certain Jefferies & Co., Inc. (“Jefferies”) employees entertained fund advisers with over $2 million in travel, gifts and gratuities. Although Jefferies’ policies prohibited employees from giving goods or services to a customer in excess of that permitted by NASD Rule 3060, and placed restrictions on reimbursement, the policies allegedly were neither followed nor enforced. The SEC averred that the payment of gifts and gratuities to investment advisers aided and abetted the violation of Section 17(e)(1) of the Investment Company Act (prohibiting affiliated persons of Investment Companies from accepting compensation from other sources for the purchase and sale of property to or for the investment company). The SEC also maintained that Jefferies violated the Exchange Act’s record-keeping requirements (Section 17(a)(1) and of the Exchange Act and Rule 17a-3), failed to supervise by approving prohibited uses of travel and entertainment as business expenses, and failed to enforce firm policies designed to ensure compliance with NASD Rule 3060, respectively. Without admitting or denying the allegations, Jefferies agreed to disgorgement, censure and a cease and desist order.

[2]

The same month as the Jefferies settlement, Fidelity Investments announced that its independent trustees had accepted the recommendation of an internal investigation report, and that Fidelity intended to refund $42 million to certain of its funds.

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The internal investigation arose as a response to an SEC inquiry into whether Fidelity traders had directed brokerage to firms that gave those gifts and gratuities. Although Fidelity reported that its investigation did not demonstrate that the funds had received unfavorable brokerage execution, it resolved uncertainty in favor of its funds. See Jennifer Levitz and William M. Bulkeley, Fidelity Imposes Penalty On Itself After Gifts Probe, Wall St. Journal, Dec. 22, 2006, at C3.

[3]

In In the Matter of Fidelity Mgmt. & Research Co. and FMR Co., Inc., Investment Advisers Act Rel. No. 2713 (Mar. 5, 2008), the SEC alleged that two senior executives and ten equity traders associated with the adviser to the Fidelity group of mutual funds allegedly accepted more than $1.6 million in travel, entertainment and gifts (including expensive trips, lodging at fine hotels, tickets to premium sporting events and concerts, and illegal drugs) from brokerage firms seeking business from the adviser. The SEC alleged that the employees’ receipt of travel, entertainment and gifts influenced the selection of execution brokers, resulting in the likelihood of higher execution costs to advisory clients. The SEC asserted that the alleged failure to assure that factors other than best execution were considered in the traders’ brokerage selection, and the alleged failure to disclose that receipt of travel, entertainment, and gifts from brokers were factors in the selection process, violated Section 206(2) of the Advisers Act. The SEC also asserted violations of Sections 204, 206(2) and 207 of the Advisers Act and Rule 204-1 thereunder and Section 34(b) of the Investment Company Act for the adviser’s alleged failure to include the broker’s gifts in the itemized list of factors used to select brokers that it reported on its Forms ADV and fund statements of additional information. The SEC additionally alleged violations of Section 17(e)(1) of the Investment Company Act, prohibiting affiliated persons of a registered investment company from accepting “from any source any compensation (other than regular salary or wages from such registered company) for the purchase or sale of any property” of the investment company by accepting gifts from brokers who sought and obtained transactions for advisory clients. Further, the SEC alleged that the adviser failed to adopt and implement controls sufficient to detect, deter and prevent its executives’ receipt of travel, entertainment and gifts paid for by brokers, violating its obligation to reasonably supervise its executives

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and traders with a view toward preventing their violations of Section 17(e)(1) of the Investment Company Act, as required by Advisers Act Section 203(e)(6). Finally, the SEC alleged that by allowing the traders’ use of an unrecorded electronic messaging network to communicate to brokers, Fidelity violated its obligations under Section 204 of the Advisers Act and Rule 204-2 thereunder to keep true, accurate and current books and records relating to its investment advisory business, including originals or copies of documents reflecting its communications with brokerage firms related to the placing or execution of orders to purchase or sell securities. Without admitting or denying the allegations, the adviser agreed to a cease and desist order, censure, various undertakings related to corporate governance and an $8 million civil penalty.

In related matters, the SEC settled enforcement actions against the individual traders for aiding and abetting and causing the adviser’s primary violations, additionally charging the senior executives with supervisory violations. Without admitting or denying the SEC’s evaluations, the individuals consented to cease and desist orders, industry bars, disgorgement and civil penalties. See, e.g., In the Matter of Scott E. DeSano, Investment Advisers Act Rel. No. 2815 (Dec. 11, 2008).

[L] Conflicts of Interest and Affiliated Transactions

Conflicts of interest and affiliated transactions have been the subject of on-going focus by the SEC, and this section addresses general examples of actions brought by the Commission.

[1]

Rule 12b-1 of the Investment Company Act permits a registered investment company to pay distribution costs for fund shares pursuant to a written plan approved by the funds’ board of directors. It further requires the adviser to provide fund boards such information as is reasonably necessary for the board to determine the appropriateness of the 12b-1 Plan.

[a]

Bisys Fund Services, Inc, a mutual fund administrator, allegedly entered into a series of undisclosed side agreements with fund advisers, agreeing to allocate a portion of the funds’ administrative fee toward marketing of the mutual funds. In the Matter of Bisys Fund Services, Inc., Investment Advisers Act Rel. No. 2554 (Sept. 26, 2006).

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In exchange, fund advisers allegedly recommended Bisys as an administrator to the funds’ boards. The SEC claimed that Bisys had entered into 27 such agreements, diverting a total of $230 million in administration fees to marketing. Neither the advisers nor Bisys disclosed the side arrangements to the Funds’ boards or shareholders. The SEC maintained that the arrangement enabled advisers to pay for marketing expenses with fund assets, and that otherwise “the fund advisers would have been required to pay the [marketing] expenses using their own assets.”

The SEC charged Bisys with aiding and abetting (1) the advisers’ breach of fiduciary duty under Section 206 of the Investment Advisers Act, (2) Section 34(b) of the Investment Company Act (prohibition against materially misleading disclosures in a registration statement), and (3) Rule 12b-1(d) under Section 12(b) of the Investment Company Act. Without admitting or denying the allegations, Bisys agreed to cease and desist from causing future violations and to pay disgorgement and civil penalties.

[b]

In In re Amsouth Bank, N.A and Amsouth Asset Mgmt., Inc., Investment Advisers Act Rel. No. 2784A (Sept. 23, 2008), the SEC alleged that an investment adviser violated Sections 206(1) and 206(2) of the Investment Advisers Act, and Section 34(b) of the Investment Company Act, and aided and abetted the mutual fund’s violation of Rule 12b-1 of the Investment Company Act, by failing to disclose that the funds’ administrator rebated 1/3 of its administrative fee to pay for the advisers’ marketing and non-marketing expenses in exchange for the adviser’s continued recommendation of the administrator to the funds’ Board of Directors. Without admitting or denying the allegations, the adviser consented to a cease and desist order, disgorgement and interest of approximately $10 million, and a $1.5 million civil penalty.

[c]

In related actions, the SEC alleged that the former President of Bisys Fund Services and member of the AmSouth Fund Board of Trustees, and the former Bisys Vice President and General Counsel willfully aided and abetted AmSouth Asset Management’s violations of Sections 206(1) and 206(2) of the Investment Advisers Act. In the Matter

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of J. David Huber, Investment Advisers Act Rel. No. 2884 (May 28, 2009); In the Matter of Melissa M. Hurley, Investment Advisers Act Rel. No. 2885 (May 28, 2009). The SEC alleged the former President failed to disclose the side agreements to the AmSouth Fund Board and to Fund shareholders. The SEC alleged the former General Counsel failed to disclose material facts to the Fund Board regarding the side letters, including the nature of the agreements, the exchange arrangement, and the source of marketing funds. Without admitting or denying the allegations, the former President and General Counsel each agreed to a cease and desist order, disgorgement and interest; the former General Counsel also agreed to a monetary penalty.

[2]

In In the Matter of Smith Barney Fund Mgmt., LLC and Citigroup Global Markets, Investment Advisers Act Rel. No. 2390 (May 31, 2005), Citigroup Asset Management (“CAM”), a registered investment adviser, allegedly negotiated a substantial discount for the services of the transfer agent for the funds. Thereafter, CAM replaced its existing transfer agent with a CAM affiliate. The SEC claimed that under a side agreement, the affiliate subcontracted the transfer agent work to the original transfer agent, which performed substantially the same services it had performed previously, but at discounted rates, while the affiliate transfer agent performed limited oversight and quality control functions.

The SEC alleged that CAM breached its fiduciary obligations by failing to disclose the contents of the side-arrangements to the funds’ boards when recommending the new transfer agent. Specifically, the adviser had a duty to inform the board that its existing transfer agent was offering nearly identical services as it had previously performed at a significant discount and that its affiliated transfer agent stood to gain significant profit for performing limited oversight functions over those services. The SEC charged that “[t]his self-interested proposal permitted the Adviser and its affiliates to profit from the transfer agent function at the expense of the funds” in violation of its fiduciary obligations under Section 206 of the Investment Advisers Act. Without admitting or denying the allegations, CAM agreed to pay disgorgement and civil penalties, and consented to a cease and desist order.

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[3]

In In the Matter of New York Life Investment Mgmt., LLC, Investment Advisers Act Rel. No. 2883 (May 27, 2009), the SEC settled an administrative enforcement action against New York Life Investment Management LLC (“NYLIM”) regarding the adviser’s disclosures to a mutual fund board during the annual investment advisory contract renewal process, including certain disclosures about the cost to shareholders of a guarantee feature applicable to their investment in the fund. The mutual fund involved was an index fund with a guarantee feature pursuant to which an affiliate of the adviser agreed to make up certain shortfalls in the value of a shareholder’s investment in the fund. The SEC charged that the adviser had urged the fund’s board to consider the guarantee feature in evaluating the management fees it proposed, but failed to provide the board with factual information to evaluate the cost of the guarantee. The SEC also alleged that at the same time the adviser was claiming that the guarantee should be considered to justify the fund’s management fees, the adviser filed prospectuses, annual reports, and registration statements in which it represented that there was no charge to the fund or its shareholders for the guarantee. Without admitting or denying the allegations, NYLIM agreed to a cease and desist order, censure, and disgorgement in the amount of $3,950,075, interest and a civil penalty.

[4]

In In the Matter of Renberg Capital Mgmt., Inc., Investment Advisers Act Rel. No. 2064. (Oct. 1, 2002), the SEC alleged that Renberg failed to seek best execution in securities transactions because cross trades between certain client accounts had the effect of subjecting some accounts to higher execution costs than others. Renberg agreed to a number of undertakings and was censured, ordered to cease and desist from violation of Section 206(2) of the Advisers Act and required to pay a $40,000 penalty.

[5]

The SEC alleged in an administrative proceeding that a fund manager for multiple hedge funds improperly transferred $2 million from one fund to a second fund to fulfill a redemption request in the second fund and that the fund manager made material misstatements regarding his educational background in the funds’ offering materials. The fund manager agreed to a cease and desist order, a bar from association with an investment adviser with the right to reapply in three years, and a

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penalty of $35,000. In the Matter of Steven Andrew Roberts, Investment Advisers Act Rel. No. 2662, Investment Co. Act Rel. No. 27997, (Sept. 27, 2007).

[6]

In SEC v. WealthWise, LLC and Jeffrey A. Forrest, 2:08-CV-06278-GAF-SS (C.D. Cal.), Lit. Rel. No. 20737 (Sept. 24, 2008), an investment adviser allegedly recommended that its clients invest in a hedge fund without disclosing a side agreement it had with the hedge fund manager whereby the adviser received a portion of the manager’s performance fee. The hedge fund collapsed in 2007, and the investment adviser’s clients lost nearly all of the money they invested in the fund. The SEC’s complaint named the adviser and its principal, and contended that their alleged failure to disclose a material conflict of interest when making investment recommendation to its clients violated Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, and Sections 206(1) and 206(2) of the Investment Advisers Act. Without admitting or denying the allegations, the adviser settled with the SEC, agreeing to a permanent injunction against future violations, disgorgement, interest, and a civil penalty.

[7]

In In the Matter of Thomas C. Palmer and Aeneas Capital Mgmt., L.P., Investment Advisers Act Rel. No. 2757 (July 23, 2008), the director of operations for hedge fund adviser allegedly transferred $13.4 million in cash from two separate hedge funds managed by the adviser to a third hedge fund in order to satisfy margin calls. The SEC asserted that because the transfers among funds were not disclosed, they were inconsistent with the adviser’s fiduciary obligations, and that the director therefore willfully or recklessly aided and abetted the adviser’s violation of Investment Advisers Act Sections 206(1) and 206(2). The SEC additionally alleged that the adviser failed to establish or implement policies and procedures for the approval and/or detection of intra-fund cash transfers, and thereby failed to reasonably supervise the director of operations in violation of Section 203(e)(6) of the Investment Advisers Act. Without admitting or denying the allegations, the director consented to a cease and desist order, a 12-month suspension from associating with any investment adviser, and a civil monetary penalty in the amount of $65,000. The adviser also without admitting or

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denying the allegations, consented to censure and a monetary penalty of $150,000.

[8]

In In the Matter of Banc of America Investment Services, Inc. and Columbia Mgmt. Advisors, LLC, Investment Advisers Act Rel. No. 2733 (May 1, 2008), the SEC settled an action against an investment adviser for alleged misrepresentations made to clients for whom it maintained discretionary mutual fund wrap fee accounts between July 2002 and December 2004. During that period, the adviser allegedly deviated from its stated methodology for selecting funds for its wrap accounts, instead emphasizing subjective factors that favored its proprietary funds, from which it earned asset-based fees. The adviser allegedly did not disclose the purported conflict it had as adviser to clients with wrap fee accounts and as adviser to the affiliated fund from which it derived asset-based fees. The SEC asserted that the alleged direction of client assets to the adviser’s affiliated funds breached its fiduciary obligations to select the most appropriate mutual funds on their wrap fee clients’ behalf regardless of whether the funds were affiliated or not. The SEC additionally alleged that the adviser’s alleged failure to adhere to its stated selection methodology rendered the public disclosures of that methodology misleading, and that the adviser’s alleged failure to disclose the scope of its conflict of interests and bias in the fund selection process constituted a material omission. On the basis of the alleged conduct, the SEC asserted that the adviser violated Sections 17(a)(2) of the Securities Act, and Section 206(2), 206(4) and 207 of the Advisers Act, and Rule 206 (4)-1(a)(5) thereunder. Without admitting or denying the allegations, the respondent consented to censure, a cease and desist order, approximately $10 million in disgorgement, interest and civil penalties, and various undertakings.

[9]

In In the Matter of Michael R. Donnell, Investment Advisers Act Rel. No. 2718 (Mar. 11, 2008), the SEC alleged that Michael Donnell, an officer of an investment adviser, failed to disclose that a sub-adviser he recommended to carry out investment strategies for a fund managed by the adviser had agreed to pay a substantial portion of its sub-advisory fee to his mother. The SEC asserted that the alleged arrangement between the sub-adviser and Donnell’s mother constituted a material conflict of interest, and Donnell’s failure to disclose the conflict to the

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fund’s Board of Directors aided and abetted the adviser’s violation of Sections 206(1) and 206(2) of the Advisers Act. Without admitting or denying the SEC’s allegations, Donnell consented to a cease and desist order, a bar from association with any investment adviser, and a $50,000 civil monetary penalty.

[10]

In In the Matter of INTECH Investment Mgmt., LLC and David E. Hurley, Investment Advisers Act Rel. No. 2872 (May 8, 2009), a registered investment adviser and the adviser’s Chief Operating Officer allegedly failed to put in place written policies addressing conflicts of interest related to the adviser’s voting authority over client securities in violation of Section 206(4) and Rule 206(4)-6(a) and 206(4)-6(c) of the Investment Advisers Act. The adviser voted proxies for union-affiliated and other clients who delegated authority to the adviser in accordance with Institutional Shareholder Services (“ISS”) guidelines that corresponded to AFL-CIO proxy voting recommendations (“ISS-PVS”), without adequately describing its proxy voting policies or disclosing potential conflicts arising from use of ISS-PVS Guidelines, instead of more general ISS guidelines. The adviser’s policy did not address the potential conflicts caused by the use of the ISS-PVS Guidelines for all clients while the adviser maintained an interest in the retention of union-affiliated clients. Without admitting or denying the allegations, the adviser and the Chief Operating Officer agreed to a cease and desist order, censure, and penalties.

[11]

See also In the Matter of M.A.G. Capital, LLC and David F. Firestone, Investment Advisers Act Rel. No. 2849 (Mar. 2, 2009) (settling with investment adviser and principal for taking warrants from hedge funds without compensating the funds or disclosure to investors).

[12]

In In re Valentine Capital Asset Mgmt., Investment Advisers Act Rel. No. 3090 (Sept. 29, 2010), the SEC found that the adviser “fail[ed] to fully and adequately disclose a material conflict of interest” by not informing its clients that the adviser would receive an additional commission if its clients accepted its recommendation to switch from one series of a managed fund to another series in that same fund. The SEC reached this conclusion although the adviser had fully disclosed all commission costs to its clients. Respondents were censured, ordered to cease and desist from violations of Section 206(2) of the

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Advisers Act. The firm was ordered to pay disgorgement of $394,710 and interest of $37,296, and the adviser was ordered to pay a civil money penalty in the amount of $70,000.

[13]

In In the Matter of Wunderlich Securities,Inc., Rel. No. 64558, Investment Advisers Act Rel. No. 3211 (May 27, 2011), the SEC charged Wunderlich Securities, Inc. (WSI) with overcharging advisory clients for commissions and other transactional fees, failing to satisfy the disclosure and consent requirements of Section 206(3) of the Advisers Act when WSI engaged in principal trades with advisory clients, failing to adopt, implement and review written policies and procedures, and failing to establish, maintain, and enforce a written code of ethics.

[14]

The SEC alleges that Montford Associates, a registered investment adviser, and Ernest Montford, the firm’s sole owner/CEO, defrauded their clients by failing to disclose material conflicts of interest. Specifically, Montford and the firm told clients and disclosed to the Commission that they were independent and did not accept any fees from investment managers. However, they recommended that certain clients invest in two hedge funds managed by SJK Investment Management, LLC (SJK) without disclosing that Montford Associates had a compensation arrangement with, and ultimately received $210,000 from, SJK for recommending that clients invest in the hedge funds and providing certain administrative services to SJK. In the Matter of Montford and Company, Inc. d/b/a Montford Associates, and Ernest V. Montford, Sr., Investment Advisers Act Rel. No. 3273 (Sept. 7, 2011).

[15]

The SEC filed a civil action against Warren D. Nadel, his broker-dealer, Warren D. Nadel & Co. (WDNC), and his investment advisory firm, Registered Investment Advisers, LLC (RIA), alleging that between 2007 and 2009, defendants fraudulently induced clients to invest tens of millions of dollars in a purported investment program in order to receive over $8 million in commissions and fees. They allegedly overstated the value and liquidity of client holdings by misrepresenting and concealing critical information about the way they were executing it. For example, Defendants repeatedly informed clients that they were executing open-market transactions on the clients’ behalf, when in fact most of these transactions simply consisted of trades between advisory accounts controlled by defendants at

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inflated prices made up by Nadel. This created the false impression of liquidity for these securities, bolstering the perception of the inflated values that defendants reported to their clients. SEC v. Nadel, 11-CV-0215 (E.D.N.Y. Jan. 13, 2011), Lit. Rel. No. 21812.

[16]

The SEC instituted settled administrative proceedings against two individuals, former co-portfolio managers of the Tax Free Fund for Utah, who, while working for Aquila Investment Management LLC, allegedly charged municipal bond issuers a onetime “credit monitoring fee” on certain non-rated and private placement bonds in TFFU’s portfolio. See In the Matter of Kimball L. Young, Rel. No. 63675, Investment Advisers Act Rel. No. 3133, Investment Co. Act Rel. No. 29549 (Jan. 7, 2011); In the Matter of Thomas S. Albright, Rel. No. 63676, Investment Advisers Act Rel. No. 3134, Investment Co. Act Rel. No. 29550 (Jan. 7, 2011). The order alleges that any credit monitoring work the respondents performed would have been part of their regular job responsibilities; yet they allegedly did not disclose the fees to Aquila or TFFU. In settling the charges, the respondents agreed to disgorgement of the fees, penalties and industry bars.

[17]

In In the Matter of Sam P. Douglass and Anthony R. Moore, Investment Advisers Act Rel. Nos. 3166 and 3169, Investment Co. Act Rel. Nos. 29588 and 29594 (Feb. 24 and Mar. 3, 2011), the SEC had charged Douglass, the chairman of a fund who also controlled the fund’s outgoing investment adviser, with making misleading disclosures regarding a payment of approximately $400,000 by the fund to a senior fund officer in connection with the replacement of the fund’s investment adviser in June 2005. Moore, who controlled the fund’s new investment adviser, knew about the deal before the new investment adviser took over, and sought reimbursement of $535,000 from the fund for “unforeseen expenses” without informing the fund’s board or its CFO that this was tied to the senior fund officer’s compensation arrangement. The SEC alleged numerous violations of the Exchange Act and of Section 206(2) of the Advisers Act. Douglass and Moore each agreed to cease and desist orders, censure and a $25,000 civil penalty,

[18]

The SEC instituted settled administrative proceedings against Pegasus Investment Management, LLC and several of its

====== 2-696 ======

principals for violation of duties to fund investors, stemming from PIM’s alleged receipt of undisclosed cash payments in connection with its trading activities. See In the Matter of Pegasus Investment Mgmt., Investment Advisers Act Rel. No. 3215 (June 15, 2011). The SEC alleges that these payments were received from a proprietary trading firm in return for combining that firm’s trades with PIM’s trades, thus enabling the trading firm to obtain reduced commissions. In addition, the SEC alleged that PIM improperly treated the cash payments as its own assets rather than those of its fund investors. In settling the charges, PIM agreed to disgorgement of the allegedly improper fees totaling $90,000 plus interest, and each PIM principal agreed to additional financial penalties.

[19]

JSK Associates, Inc., a registered investment adviser, together with its President and Chief Compliance Officer and its Vice President, settled an administrative proceeding relating to failure to disclose benefits an affiliated broker-dealer derived from trading in advisory client accounts and failure to obtain required consent to riskless principal transactions between advisory clients and the affiliated broker-dealer. The adviser was censured and ordered to pay a $60,000 penalty. The officers were censured and ordered to pay penalties of $10,000. Respondents were ordered to pay disgorgement of $60,000 plus interest. In the Matter of JSK Associates, Inc., Jerome S. Keenan, and Paul Dos Santos, Investment Advisers Act Rel. No. 3175 (Mar. 14, 2011).

[20]

In In the Matter of Focus Point Solutions, Inc., Investment Advisers Act Rel. No 3458, Investment Co. Act Rel. No. 30196 (Sept. 6, 2012), the SEC alleged that an investment adviser, Focus Point, its principal and a related entity allegedly failed to disclose material conflicts of interest. They did not disclose compensation Focus Point received through a revenue-sharing agreement with a broker-dealer. In connection with becoming a sub-adviser to a mutual fund, Focus Point told the fund’s board that it would receive only its sub-advisory fee; however, it received supplemental compensated from the primary adviser. In addition, an entity related to Focus Point voted client proxies in favor of Focus Point’s becoming the mutual fund’s sub-adviser even though Focus Point would benefit financially by the vote.

The SEC alleged direct and aiding and abetting violations of Sections 206(2) and (4) and 207 of the Advisers Act,

====== 2-697 ======

Rule 206(4) under the Advisers Act and Section 15(c) of the Investment Company Act. The respondents settled the matter and were ordered to cease and desist from future violations and were censured. Focus Point was ordered to pay disgorgement of $900,000 plus interest and a penalty of $100,000 and its related entity was ordered to pay a penalty of $50,000. Focus Point agreed to an undertaking to retain an independent compliance consultant and, subject to certain conditions, implement its recommendations and to provide a copy of the order to existing clients and to new clients for one year. In a press release, the SEC focused particularly on Focus Point’s undisclosed revenue-sharing arrangements and announced an initiative relating to revenue-sharing arrangements between advisers and brokers. See Order Instituting Proceedings In the Matter of Focus Point Solutions, Inc., Investment Advisers Act Rel. No. 3458, Investment Co. Act Rel. No. 30196 (Sept. 6, 2012), available at http://www.sec.gov/litigation/admin/2012/ia-3458.pdf.

[21]

In In the Matter of Martin Currie Inc. and Martin Currie Investment Mgmt. Ltd., Investment Advisers Act Rel. No. 3404, Investment Co. Act Rel. No. 30062 (May 10, 2012), the SEC alleged that the investment adviser to both a registered investment company and a hedge fund caused the funds to engage in a joint transaction that benefited the hedge fund at the expense of the registered investment company. In this joint transaction, the hedge fund held illiquid securities of an issuer. The registered investment company purchased securities of the issuer and the issuer used the proceeds to redeem the illiquid securities held by the hedge fund. The SEC alleged that this conflict of interest was not adequately disclosed to the board of the registered investment company. Respondents agreed to a cease and desist order, censure and payment of an $8.3 million penalty.

[22]

The SEC brought an action against Frank Mazzola, a manager of private investment funds, alleging that he engaged in improper self-dealing and made false statements to investors in funds created to invest in Facebook and other companies prior to their IPOs. The fund managers received fees in excess of the 5% commissions on the funds’ acquisition of Facebook stock and resale of fund interests to new investors as disclosed in offering materials. The complaint alleges violations of Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act, Section 206(4)

====== 2-698 ======

of the Advisers Act and related rules and seeks an injunction, disgorgement and monetary penalties. SEC v. Frank Mazzola, CV-12-1258. (N.D. Cal. Mar. 14, 2012), Lit. Rel. No. 22292.

[23]

In a settled action involving pre-IPO investment in Facebook shares, the SEC charged Laurence Albukerk, a manager of private investment funds, with concealing compensation earned in connection with two funds he managed, in violation of Section 17(a)(2) of the Securities Act and Section 206(4) of the Advisers Act and Rule 206-4(8) thereunder. The offering materials for the Funds disclosed a 5% fee for an initial investment in the fund and a 5% fee when the shares were distributed to investors after a Facebook IPO. Albukerk allegedly arranged for additional compensation through other fees and mark-ups with the result that investors in the funds paid significantly more than the disclosed fees. After receipt of an SEC subpoena, Albukerk made limited disclosure of the additional compensation and offered investors rescission. In settling the action, Albukerk and his firm agreed to a cease and desist order, payment of over $200,000 in disgorgement and interest, and $100,000 in penalties. In the Matter of Laurence Albukerk, Investment Advisers Act Rel. No. 3383 (Mar. 14, 2012).

[24]

In In the Matter of Oxford Investment Partners, LLC and Walter J. Clarke, Investment Advisers Act Rel. No. 3412, Investment Co. Act Rel. No. 30086 (May 30, 2012), the SEC alleged that Clarke, the owner of a registered investment adviser, violated Sections 206(1), (2) and (4) of the Advisers Act. The SEC alleged that Clarke sold an interest in the adviser to a client at an inflated price and recommended and placed clients in investments in which Clarke and the adviser had an interest, but did not disclose this conflict to the clients.

[25]

The SEC also brought administrative proceedings alleging that Western Pacific Capital Management, LLC, a registered investment adviser, and O’Rourke, its sole owner, violated provisions of the Securities Act and the Exchange Act and Sections 206(1), (2), (3) and (4) of the Advisers Act and Rule 206(4)-8 thereunder. The SEC alleged that the adviser and O’Rourke failed to disclose that the adviser had a conflict due to its receipt of a 10% fee if a securities offering was successful; used a fund’s assets to resolve a dispute with another client; and made material misstatements to investors regarding a fund’s liquidity.

====== 2-699 ======

In the Matter of Western Pacific Capital Mgmt., LLC, and Kevin James O’Rourke, Investment Advisers Act Rel. No. 3313, Investment Co. Act Rel. No. 29859 (Nov. 10, 2011). In August 2013, Philip A. Falcone and Harbinger Capital Partners became the first investment adviser to agree to a statement of wrongdoing in a settlement agreement with the SEC. The consent agreement states that Falcone improperly borrowed $113.2 million from the Harbinger Capital Partners Special Situations Fund (SSF) at an interest rate less than SSF was paying to borrow money, to pay his personal tax obligation, at a time when Falcone had barred other SSF investors from making redemptions, and did not disclose the loan to investors for approximately five months.

Falcone and Harbinger further granted favorable redemption and liquidity terms to certain large investors in HCP Fund I, and did not disclose certain of these arrangements to the fund’s board of directors and the other fund investors. During the summer of 2006, Falcone heard rumors that a Financial Services Firm was shorting the bonds of the Canadian manufacturer, and encouraging its customers to do the same. In September and October 2006, Falcone retaliated against the Financial Services Firm for shorting the bonds by causing the Harbinger funds to purchase all of the remaining outstanding bonds in the open market. Falcone and the other Defendants then demanded that the Financial Services Firm settle its outstanding transactions in the bonds and deliver the bonds that it owed. Defendants did not disclose at the time that it would be virtually impossible for the Financial Services Firm to acquire any bonds to deliver, as nearly the entire supply was locked up in the Harbinger funds’ custodial account and the Harbinger funds were not offering them for sale. Due to Falcone’s and the other Defendants’ interference with the normal interplay of supply and demand in the bonds, the bonds more than doubled in price during this period.

The settlement submitted to the district court for approval requires Falcone to pay $6,507,574 in disgorgement, $1,013,140 in prejudgment interest and a $4 million penalty. The Harbinger entities are required to pay a $6.5 million penalty. Falcone consented to a bar from association with any broker, dealer, investment adviser, municipal advisor, transfer agent or nationally recognized statistical rating organization, with a right to reapply after five years. The bar permits Falcone to assist with the

====== 2-700 ======

liquidation of his hedge funds under the supervision of an independent monitor. See consent agreement in SEC v. Philip A. Falcone, No. 12 Civ. 5027 (PAC) (S.D.N.Y. Aug. 19, 2013), available at http://www.sec.gov/litigation/litreleases/2013/consent-pr2013-159.pdf.

[26]

In In the Matter of Total Wealth Mgmt., Inc., Investment Advisers Act. Rel. No.3818 (Apr. 15, 2014), the SEC initiated proceedings against an investment adviser and its principals for breaching fiduciary duties, failing to disclose their receipt of revenue sharing fees, making material misrepresentations to clients concerning the extent of due diligence performed on recommended investments, and violating the custody rule. The principals allegedly aided and abetted the foregoing violations.

The adviser had revenue sharing agreements in place as early as 2008, creating “clear” conflicts of interest for the adviser and its principals. Under the agreements, other funds paid the adviser a fee when the adviser placed clients’ investments in those funds. The adviser then paid its principals, through their separately established “side entities,” a percentage of all of the fees that it received. The side entities allegedly issued invoices to the adviser to conceal the receipt of those fees. According to the SEC’s Order, the Chief Compliance Officer signed off on the adviser’s 2010 Form ADV, which stated that the adviser “may” receive revenue sharing fees but failed to disclose that the adviser and its principals had already received such fees—thereby breaching their fiduciary duties to their clients.

The SEC further alleged the adviser misled investors as to the extent of due diligence performed, and that the adviser and its principals either violated or aided and abetted antifraud provisions of federal securities laws, the Custody rule, and Form ADV disclosure rules.

In the Order, the SEC sought disgorgement and civil penalties, a cease and desist order, and remedial undertakings. As of November 21, 2014, an Offer of Settlement pending between the SEC and the adviser was withdrawn due to concerns of potential misuse of investor funds to pay for the settlement. The SEC began a review of documents to determine the source of the proposed settlement payments and the action remains pending. In the Matter of Total Wealth Mgmt., Inc., Admin.

====== 2-701 ======

Proc. File No. 3-15842, Initial Decision Rel. No. 860 (Nov. 21, 2014).

The SEC later sued adviser and its principal for wrongfully using client money to pay the settlement of the administrative proceedings. SEC v. Total Wealth Management, Inc., Civil Action No. 15-CV-0226-BAS-DHB. The SEC also terminated the initial settlement and subsequently settled with additional charges and a larger settlement. In the Matter of Total Wealth Mgmt., Inc., Jacob Keith Cooper, Nathan McNamee, and Douglas David Shoemaker, Securities Act Rel. No. 9990, Securities Exchange Act Rel. No. 76643, Investment Advisers Act Rel. No. 4292, Investment Co. Act Rel. No. 31936 (Dec. 14, 2015).

[27]

In September 2014, the SEC charged an investment adviser with failing to maintain an adequate internal compliance system to prevent violations of federal securities regulations after acquiring Lehman Brothers Inc.’s advisory business in 2008. The SEC alleged that these compliance “deficiencies” contributed to other violations, which ultimately resulted in overcharges and client losses of approximately $472,000, and an additional $3.1 million in revenue to the adviser.

Two coordinated and concurrent examinations conducted by SEC staff from July 2011 through March 2012 identified the following alleged violations. First, the adviser engaged in more than 1,500 principal transactions without making required written disclosures or obtaining client consent. Second, the adviser charged commissions and fees that were inconsistent with what was disclosed to its clients in violation of Section 206(2) of the Advisers Act. These commissions and fees arose from errors in processing new clients, in placing trade orders, and in failing to maintain adequate billing procedures. Third, the adviser allegedly violated the Custody rule, which provides that an adviser is subject to an annual surprise examination of client funds and securities over which it has custody. The adviser failed to identify more than 800 advisory accounts over which it had custody to the independent public accountant performing its 2010 surprise examination. The SEC also alleged failures related to recordkeeping and material inaccuracies on the adviser’s 2011 Form ADV.

In assessing the offer of settlement, the SEC considered certain remedial actions taken by the adviser, such as cooperation

====== 2-702 ======

with the SEC and reimbursement of client funds approximating $3.8 million, including interest. To settle the case, the adviser consented to a $15 million civil penalty, a cease and desist order, a censure, and various remedial actions intended to improve its compliance systems and recordkeeping. In the Matter of Barclays Capital, Inc., Investment Advisers Act Rel. No. 3929 (Sept. 23, 2014).

[28]

In September 2014, the SEC instituted a proceeding against an investment adviser and its principals for failing to disclose conflicts arising from a compensation agreement that they had with a registered broker-dealer. The agreement created incentives for the adviser to favor particular investments and to favor the broker’s platform when recommending investments to and advising clients.

The adviser and broker entered the commission agreement in 2004, under which the adviser received from the broker a percentage of every dollar that its clients invested in certain mutual funds. The agreement remained in effect until 2012. At that time, the adviser and the broker entered a new agreement that also provided for servicing fee payments from the broker to the adviser. The adviser represented in both agreements that it would consider whether additional disclosure was necessary in its Form ADV and that it had made appropriate disclosures to its clients about the arrangement. From 2005 to 2011, the adviser failed to disclose the agreements or the incentives arising from the agreement in either its Forms ADV or to its clients.

In 2011, the adviser revised its Form ADV to indicate that it “may” receive compensation from the arrangement when it was, in fact, receiving payments from the broker. In its 2013 Form ADV, the adviser disclosed the existence of the second agreement, the associated conflict of interest, and the incentive to use the broker—but not the magnitude of the conflict. The SEC deemed these disclosures inadequate.

The SEC alleges that the investment adviser and one of its principals willfully violated Sections 206(1) and 206(2) of the Advisers Act, and its other principal aided and abetted these violations. The SEC also alleges that each willfully violated Section 207. In the Matter of the Robare Group, Ltd., Investment Advisers Act Rel. No. 3907 (Sept. 2, 2014).

====== 2-703 ======

On June 4, 2015, an administrative law judge issued an Initial Decision dismissing the proceedings against the Robare Group, finding that the SEC failed to carry its burden of establishing scienter, even at the lesser level of negligence required by Section 206(2) of the Adviser’s Act. Among other things, the judge found that the adviser had relied in good faith on the advice of compliance consultants in making the disclosure at issue. In the Matter of the Robare Group, Ltd., Admin. Proc. File No. 3-16047, Initial Decision Rel. No. 806 (June 4, 2015).

The Commission then denied the Respondent’s motion for summary affirmance and granted review on the grounds that the case presents “potentially important matters of public interest.” The Division had argued that the administrative law judge’s decision “shifts the burden of fully disclosing a conflict of interest from an investment adviser, who has a fiduciary duty…to a compliance consultant (who has no such connection).” In the Matter of Robare Group, Ltd., Investment Advisers Act Rel. No. 4168 (August 12, 2015).

On November 7, 2016, the Commission issued an opinion finding that the Respondent’s negligently failed to “fully and fairly disclose conflicts of interest to their clients,” imposed a cease-and-desist order on Respondents, and ordered Respondents to pay a civil penalty of $50,000 each. In the Matter of the Robare Group, LTD., Mark L. Robare, and Jack L. Jones, Jr., Investment Advisers Act Rel. No. 4566 (Nov. 7, 2016).

[29]

In In the Matter of Clean Energy Capital, LLC, Investment Advisers Act Rel. No. 3955 (Oct. 17, 2014), the SEC filed its first action arising from a focus on fees and expenses against an investment adviser and its co-founder.

The SEC alleged that the adviser committed several violations based on negligent behavior. First, the adviser and its co-founder allegedly misallocated certain expenses, including the co-founder’s compensation, to the private equity fund it advised. This allocation—a potential conflict of interest—was not disclosed to investors or in the adviser’s Forms ADV. Second, from September 2008 to September 2012, the adviser also issued unauthorized loans to the funds it advised because those funds had run out of cash to pay expenses. The loans were collateralized by securities owned by the fund and thus presented another undisclosed conflict of interest. Third, as early as 2011, the

====== 2-704 ======

adviser and its co-founder inadequately disclosed the they had changed the way the adviser calculated distributions, to the detriment of the investors. Fourth, the adviser induced a fund investor to invest $100,000 on the premise that both co-founders were each investing $100,000 as well. In reality, the co-founders invested only $25,000 each. Fifth, the adviser negligently omitted a co-founder’s 2002 SEC violations from offering documents for certain funds between 2008 and 2010.

The SEC also alleged compliance failures and violations of the Custody Rule. Between 2010 and 2013, the adviser allegedly failed to have a qualified custodian, failed to obtain a surprise exam, and commingled its assets with those of its clients.

In October 2014, the adviser settled with the SEC and agreed to a cease and desist order, a censure, disgorgement of $1,918,157 and prejudgment interest of $51,436.95, a civil penalty of $225,000, and certain remedial undertakings such as the hiring of an independent consultant to review its compliance and financial policies.

[30]

The SEC brought suit against the president of an investment adviser for violating Sections 17(a)(1) and (3) of the Securities Act of 1933; Section 10(b) of the Exchange Act and Rules 10b-5(a) and (c); and Sections 206(1), 206(2), and 206(3) of the Advisers Act. The DOJ brought a parallel action that led to the president’s conviction. U.S. v. Tagliaferri, No. 1:13-cr-0115 (S.D.N.Y. Verdict July 24, 2014). The president used client funds to purchase promissory notes issued by private companies who would give the president kickbacks. He failed to disclose this to investors and misrepresented the liquidity of the investment. When clients demanded payment, he would use assets from other advisory clients. The president also used funds to purchase stock of a microcap company, and the proceeds allowed him to make payments on other notes due to clients. The adviser’s president was convicted in July and sentenced to six years in prison. In March 2016, the Commission granted a motion for summary disposition and barred Tagliaferri from the industry. In the Matter of James S. Tagliaferri, Admin. Proc. File No. 3-15215, Initial Decision Rel. No. 985 (Mar. 23, 2016).

[31]

In In the Matter of Consulting Services Group, LLC, the adviser failed to disclose in its Form ADV a $50,000 personal loan between the chief executive officer and a third-party investment

====== 2-705 ======

adviser. CSG was an investment adviser that provided consulting services, including recommendations of third-party investment advisers to public pension accounts. CSG failed to disclose the conflict of interest created by the loan. In the Matter of Consulting Services Group, LLC, Investment Advisers Act Rel. No. 4000 (Ja. 16, 2015).

[32]

In In the Matter of Water Island Capital LLC, the SEC alleged that the fund violated Section 12(b) and Rule 12b-1(h) because the fund failed to maintain a list of approved executing brokers. The fund generally failed to implement the policies and procedures concerning Rule 12b-1(h). Related to directed brokerage and payment to certain broker-dealers, the fund also failed to maintain proper custody of fund assets. Broker-dealer counterparties held significant assets as collateral relating to various swaps in contravention of Section 17(f)(5). In the Matter of Water Island Capital LLC, Investment Co. Act Rel. No. 31455 (Feb. 12, 2015).

[33]

In In the Matter of Joseph Stillwell and Stillwell Value LLC, the SEC alleged that the adviser and principal failed to adequately disclose conflicts presented by inter-fund loans made between private funds managed by the adviser and principal. All of the loans were repaid, but the adviser and principal did not disclose any arrangements to investors. In the Matter of Joseph Stillwell and Stillwell Value LLC, Investment Co. Act Rel. No. 31504 (Mar. 16, 2015).

[34]

In In the Matter of Alpha Titans, LLC, Timothy P. McCormack, and Kelly D. Kaerser, Esq., the adviser was accused of using fund assets to pay for adviser-related expenses not clearly authorized by fund operating documents and not accurately reflected in financial statements as related party transactions. Because the financial statements did not include certain related party relationships and material transactions, the SEC alleges that the statements were not prepared in accordance with GAAP. The fund and the general counsel were each included for causing the violations. In the Matter of Alpha Titans, LLC, Timothy P. McCormack, and Kelly D. Kaerser, Esq., Securities Exchange Act Rel. No. 74828, Investment Advisers Act Rel. No. 4073, Investment Co. Act Rel. No. 31586 (Apr. 29, 2015).

[35]

In June 2015, the SEC charged a Massachusetts-based investment advisory firm and its owner with fraud, alleging that the

====== 2-706 ======

firm had funneled more than $17 million in client assets into four troubled penny stock companies in which the owner had undisclosed business and financial interests. SEC v. Interinvest Corp. Inc. et al., 15-CV-12350 (D. Mass. June 16, 2015), Lit. Rel. No. 23288. Interinvest’s owner had served on the board of director of these companies and was compensated about $2 million for his services. Clients may have lost as much as $12 million in the investments. The SEC’s complaint seeks to permanently enjoin Interinvest and its owner from violating the securities laws, as well as to require repayment of all ill-gotten gains with interest and penalties. The court granted a preliminary injunction to freeze the firm’s assets and prohibit the firm from exercising investment authority over client assets. See Lit. Rel. No. 23294.

[36]

Two J.P. Morgan subsidiaries settled charges that the entities preferred to invest clients in their own proprietary products without properly disclosing the conflict of interest. The two subsidiaries agreed to pay $267 million and admit wrongdoing in the settlement. Between the two subsidiaries there were several ways in which J.P. was provided with economic incentive to invest certain client assets in proprietary funds, i.e., discounted pricing. J.P. also failed to disclose to clients the availability of certain other less expensive share classes. For certain hedge funds, J.P. failed to disclose that a third-party manager shared certain fees with J.P. as well. Through these activities J.P. violated its fiduciary duty to its clients. These conflicts of interest were also inadequately discussed in Forms ADV. Further, the adviser failed to implement written policies and procedures reasonably designed to prevent the above violations. In the Matter of JPMorgan Chase Bank, N.A. and J.P. Morgan Securities LLC, Securities Act Rel. No. 9992, Securities Exchange Act Rel. No. 76694, Investment Advisers Act Rel. No. 4295 (Dec. 18, 2015).

[37]

Four affiliated private equity fund advisers settled charges that, without adequate disclosure to investors, the advisers accelerated monitoring fee payments from portfolio companies when they found out that the portfolio companies were being sold or were preparing to issue an IPO. As the recipient of the fees, the advisers could not consent to the acceleration of fees for investors because of their conflict of interest. In addition, the

====== 2-707 ======

Commission found that one of the advisers’ loan agreements led to materially misleading statements in the fund’s financial statements. The adviser had also failed to supervise a senior partner who charged personal items to the funds and portfolio companies. In the Matter of Apollo Management V, L.P., Apollo Management VI, L.P., Apollo Management VII, L.P., and Apollo Commodities Management, L.P., Investment Advisers Act Rel. No. 4493 (Aug. 23, 2016).

[38]

In In the Matter of WL Ross & Co. LLC, Investment Advisers Act Rel. No. 4494 (Aug. 24, 2016), the Commission found that a private equity fund adviser’s fee allocation practices resulted in the adviser’s funds overpaying the adviser for management fees. The limited partnership agreements that governed the fund’s relationship with the adviser disclosed that a percentage of the transaction fees paid by the fund would offset the fund’s management fees. The agreement did not disclose how the transaction fees would offset the management fees when multiple of the adviser’s funds and investors were invested in the same portfolio company. Without disclosing the methodology used to allocate fees, the adviser allocated the transaction fees based on the investors relative ownership percentages of each portfolio company, instead of on a pro rata basis across the funds, which resulted in higher fees paid to the adviser. The adviser voluntarily reimbursed approximately $11.8 million in management fees and interest, and paid a fine of $2.3 million.

[39]

In In the Matter of First Reserve Management, L.P., Investment Advisers Act Rel. No. 4529 (Sept. 14, 2016), the Commission found that a private equity adviser allocated certain expenses to its funds without making certain disclosures or receiving effective consent. The fees tended to relate to expenses of the adviser. The adviser also negotiated a discount from a law firm for itself, but the discount did not apply to the funds.

[40]

An adviser and certain of its principals loaned $62 million to its private equity funds’ portfolio companies to provide interim financing and working capital. Through these transactions the adviser and its principals gained senior interests to the positions held by the funds. These transactions were not disclosed to advisory boards for the funds. In the Matter of JH Partners, LLC, Investment Advisers Act Release No. 4276 (Nov. 23, 2015).

 

====== 2-708 ======

[M] Deceptive Marketing Materials

[1]

In In the Matter of National Investment Advisors, Inc. and Douglas A. Jimerson, Investment Advisers Act Rel. No. 2689 (Dec. 27, 2007), an investment adviser allegedly marketed advisory products that guaranteed clients against loss of principal if the adviser managed their assets for a continuous five year period. The insurer covering the adviser’s guaranteed principal accounts, however, had ceased to underwrite the guarantee program and the adviser’s only insurance coverage was an errors and omissions policy. At the same time, the investment adviser allegedly retained the portion of the advisory fee allocable to prepayment of the insurance program, without disclosure to its clients. The SEC charged that the adviser’s conduct violated Sections 206(4) and Rule 206(4)-1(a)(5) under the Investment Advisers Act (deceptive marketing materials), Section 206(1) and 206(2) of the Investment Advisers Act, and the antifraud provisions of the Exchange Act.

[2]

In In the Matter of Pax World Mgmt. Corp., Investment Advisers Act Rel. No. 2761 (July 30, 2008), the SEC asserted that an investment adviser allegedly failed to comply with “socially responsible investing” (“SRI”) restrictions. Pax World Management Corp. (“Pax”) allegedly marketed mutual funds that integrated social values into their investment decisions, employing a social research department to screen and monitor fund investments to assure that they did not include companies that derived revenue from the manufacture of weapons-related products, alcohol, tobacco, military activities or gambling. The SEC alleged that the adviser purchased securities that failed the social research department’s screen and had purchased securities that had not been screened pursuant to socially responsible investing restrictions, resulting in at least ten fund portfolio holdings that were prohibited by the Funds’ SRI restrictions. As a result of its failure to adhere to its SRI-related policies and procedures, the SEC asserted that Pax violated Sections 206(2) of the Advisers Act, and Sections 13(a)(3) and 34(b) if the Investment Company Act. Without admitting or denying the SEC’s allegations, Pax consented to a cease and desist order, censure, and a monetary penalty of $500,000.

[3]

In In the Matter of Equity Services, Investment Advisers Act Rel. No. 2964 (Dec. 16, 2009), the SEC charged an investment

====== 2-709 ======

adviser and broker-dealer with violations of Section 203(e) of the Investment Advisers Act, and Section 15(b)(4) of the Exchange Act in connection with alleged misrepresentations in client solicitations regarding the monitoring of client portfolios. In 2003, and again in 2005, OCIE staff concluded that the adviser failed to monitor client asset allocations despite its representations that it would do so. Without admitting or denying the allegations, the adviser and its Senior Vice President responsible for performing the asset allocation monitoring agreed to (1) remediation, in the form of hiring additional staff as well as reimbursing clients for losses; (2) a censure; (3) penalties; and (4) a cease and desist order from further violations of the Investment Advisers Act. See In the Matter of Stephen A. Englese, Investment Advisers Act Rel. No. 2963 (Dec. 16, 2009).

[4]

In In the Matter of Navigator Money Management, Inc., Investment Advisers Act Rel. No. 3767 (Jan. 30, 2014), the SEC charged an investment adviser, and its President and Chief Compliance Officer, for (1) making false and misleading statements in the adviser’s advertising, widely disseminated newsletters, social media, and other communications; and (2) failing to adopt and implement written policies and procedures reasonably designed to prevent the alleged violations of the Advisers Act and Investment Company Act.

The SEC notified the adviser as early as 2008 during an examination that the newsletters could be considered advertisements under Rules 206(4)-1 and 482 of the Advisers Act, which prohibit false or misleading advertising by advisers and provide guidelines for ads containing performance data. The adviser nevertheless made false and misleading statements in those newsletters that concerned its investment advice, and selectively highlighted only the successful performance of a mutual fund managed by the adviser and the performance of model portfolios recommended by the President and Chief Compliance Officer. The President and Chief Compliance Officer also touted the performance of another model portfolio on the adviser’s Twitter account in 2011, even though the adviser allegedly had no involvement in the performance of that model for almost 3 years.

The adviser and its President and Chief Compliance Officer settled with the SEC and agreed to a $100,000 civil penalty, a

====== 2-710 ======

censure, a cease and desist order, and various undertakings to reform and verify their compliance with securities regulations.

[5]

One of the SEC’s early financial crisis cases related to the Primary Fund, a money market fund that “broke the buck” after Lehman, Inc. filed for bankruptcy on September 15, 2008. At the time of the bankruptcy filing, the Primary Fund held $785 million in Lehman commercial paper. Shareholders besieged the Fund, seeking to redeem their shares. Before the markets opened on the date of the bankruptcy filing, the Fund had received $5 billion in redemption requests. By noon, the Fund’s custody bank had processed $10 billion in redemptions and stopped funding redemption requests.

During the initial hours after Lehman filed for bankruptcy, the adviser to the Primary Fund prepared a marketing piece expressing its intention to support the net asset value (NAV) of the Fund, but ultimately could not support the NAV in light of the massive redemptions. By the time the adviser concluded it could not support the NAV, it already had distributed 200 copies of the marketing piece to investors. – the money market fund that held over 1% of its assets in Lehman securities and “broke the buck” when Lehman filed for bankruptcy. The SEC charged the management company and two of its principals with fraud, alleging that they failed to provide material information to the fund’s board, investors and others in the days following Lehman’s bankruptcy. The SEC alleged that the Reserve principals misrepresented that the firm would provide credit support necessary to maintain the fund’s $1.00 NAV understated the amount of redemption requests and did not provide the board with accurate information concerning the value of the fund’s Lehman holdings.

After a trial in the fall of 2012, the jury found in favor of the management company and its principals on almost all of the SEC’s claims. The jury found that the SEC had not proven that the defendants violated (i) Section 10(b) of the Exchange Act or Rule 10b-5 thereunder; (ii) Section 17(a)(2) or (3) of the Securities Act (except for a negligence violation by one of the principals); (iii) Section 206(1) or 206(2) of the Advisers Act (except for a negligence violation of Section 206(2) by the management company); or (iv) Section 206(4) of, or Rule 206(4)-8 under, the Advisers Act (except for an intentional violation by the management company). In addition, the jury found that the

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principals had not aided and abetted the management company’s violations of Section 206(2) or 206(4) or Rule 206(4)-8. SEC v. Reserve Mgmt. Company, Inc., 09-CV-4346 (S.D.N.Y. May 5, 2009). The jury concluded that the President of the Fund, however, had acted negligently.

[6]

In December 2014, the SEC brought suit against an investment adviser and its CEO, alleging that the adviser passed off the historical, back-tested performance of its investments strategy as actual investor gains. In the Matter of F-Squared Investments, Inc., Investment Advisers Act Rel. No. 3988 (Dec. 22, 2014). The adviser’s marketing materials presented strikingly strong fund performance going back as far as April 2001 and stated that the results “were not back-tested in any manner.” In reality, the strategy was not even launched until February 2009. The adviser further agreed that it had calculated the historical results using a formula which artificially inflated performance. Though the firm’s head was alerted to this error in calculation early in the marketing campaign, he did not act to correct it. The SEC asserted violations of Sections 204, 206(1), 206(2), 206(4) and 207 of the Investment Advisers Act as well as Rules 204-(2)(a)(16), 206(4)-1(a)(5), 206(4)-7 and 206(4)-8. The firm consented to a $30 disgorgement and $5 million penalty as well as to engage an independent compliance consultant. The adviser admitted wrongdoing.

The SEC followed this enforcement with another in November 2015, when an investment adviser to whom F-Squared acted as subadviser settled claims that it had improperly marketed the same problematic strategy to its clients. In the Matter of Virtus Investment Advisers, Inc., Investment Advisers Act Rel. 4266 (Nov. 16, 2015). Virtus agreed to a censure along with disgorgement of $13.4 million and prejudgment interest of $1.1 million.

[7]

In In the Matter of Kohlberg Kravis Roberts & Co. L.P., the private equity firm was accused of misallocating broken deal expenses. Starting in 2006 and continuing until late 2011, KKR incurred $338 million in diligence expenses related to unsuccessful deals. KKR allocated all broken deal expenses to certain funds, but did not have co-investors to such funds share in the broken deal expenses. KKR did not expressly disclose in the fund’s partnership agreement or any related offering materials that broken deal expenses would not be allocated to co-investors, in

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addition to the funds. Since KKR did not include such language in its materials it breached its fiduciary duty. KKR also did not adopt appropriate policies and procedures for its fund expense allocation practices until 2011, after an OCIE inspection. In the Matter of Kohlberg Kravis Roberts & Co. L.P., Investment Advisers Act Rel. No 4131 (June 29, 2015).

[8]

In In the Matter of Dion Money Management, LLC, the adviser failed to disclose to clients the terms of compensation arrangements through which the adviser received payments from third parties that were based on client assets invested in particular funds. The adviser disclosed the arrangement in filings with the SEC, but not to its clients. As a result, the adviser understated the maximum payment rate under its arrangements and did not disclose that it could be paid multiple times from multiple parties on the same client assets. In the Matter of Dion Money Management, LLC, Investment Advisers Act Rel. No. 4146 (July 24, 2015).

[9]

Another private equity adviser misallocated adviser expenses among funds. For nearly four years a pair of investment advisers incurred expenses in the course of registering under the Advisers Act and maintaining compliance. The advisers had disclosed in the funds’ limited partnership agreements that the funds would be charged for expenses that arose out of the operation and activities of the funds, including legal and consulting expenses, as determined to be appropriate in the good faith judgment of the general partner. There was no disclose that such expenses would include the advisers’ legal and compliance expenses. Accordingly, the advisers were deemed to have breached their fiduciary duty. The advisers also failed to conduct an annual review of their compliance policies. In the Matter of Cherokee Investment Partners, LLC and Cherokee Advisers, LLC, Investment Advisers Act Rel. No. 4258 (Nov. 5, 2015)

[10]

In In the Matter of Steven Zoernack and EquityStar Capital Management, LLC., Securities Act Rel No. 10051, Securities Exchange Act Rel No. 77318, Investment Advisers Act Rel. No. 4349, Investment Co. Act Rel. No. 32024 (Mar. 8, 2016), the Commission charged an investment adviser with providing false and misleading information to Morningstar in an attempt to gain a five-star rating. The adviser provided data showing that its assets were 40 times greater than they were, and that that

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the fund had existed for years longer than it had. In addition, the Commission charged that the adviser distributed false and misleading marketing materials that did not disclose that the results shown were hypothetical, rather than based on actual fund performance. The adviser also hired a firm to distribute false and misleading information about the manager’s qualifications and to manipulate search results for the manager, while concealing that the manager had two felony fraud convictions, had filed for bankruptcy, and had other judgments against him.

[N] Short Sales

Rule 105 of Regulation M, “Short Selling in Connection with a Public Offering,” prohibits covering a short sale position with securities obtained in a public offering if the short sale occurred within the Rule 105 Restricted Period, which is the shorter of (1) five business days before the pricing and ending with the pricing; or (2) the period between the filing of a registration statement and the pricing. 17 C.F.R. § 242.105(a)(1).

[1]

In In the Matter of Amaranth Advisors, Investment Advisers Act Rel. No. 2601 (May 9, 2007), an unregistered hedge fund adviser allegedly purchased shares in public offerings and used the shares to cover short positions within the Rule 105 restricted periods, in violation of Rule 105 of Regulation M. Without admitting or denying the allegations, the adviser consented to a cease and desist order, censure, disgorgement of approximately $600,000 and a $150,000 civil penalty. Similarly, in In the Matter of DKR Oasis Mgmt. Company, L.P., Investment Advisers Act Rel. No. 2744 (June 12, 2008), an unregistered hedge fund adviser allegedly violated Rule 105 of Regulation M by using shares purchased in a follow-on offering to cover a short position created two days prior, within the Rule 105 restricted period. Without admitting or denying the SEC’s allegations, the adviser consented to a cease and desist order, censure, disgorgement of the $185,000 in profits in made from the short sale plus pre-judgment interest, and a civil penalty of $60,000.

[2]

In In the Matter of Sandell Asset Mgmt. Corp., Investment Advisers Act Rel. No. 2670 (Oct. 10, 2007), an investment adviser allegedly hedged exposure from a swap position through short sales. When the adviser was unable to locate shares to effectuate the short sale, it marked the short trade ticket as “long.” It

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subsequently purchased shares in the open market at lower prices to cover the positions, generating proceeds that the firm used to offset its losses on its swap position, in violation of the then-valid “tick test” rule which provided that short sales may be effected only on a plus tick (i.e., at a price above the price at which the immediately preceding last sale was effected) or a zero-plus tick (i.e., at a price equal to the last sale if the last preceding transaction at a different price was at a lower price). The SEC alleged that the conduct violated Section 10(a) and the Exchange Act and Exchange Act Rule 10a-1 of the Exchange Act, and Section 17(a)(2) of the Exchange Act (offer or sale of securities by means of an untrue statement of material fact).

[3]

In SEC v. Lyon, No. 06 Civ. 14338 (SHS), 2008 U.S. Dist. LEXIS 9 (S.D.N.Y. Jan. 2, 2008), the district court dismissed a claim that a hedge fund adviser violated Section 5 of the Securities Act by allegedly short selling an issuer’s publicly traded securities during a period in which the adviser’s shares in unregistered Private Investments in Public Equities (“PIPEs”) could not be transferred. The court found that “a short sale of a security constitutes a sale of that security. How an investor subsequently chooses to satisfy the corresponding deficit in his trading account does not alter the nature of that sale.” The court concluded that buyers on the other side of the hedge fund’s short sale had the information required by the Securities Act with respect to the publicly traded securities. Construing a short-sale as a sale of the security eventually used to cover the short position would not further the purposes of Section 5.

[4]

The SEC’s theory that delivering previously restricted PIPE shares to close a short position transforms the short sale into a sale of unregistered securities has been rejected by other U.S. district courts. SeeSEC v. Berlacher, CA No. 07-CV-3800 (E.D. Pa. Jan. 23, 2008); SEC v. Mangan, 3:06-CV-531 (W.D.N.C. Oct. 25, 2007).

[5]

In another action involving PIPEs, SEC v. The NIR Group, LLC, 11-CV-4723 (E.D.N.Y. Sep. 28, 2011), the SEC charged an investment adviser with defrauding investors by repeatedly lying to them about the firm’s investments and trading strategy, e.g., about the liquidity of certain PIPE investments, to conceal the fact that these investments were failing during the financial

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crisis. In addition, the adviser misused investor money by writing checks to pay for personal services and luxury items.

[6]

In In the Matter of AGB Partners LLC, Gregory A. Bied, and Andrew J. Goldberger, Investment Advisers Act Rel. No. 2977 (Jan. 26, 2010), the SEC charged an investment adviser with a violation of Regulation M where the short sales occurred in one account and purchases were made in a secondary offering by a different account. Although there is an exception in amended Rule 105 for trades that occur in different accounts, the SEC found that these transactions were not within the exception because of the close collaboration by the principals in the management of the two accounts. The firms and principals settled the charges, consenting to censure, disgorgement, and civil penalties.

[7]

The SEC announced an Order finding that in June 2008 and November 2008, Forrest Fontana, the sole owner of Fontana Capital, LLC, the investment adviser to as many as five hedge funds, willfully violated Rule 105 of Regulation M by participating in public offerings XL Group PLC (“XL Group”), Merrill Lynch and Company (“Merrill Lynch”) and Wells Fargo and Company (“Wells Fargo”) after having shorted each of these securities during the five business days prior to the pricing of the offerings, in violation of Rule 105 of Regulation M. By doing so, Fontana Capital obtained profits of $816,184. Fontana Capital was ordered to cease and desist from future violations of the Rule, and respondents were censured and ordered to pay disgorgement of $816,184 plus interest and a penalty of $165,000. In the Matter of Fontana Capital, LLC and Forrest Fontana, Investment Advisers Act Rel. No. 3233 (July 8, 2011).

[8]

Similar settled enforcement actions related to Regulation M include In the Matter of Harvest Capital Strategies LLC, Exchange Act Rel. No. 76144 (Oct. 14, 2015). In re Palmyra Capital Advisors LLC, Investment Advisers Act Rel. No. 2976 (Jan. 26, 2010), In re Carlson Capital, L.P., Investment Advisers Rel. No. 3086 (Sept. 23, 2010), and In the Matter of New Castle Funds LLC, Investment Advisers Act Rel. No. 3114, (Nov. 22, 2010).

 

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[O] Code of Ethics

Investment Advisers Act Rule 204A-1 requires all investment advisers registered or required to be registered under section 203 of the Act to adopt a Code of Ethics to establish a standard of business conduct required of supervised persons and reflecting the adviser’s fiduciary obligations and those of its supervised persons. The Rule further requires that supervised persons execute a written acknowledgement of receipt of the firm’s Code of Ethics, and that the adviser retain the acknowledgements in accordance with the books and records requirements of Rule 204-2.

In In the Matter of Consulting Services Group and Joe D. Meals, Investment Advisers Act Rel. No. 2669 (Oct. 4, 2007), the compliance officer for an investment adviser allegedly prepared written acknowledgements for supervised persons and instructed them to backdate the acknowledgement forms to a period before they had received the firm’s Code of Ethics. The SEC charged the investment adviser with willful violations of Section 204 and Rule 204-1 of the Investment Advisers Act, failure to adopt a timely Code of Ethics in accordance with Rule 204A-1, and failure to maintain accurate written acknowledgements by all supervised persons of their receipt of a Code of Ethics compliant with Rule 204A-1. Additionally, the investment adviser allegedly purchased a pre-packaged policies and procedures manual from a compliance-outsourcing firm. The manual was designed for investment advisers offering discretionary money management services to clients and not for advisers that served institutional or pension clients. Because they were not tailored to the investment adviser’s business, and did not address, for example, the conflict of interest between the investment adviser and its wholly owned broker-dealer, the SEC alleged that they were not “reasonably designed to prevent violations” of the Advisers Act. The adviser consented to a censure, cease and desist order and a civil penalty in the amount of $20,000. The compliance officer also consented to a bar from association with a broker, dealer or adviser in any compliance capacity.

[P] Adviser and Fund Registration

In general, prior to the Dodd-Frank Act amendments to the Investment Advisers Act, effective in July 2011, investment advisers with at least $30 million of assets under management were required to register with the SEC, subject to certain exemptions, including an

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exemption for private advisers. Advisers with less than $25 million of assets were subject to state regulation and were prohibited from registering with the SEC unless they qualify for an exemption from the prohibition. Advisers with assets between $25 million and $30 million could elect to register with either the SEC or the states.

Under the Investment Advisers Act, as amended by the Dodd-Frank Act and regulations adopted thereunder, the registration framework is more complicated. Generally speaking, advisers with less than $25 million of assets remain subject to state regulation and prohibited from registering with the SEC unless they qualify for an exemption from the prohibition. Advisers with less than $100 million of assets, subject to state registration and examination, are prohibited from registering with the SEC unless they qualify for an exemption from the prohibition. Advisers with at least $100 million are required to register with the SEC, subject to exemptions as amended by the Dodd-Frank Act. The Dodd-Frank Act eliminated the private adviser registration exemption, but created new exemptions, including exemptions for venture capital fund advisers and for private fund advisers with less than $150 million of assets under management.

[1]

In In the Matter of David Henry Disraeli and Lifespan Assocs., Admin. Proc. File No. 3-12288, Initial Decision Rel. No. 328 (Mar. 5, 2007), an ALJ found that an adviser with less than $25 million in assets was not eligible to register with the SEC as an investment adviser and that it had made material misrepresentations and omissions on its registration application. The principal for the adviser had registered with the SEC as an investment adviser between 1993 and 1997. After the enactment of NSMIA, the adviser voluntarily withdrew its registration because it had less than $25 million of assets under management. In 2003, the principal was advised that the Texas State Securities Board planned to oppose his application to register as an advisory representative of a state registered investment adviser based upon his disciplinary history. Therefore, the principal incorporated a successor to his previous advisory business and filed a Form ADV to register the new adviser with the SEC. The principal offered shares of the new adviser to the public.

In the new adviser’s registration application, the principal indicated that it was a newly formed adviser relying on Rule 203A-2(d) because he expected the adviser would have $25 million under management and therefore would be eligible for SEC

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registration within 120 days. At the time of the application, the adviser had 25 accounts and $4 million in assets under management. The ALJ found that the adviser violated Sections 203A and 207 of the Investment Advisers Act because the principal filed a false Form ADV, did not have a “reasonable expectation” that it would meet the requirements of Rule 203A-2(d)(1) within 120 days, and because the adviser was precluded from registering with the SEC because it had less than $25 million assets under management. The ALJ further found that the principal formed the adviser and registered it with the SEC so that he could continue to do business as an investment adviser without approval from the Texas State Securities Board. The ALJ determined to revoke the principal’s investment adviser registration, bar him from association with a broker, dealer or investment adviser, order the principal and the adviser to cease and desist from future violations, disgorgement of all offering proceeds, and imposed a civil penalty of $120,000.

[2]

In In the Matter of Warwick Capital Mgmt., Inc. and Carl Lawrence, Investment Advisers Act Rel. No. 2694 (Jan. 16, 2008), the SEC issued an opinion affirming the Division of Enforcement’s allegations that an adviser and its president reported false information about the investment adviser’s assets under management and inflated performance results provided to database services that published the information. The SEC found that the adviser’s overstatement of assets on its ADV permitted it to retain it registration while maintaining less than $25 million of assets under management, in contravention of Section 203A of the Advisers Act. The misstatement of assets on the Form ADV also violated Section 207 of the Advisers Act, which makes it unlawful for any person to willfully make an untrue statement of material fact or to omit to state a material fact required to be stated in applications or reports to the SEC. The deliberate inflation of performance figures to database services additionally misrepresented a material fact to current and prospective investors, thereby violating Sections 206(1), 206(2) and 206(4) of the Advisers Act. The SEC issued cease and desist orders and barred the adviser’s president from any future association with any investment adviser.

[3]

In SEC v. UBS AG, 09-CV-00316 (JR) (D.D.C. Sept. 23, 2010), UBS AG was charged with violating Section 15(a) of the

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Exchange Act and Section 203(a) of the Investment Advisers Act in connection with the provision of services to U.S. clients which assisted the clients’ maintenance of undisclosed offshore accounts and avoiding taxes. The bank employed offshore client advisers in this role who were not associated with a registered investment adviser in the U.S. The SEC alleged that the bank was aware of its registration violations and concealed the conduct. UBS agreed to disgorge $200 million and consented to an injunction against future violations. UBS also entered into a deferred prosecution agreement, agreeing to pay $180 million in disgorgement and $400 million in tax-related payments.

[4]

In a rare and possibly unprecedented enforcement action, the SEC revoked the registration of a Georgia-based investment adviser and transfer agent with no clients, revenue or assets under management in In the Matter of Freedomtree Mutual Funds and Asset Mgmt., LLC, Investment Advisers Act Rel. No. 3202 (May 13, 2011). The SEC found that the adviser made false statements to the SEC regarding the amount of assets under management. Between August 2008 and November 2009, the adviser claimed to have $7 million, $25 million, and eventually $235 million in assets under management. In reality, the adviser had no advisory clients, revenues or assets that would require or permit registration with the SEC. In addition, despite indicating on its initial Form ADV that it was a newly formed adviser, the adviser represented on its website that it had “27+ years of unparalleled leadership” in the industry. After the adviser and transfer agent failed to appear at routine examinations and other scheduled meetings with the SEC, the owner eventually admitted that the adviser had no advisory clients or revenue. The SEC found that the conduct violated various fraud and recordkeeping provisions of the Advisers Act, as well as Section 17(b)(1) and 17A(d)(1) of the Securities Exchange Act and Rule 17Ad-6 thereunder. In a default judgment against the respondents, due to a failure to answer or otherwise defend the proceeding, the SEC revoked the registration of the adviser and the transfer agent, and ordered each to pay a civil penalty of $325,000.

[5]

See also In the Matter of Anthony Fields, supra (registrant falsely indicated on its Form ADV that it had $400 million under management) and In the Matter of Delta Global Advisers

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and Charles P. Hanlon, Investment Advisers Act Rel. No. 3282, Investment Co. Act Rel. No. 29795, (Sept. 20, 2011) (registrant misrepresented in its Form ADV that it was eligible for SEC registration on the basis that it served as an investment adviser to a registered investment company).

[6]

In In the Matter of Sands Brothers Asset Mgmt., LLC, Investment Advisers Act Rel. No. 3099 (Oct. 22, 2010), an adviser and its principals settled claims that inaccurate and outdated Form ADV disclosure violated Sections 204 and 207 of the Advisers Act and Rule 204-1 under the Act, in addition to claims that they failed to comply with numerous recordkeeping provisions and that they failed to comply with the custody rules. Among other inaccuracies, the Form ADV indicated that the adviser did not have custody of client assets. Also the adviser failed to file an annual update for its Form ADV. Although the adviser sought to take advantage of the exception in the custody rule that does not require quarterly client account statements if fund investors receive audited financial statements, the fund financial statements had a disclaimer of auditor’s opinion, rather than the required opinion. The adviser agreed to an undertaking to engage an independent compliance consultant and to pay a $60,000 penalty, and all the respondents agreed to a cease and desist order and censure.

In October 2014, the SEC again instituted proceedings against the investment adviser and its principals for failing to comply with both the Custody rule and with the SEC’s 2010 order. The adviser, in the years that followed, did not submit to a surprise examination, did not distribute its audited financials within the 120-day window, and took no remedial action to implement policies or procedures designed to ensure compliance with the custody rule. The SEC alleged, in particular, that the Chief Compliance Officer did not effectively oversee compliance with the Custody rule and made no attempts to notify the SEC of any difficulties that the adviser was encountering in meeting its deadlines. In the Matter of Sands Brothers Asset Management, LLC, Investment Advisers Act Rel. No. 3960 (Oct. 29, 2014).

In November 2015, the adviser settled with the SEC, agreeing to pay a $1 million penalty and consenting to a yearlong suspension from raising money from new or existing investors. The adviser also agreed to engage an independent monitoring

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firm for a period of three years. In the Matter of Sands Brothers Asset Management, LLC, Investment Advisers Act Rel. No. 4273 (Nov. 19, 2015).

[7]

In SEC v. Cowgill, Case No. 2:14 CV 396 (S.D. Ohio Filed May 5, 2014), the SEC continued its enforcement of the Custody rule by bringing suit against an investment adviser and its Chief Compliance Officer. The Custody rule requires advisers who are in custody of client funds implement controls to protect the assets from misappropriation, loss, or the adviser’s insolvency. A qualified custodian should maintain the assets and the adviser should give notice to the clients regarding how the funds are held. The Custody rule also requires a surprise accounting inspection once a year and the filing of Form ADV. From 2010 to 2013, the adviser did not file any such forms with the SEC. When confronted by the SEC in September 2013, the Chief Compliance Officer dismissed the failing as an administrative error and stated that the investment adviser was withdrawing from the SEC to register with the State of Ohio. The adviser never registered with Ohio, yet continued to have custody of client funds. A November 2013 exam by the SEC found that client balances were consistently overstated for one fund. The Chief Compliance Officer allegedly altered the accounts, provided the staff with false reports and took additional steps to conceal the shortfall in the funds.

In June 2014, a consent judgment was entered against the Chief Compliance Officer permanently restraining him from violating Section 10(b) of the Exchange Act and Section 203(a), 204(a), 206(1), (2), and (4) and 207 of the Advisers Act and Rules 204-2, 206(4)-2, and 206(4)-7 thereunder. He was also ordered to pay disgorgement and a civil penalty to be determined by the court upon motion of the SEC.

[8]

The SEC has also pursued registration claims against unregistered investment companies.

[a]

In In the Matter of Ryan Douglas Smith, Investment Co. Act Rel. No. 28841 (Aug. 3, 2009), the SEC initiated an administrative proceeding against the President of a closed-end investment company for violations of Section 3(a)(1) of the Investment Company Act. Although the President held the fund out as a registered investment company, the President never filed for registration of the fund as an

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investment company. Without admitting or denying the allegations, the adviser’s President agreed to a cease and desist order from further violations of Section 7(a) and a bar from serving as or affiliating with an investment adviser (with the right to re-apply after five years).

[b]

On August 31, 2011, an initial decision was reached in In re Daxor Corp., Investment Co. Act Rel. No. 29417, Admin. Proc. File No. 3-14055, Initial Decision Rel. No. 428 (Aug. 31, 2011), finding that Daxor, a public company which holds itself out as a medical device manufacturing company with additional biotechnology services, was an investment company as defined in Section 3(a)(1)(C) of the Investment Company Act, as the SEC had alleged. The ALJ noted that “Daxor’s history demonstrates a persistent, though commercially unsuccessful, attempt at selling its BVA-100.” Notwithstanding these sales and marketing efforts, and the construction of its manufacturing facility in Oak Ridge, Tennessee, the ALJ placed principal emphasis on the sources of the Company’s income and the composition of its assets, and found that Daxor met the quantitative and qualitative standards for being an investment company because it engages in the business of investing and trading in securities and 40% or more of its total assets (other than government securities and cash items) consist of investment securities, and it is an unregistered investment company in violation of Section 7(a).

[c]

The SEC announced an order finding that Banco Espirito Santo S.A. (“BES”) offered its approximately 3,800 U.S.-resident customers brokerage services and investment advice between 2004 and 2009. BES was not registered with the Commission as a broker-dealer or investment adviser, and it offered and sold securities to its U.S. customers and clients who were primarily Portuguese immigrants, without the intermediation of a registered broker-dealer despite having a U.S.-based wholly-owned subsidiary that has been registered as a broker-dealer since at least 2004 and is a member of FINRA. In addition, none of the securities BES sold to U.S. residents was registered as required by the federal securities laws. BES was found to have willfully violated Sections 5(a) and 5(c) of the Securities

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Act, Section 15(a) of the Securities Exchange Act, and Section 203(a) of the Investment Advisers Act, and ordered to cease and desist from committing or causing any violations or any future violations of these provisions and pay a total of nearly $7 million. BES agreed to make all of its U.S. customers and clients whole for any realized or unrealized investment losses plus interest. In the Matter of Banco Espirito Santo S.A., Investment Advisers Act Rel. No. 3304 (Oct. 24, 2011). On the same day, the NYAG announced an agreement to settle an investigation of BES for its solicitation and sale of securities to BES’s U.S. customers without registering itself or any of its affiliates as a securities broker-dealers or investment advisers, or any of their employees as salesmen, as required under New York’s Martin Act. Under the agreement, BES will cease and desist from any further violations of the Martin Act and Executive Law § 63(12), offer to make its customers whole for all securities it unlawfully sold them, disgorge all profits derived from its unlawful conduct, and pay $975,000 to the State of New York in penalties, fees and costs. See NYAG Press Release, available at http://www.ag.ny.gov/media_center/2011/oct/oct24a_11.html.

[d]

In February 21, 2014, the SEC settled an enforcement action against a Swiss-based investment adviser that had allegedly engaged in providing unregistered broker-dealer and investment advisory services to U.S. clients. In the Matter of Credit Suisse Group AG, Investment Advisers Act Rel. No. 3782 (Feb. 21, 2014). Notably, in its settlement the SEC required that the adviser admit wrongdoing consistent with the SEC policy announced in 2013.

The SEC alleged that the adviser, through the actions of certain of its relationship managers, provided cross-border securities services to thousands of U.S. clients from 2002 through 2008. As a result, the adviser collected fees approximating $82 million. The adviser’s services, which included soliciting accounts and providing investment advice, required registration. Throughout this period, the adviser was aware of the SEC registration requirements and instituted policies and procedures designed to prevent violations of federal securities regulations. Those policies

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and procedures ultimately failed because they were not effectively implemented.

In 2008, the adviser began exiting the U.S. cross-border securities business after a “much-publicized civil and criminal tax investigation” of another Swiss-based adviser. It also took additional measures to ensure that it was not violating federal securities laws, such as internal audits in 2001, 2003, 2006, and 2009. In the 2006 audit, certain travel reports suggested that relationship managers provided investment advice to clients while on trips to the United States. Those findings were excluded from the final audit report following meetings between the internal auditors and a department head. During this time, the adviser did not register nor did it stop collecting fees. The adviser had transferred or terminated most of its relationships with U.S. clients by 2010, but continued to collect some fees through at least June 2013.

The adviser resolved the proceedings by agreeing to a censure, a cease and desist order, disgorgement of $82,170, 990 plus prejudgment interest of $62,340,024, and a civil penalty of $50,000,000. The adviser, in the settlement offer, also admitted the facts in the SEC order and acknowledged that its conduct violated the federal securities laws.

[9]

The Commission brought its first enforcement action against a private equity adviser for failing to register as a broker-dealer in order to receive portfolio company transaction fees. In In the Matter of Blackstreet Capital Management, LLC. And Murry N. Gunty, Securities Exchange Act Rel. No. 77959, Investment Advisers Act Rel. No. 4411 (June 1, 2016), the Commission found that a private equity fund advisory firm and its owner performed its own brokerage services, including acquiring and disposing portfolio companies, instead of engaging an investment bank or broker-dealer to perform brokerage services. The advisory firm failed to properly register as a broker-dealer. In addition, the Commission found that the advisory firm failed to properly disclose fees and expenses, and engaged in conflicted transactions. The advisory firm was censured, and the firm and its owner agreed to pay $2.339 million in disgorgement, $283,737 in interest, as well as a $500,000 penalty.

 

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[Q] Broker Interpositioning

[1]

In In the Matter of Kelmoore Investment Company, Inc., Investment Advisers Act Rel. No. 2581 (Jan. 18, 2007), the SEC alleged that an investment adviser understated the total fees it charged for managing mutual funds because it did not disclose that its advisory fee of 1% of assets under management did not include the brokerage commissions that the dually registered adviser/broker-dealer charged. The provision of brokerage charges, the SEC alleged, in the context of providing advice to mutual funds, would be deemed advisory services. The SEC alleged that adviser’s disclosures were misleading and had the effect of obscuring the full cost of the investment advisory services. On the basis of these deficiencies, the adviser was found to have willfully violated Section 17(a)(3) of the Securities Act (transaction, practice or course of business which operates or would operate as a fraud or deceit upon shareholders), Section 34(b) of the Investment Company Act (untrue statements of material fact in a prospectus) and ordered to pay a $100,000 civil penalty, engage a consultant to review its advisory fees and commissions and the relevant rules and regulations governing fees and commissions, submit a copy of the consultant’s report to the SEC, mail a copy of the Order to each of the fund shareholders; and post a link to the Order on the adviser’s website for one year.

[2]

In In the Matter of Value Line, Inc., Investment Advisers Act Rel. No. 2945 (Nov. 4, 2009), the SEC charged an investment adviser, its broker-dealer, its President and its Chief Compliance Officer with violations of Section 17(a) of the Securities Act, Section 10(b) and Rule 10b-5 of the Exchange Act, Sections 206(1) and (2), and 207 of the Investment Advisers Act, and Sections 15(c), 17(e)(1), and 34(b) of the Investment Company Act in connection with the use of an interpositioned broker-dealer for mutual fund trades. The SEC alleged that the adviser arranged for unaffiliated brokers to execute, clear, and settle trades for funds at discounted commission rates but nonetheless charged the funds undiscounted rates. The unaffiliated brokers were allegedly instructed to charge the fund $0.488 per share and rebate $0.288 to $0.0388 per share to the affiliated broker-dealer. The SEC further alleged that the adviser failed to disclose the commission recapture program to shareholders or the funds’ board. Without admitting or denying the allegations,

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the adviser consented to the issuance of an administrative order, censure, a cease and desist order, and $24,168,979 in disgorgement, $9,536,786 in interest, and a $10 million penalty. The officers agreed to a penalty of $1 million and $250,000 and were permanently barred from further association with any broker, dealer, investment adviser, or investment company.

[3]

See also In the Matter of Portfolio Advisory Services, LLC, and Cedd L. Moses, Investment Advisers Act Rel. No. 2038 (June 20, 2002) (adviser interposed broker-dealer between clients and market maker to compensate broker-dealer for referrals to adviser).

[R] Section 13 Filings

[1]

In In the Matter of Quattro Global Capital, LLC, Investment Advisers Act Rel. No. 2634 (Aug. 15, 2007), a registered investment adviser to hedge funds allegedly failed to file Form 13(F) for covered securities. The SEC charged the adviser with a violation of Section 13(F) of the Exchange Act and the adviser consented to the entry of a censure, cease and desist order and paid a $100,000 civil penalty.

[2]

In In the Matter of Perry Corp., Investment Advisers Act Rel. No. 2907 (July 21, 2009), the SEC alleged that an investment adviser violated Section 13(d) and Rule 13d-1 of the Exchange Act by failing to file disclosure statements within 10 days of acquiring beneficial ownership of Mylan Laboratories Inc. The SEC alleged that the adviser purchased voting shares of Mylan through swap transactions in order to vote them in favor of a contemplated merger between Mylan and King Pharmaceuticals and increase the risk-arbitrage spread for a merger arbitrage

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position it had taken in the companies. After acquiring a 5% stake in the company, the adviser allegedly did not file Schedule 13D until two months after the stock purchase. The SEC rejected the adviser’s argument that the filing of Schedule 13D was excused for securities purchased in the “ordinary course of business” because the exception is limited to securities acquired as passive investments or for ordinary market making purposes, and not for the purpose of influencing issuer management or direction or affecting the outcome of a transaction. Without admitting or denying the allegations, the adviser agreed to cease and desist from further violations of Section 13(d) and Rule 13d-1 of the Exchange Act, a censure, and a monetary fine of $150,000.

[S] Portfolio Pumping

The SEC has also brought enforcement actions against “portfolio pumping” – manipulation of the price of portfolio holdings near reporting periods in order to boost fund performance.

[1]

In In the Matter of MedCap Mgmt. & Research LLC and Charles Frederick Toney, Jr., Investment Advisers Act Rel. No. 2802 (Oct. 16, 2008), Charles Toney, who through the registered investment adviser, MedCap Management & Research LLC (“MMR”) managed the hedge fund, MedCap Partners, L.P. (“MedCap”), allegedly violated various anti-fraud provisions under the securities laws by engaging in “portfolio pumping” to inflate the fund’s reported value. The SEC alleged that Toney drove up the price of a thinly-traded over the counter Bulletin Board stock in which MedCap was heavily invested by placing large orders for the stock through a separate, off-shore fund he managed. The SEC asserted that MMR’s conduct violated Sections 206(1) and 206(2) of the Advisers Act, as the adviser allegedly breached its fiduciary duties both to MedCap, which paid higher management fees due to the inflated quarter-end asset value, and to the off-shore fund used to purchase the OTC stock, which paid artificially inflated share prices. The SEC additionally alleged that Toney, who handled all of MMR’s investment decisions, aided and abetted MMR’s violations. Without admitting or denying the allegations, MMR and Toney consented to cease and desist orders, the censure of MMR, a bar order prohibiting Toney’s association with any investment adviser, approximately $70,000 in disgorgement and interest, and a civil monetary

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penalty of $100,000. See alsoSEC v. Lauer, No. 03-80612-Civ., 2008 U.S. Dist. LEXIS 73026 (S.D. Fla. Sept. 24, 2008).

[2]

The SEC charged two securities professionals, a hedge fund trader, and two firms involved in a scheme that manipulated several U.S. microcap stocks and generated more than $63 million in illicit proceeds through stock sales, commissions and sales credits. SEC v. Todd M. Ficeto, CV-11-1637 GHK (Rzx) (C.D. Cal. Feb. 24, 2011). They allegedly engaged in “portfolio pumping” by taking microcap companies public through reverse mergers, and manipulating the stock prices upward before selling shares at magnified prices, one of the co-conspirators succeeded in overstating his hedge funds’ performance by at least $440 million. They concealed their communications in order to place matched orders, orders that set the closing price for the day, and conducting wash sales. One of the professionals, a compliance officer, agreed to a $20,000 penalty and a one-year suspension from being a supervisor with a broker or dealer.

[T] Civil Penalties

[1]

Monetary Penalties for Aiding and Abetting Liability Under Advisers Act 209(e)

In May 2008, in a case of first impression, a federal district court held that the SEC lacked authority to seek monetary penalties against secondary violators of the Advisers Act. In SEC v. Bolla, 519 F. Supp. 2d 76 (D.D.C., May 6, 2008), the U.S. District Court for the District of Columbia held that Section 209(e) of the Advisers Act, as then in effect, did not grant the SEC the authority to seek, or the Court jurisdiction to impose, monetary penalties for aiding and abetting violations of the Advisers Act. The Court had previously determined that the defendant, an executive of an investment adviser, had aided and abetted the adviser’s violation of Sections 203(f), 206(1) and 206(2) of the Advisers Act.

The Dodd-Frank Act effectively reversed this result. See discussion under Statutory Basis of SEC Enforcement Proceedings against Investment Advisers.

[2]

Application of the “Discovery Rule” to SEC’s Claims for Civil Penalties

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In Gabelli v. SEC, 133 S. Ct. 1216 (2013), the United States Supreme Court ruled that the statute of limitations barring the Securities and Exchange Commission (“SEC”) from seeking civil penalties more than five years from the date a claim accrued begins to run when the fraud occurs and is not subject to the discovery rule. The SEC’s action related to allegations of market timing that had concluded in 2002. In 2008, however, the SEC sought civil penalties for market timing, arguing that the “discovery rule” applied to extend the statute of limitations. The Supreme Court rejected the SEC’s argument, holding that a claim accrues when the fraud occurs and that the discovery rule does not apply to delay accrual. The Court noted that using the date the fraudulent conduct occurred as the accrual date is the most natural reading of the statute because it advances “the basic policies of all limitations provisions.”

The Court rejected the SEC’s attempt to apply the discovery rule to the five-year statute of limitations. First, the Court explained that there was no precedent for such an action because it had never applied the discovery rule to delay accrual of the statute of limitations in a Government enforcement action for civil penalties. Unlike a private party who is not in a constant state of investigation or continuously searching for evidence of fraudulent activity, the SEC’s central mission is to “investigat[e] potential violations of the federal securities laws” and it is well equipped with the legal tools to assist in its mission. For this reason, the SEC does not resemble the “defrauded victim” the discovery rule is designed to protect. Applying the discovery rule, however, would leave defendants exposed to liability for an uncertain amount of time. Furthermore, determining when the statute of limitations accrued under the discovery rule (e.g., when the Government knew or should have known of a claim) would be difficult to ascertain in the context of federal agencies because of their size, multiple offices, levels of leadership, and overlapping responsibilities.

[3]

Application of Civil Monetary Penalty Provisions of Section 20(d) of the Securities Act and Section 209(e) of the Investment Advisers Act

In SEC v. Reserve Mgmt. Co., Inc., Case No. 09 Civ. 4346 (PGG) (S.D.N.Y. Sept. 30, 2013), the district court denied the SEC’s application for substantial penalties against the adviser

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and a fund officer of the Primary Fund, a money market fund that “broke the buck” after Lehman, Inc. filed for bankruptcy on September 15, 2008. At the time of the bankruptcy filing, the Primary Fund held $785 million in Lehman commercial paper. Shareholders besieged the Fund, seeking to redeem their shares. Before the markets opened on the date of the bankruptcy filing, the Fund had received $5 billion in redemption requests. By noon, the Fund’s custody bank had processed $10 billion in redemptions and stopped funding redemption requests.

During the initial hours after Lehman filed for bankruptcy, the adviser to the Primary Fund prepared a marketing piece expressing its intention to support the net asset value (NAV) of the Fund, but ultimately could not support the NAV in light of the massive redemptions. By the time the adviser concluded it could not support the NAV, it already had distributed 200 copies of the marketing piece to investors.

Against the adviser, the SEC sought a $130 million penalty, which represented $650,000 penalty for each of 200 copies of the marketing piece that had been distributed to investors. The court denied the SEC’s motion, noting that “third tier penalties” require proof of substantial losses or significant risk of substantial losses to other persons. The SEC could not meet this standard because there was no connection between the false marketing piece and investor losses, which the court observed were the result of the Lehman bankruptcy and not a “false message of support.” The court opted to award a “second tier penalty” for a single act, stating: “These entities were in business for decades and committed few regulatory violations. Their wrongful conduct took place over a period of less than 36 hours and during a time of enormous economic stress. Indeed, these defendants confronted conditions not seen since the Great Depression. The markets were in chaos and the ramifications of Lehman’s bankruptcy were not initially well understood, even by sophisticated fund managers and Government regulators. Finally, these entities are now defunct.”

The district court also rejected the SEC’s request for first tier penalties – totaling $1.3 million – against the Fund’s president. The court noted that the jury had rejected every charge of scienter against the officer and found him liable on only a single violation based on negligent conduct. In light of the circumstances, the court imposed a civil monetary penalty of $100,000.

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The court further denied the SEC’s request for an injunction against all of the defendants from committing future violations of the statutes that the jury found the defendants had violated. The court concluded that a permanent injunction was not warranted. The corporate entities and the adviser were defunct and not reasonably likely to commit future violations. The corporate entities had operated for several decades without significant regulatory sanction, rendering the events surrounding the collapse of the Primary Fund “isolated occurrence[s].” With respect to the Fund officer, the court concluded that he had engaged in negligent conduct for a short period of 36 hours and had no track record of misconduct. For these reasons, the court concluded that no injunctive relief was appropriate with respect to that officer.

[U] The 2008 Collapse of the Auction Rate Market

Auction rate securities (“ARS”) are long-term bonds or preferred shares whose rates reset periodically through an auction process. The instruments derived their liquidity from market demand. Typically, in auctions where there was insufficient demand, the broker-dealer who underwrote or marketed the instrument would submit support bids to assure the auction’s clearance. However, in late 2007 through early 2008, growing investor liquidity concerns and struggles at monoline insurers (who insured the credit quality of bonds backing ARS), diminished demand for the instruments, forcing auction dealer firms, the balance sheets for which were already under stress due to the mounting credit crisis, to submit more support bids and take more ARS into inventory than they could sustain. In February 2008, firms ceased supporting auctions, triggering widespread auction failure and effectively freezing the auction rate market.

The SEC, FINRA and state regulators extensively investigated the broker-dealer activities concerning ARS. They have brought numerous actions, generally alleging broker-dealer misrepresentations in connection with ARS sales and marketing. In particular, regulators have alleged that firms were aware of increased liquidity risks associated with ARS shortly before the market collapsed, but continued to market the instruments as safe, liquid cash and money market alternative investments. Numerous auction dealers settled with regulators, generally consenting to permanent injunctions and undertakings that included, among other things, the purchase of ARS at par from retail customers. See SEC Finalizes ARS Settlements with Citigroup

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and UBS, Providing Nearly $30 Billion in Liquidity to Investors, Rel. No. 2008-290 (Dec. 11, 2008); Bank of America Agrees in Principle to ARS Settlement, Rel. No. 2008-247 (Oct. 8, 2008); Press Release, Attorney General Cuomo Announces Settlements With Bank of America and Royal Bank of Canada to Recover Billions for Investors in Auction-Rate Securities (Oct. 8, 2008) and Attorney General Cuomo Announces Auction Rate Securities Settlement with Oppenheimer & Co. Inc. (Feb. 24, 2010); Press Release, FINRA Announces Agreements in Principle with Five Firms to Settle Auction Rate Securities Violations (Sept. 18, 2008).

Although the enforcement settlements did not generally require any undertakings with respect to ARS issuers, dealers and the SEC Division of Investment Management encouraged closed-end funds that issued ARS to redeem or restructure those issues to restore liquidity. See Linda Chatman Thomsen, Testimony Concerning the SEC’s Recent Actions With Respect to Auction Rate Securities, before the Committee on Financial Services, U.S. House of Representatives (Sept. 18, 2008).

[1]

In 2009, the SEC filed an action against Morgan Keegan alleging misrepresentations concerning the liquidity of auction rate securities (“ARS”). Morgan Keegan contested the SEC’s case and on June 28, 2011, prevailed when the Northern District Court in Georgia granted Morgan Keegan’s motion for summary judgment and dismissed the SEC’s action, finding that the SEC failed to produce sufficient evidence that the defendant had a policy of misstating the risks of ARS. SeeSEC v. Morgan Keegan & Co., Inc., 806 F. Supp. 2d 1253 (N.D. Ga. 2011). The SEC had alleged that brokers advised customers that ARS were safe, highly liquid securities akin to money market funds even as the market for ARS was collapsing. In support of its allegations, the SEC presented testimony from four customers who stated that brokers told them the ARS were safe. The district court granted Morgan Keegan’s motion for summary judgment. The district court analyzed Morgan Keegan’s distribution of its written disclosures about liquidity risk and concluded they were adequately distributed. Id. at 1260-62. As to materiality, the district court noted that the moral misrepresentations were not immaterial because proper written disclosures existed, but the “oral statements of four brokers out of hundreds would not lead a rational jury to believe that Morgan Keegan, as a whole,

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misrepresented the risks of ARS investments to its customers.” Id. As 1265.

On appeal, the United States Court of Appeals for the Eleventh Circuit vacated and remanded. SEC v. Morgan Keegan & Co., Inc., 678 F.3d 1233 (11th Cir. 2012). The court concluded that brokers’ representations must be assessed in the “total mix” of information available to reasonable investors. A review of Morgan Keegan’s oral and written disclosures, the court concluded, was an issuer for the trier of fact. The court stated: “The way information is disclosed can be as important as its content. Thus, in evaluating the effect of Morgan Keegan’s written disclosures, we must consider not only the content of the written disclosures but also the way in which the disclosures were made. After record review, we conclude that, even if a brokerage company’s written disclosures might render its individual brokers’ oral misstatements immaterial in some cases, Morgan Keegan’s manner of distribution of its written disclosures in this particular case was insufficient to warrant summary judgment for Morgan Keegan.”

[2]

Also in 2011, the SEC settled an action against Raymond James & Associates and Raymond James Financial Services for allegedly misstating the liquidity of ARS and failing to adequately disclosure the risks of ARS and their dependence on auctions for liquidity. In the Matter of Raymond James & Assoc., Inc., Securities Act Rel. No. 9228, Investment Advisers Act Rel. No. 3227 (June 29, 2011). Among other things, representatives did not provide customers with adequate and complete disclosures regarding the complexity and risks of ARS, including their dependence on successful auctions for liquidity. Raymond James agreed to a settlement that allows its customers the opportunity to sell back to the firm any ARS that they bought prior to the collapse of the ARS market in February 2008.

[3]

State regulators separately have pursued ARS issuers and dealers. In 2009, NYAG Cuomo sued Charles Schwab & Co., Inc. for alleged violations of Executive Law Section 63(12) of the Martin Act, and General Business Law Section 349, accusing the company of falsely describing ARS as liquid investments without disclosing the risks. On October 31, 2011, the New York Supreme Court granted Schwab’s motion to dismiss, finding that the complaint is “devoid of any allegation of

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misrepresentations made that were untrue when made.” SeeThe People of the State of New York v. Charles Schwab & Co., Inc., No. 453388/09 (N. Y. Co. Sup. Ct. Aug. 17, 2009, amended Oct. 31, 2011).

See also Assurance of Discontinuance, In the Matter of TD Ameritrade, Inc. (N.Y. Co. Sup. Ct. July 20, 2009) (alleging violations of the Martin Act, Section 349 of the General Business Law, and Section 63(12) of the Executive Law); The People of the State of California v. Wells Fargo Investments, LLC, Case No. CGC 09-487641 (S.F. Co. Super. Ct., Apr. 23, 2009) (alleging violations of Sections 25401 and 25216 of the California Corporations Code).

[V] Rumor-Mongering

In SEC v. Berliner, CA 08-CV-3859 (S.D.N.Y. Apr. 24, 2008), the SEC alleged that Paul Berliner disseminated a false rumor designed to depress the stock price of a publicly traded company. Berliner allegedly sent instant messages to numerous individuals, including traders at brokerage firms and hedge funds, reporting that Alliance Data Systems Corp. (“ADS”) was convening an emergency board meeting to consider a revised proposal from the Blackstone Group to acquire ADS for significantly less than the per-share priced announced in a definitive agreement entered into six months prior. The SEC asserted that as the rumor spread across Wall Street and was picked up by various news sources, the price of ADS plummeted, dropping from $77 per share to an intraday low of $63.65 – a 17% decline – and that Berliner allegedly profited from the decline by short selling ADS stock and covering those sales as the stock price fell. The SEC asserted that Berliner’s alleged manipulation of ADS stock price and related trading violated Section 17(a) of the Securities Act and Sections 9(a)(4) and 10(b) of the Exchange Act and rule 10b-5 thereunder. Without admitting or denying the SEC’s allegations, Berliner consented to a permanent injunction, disgorgement of $26,129 in trading profits and a $130,000 civil penalty. A subsequent order based on the same conduct barred Berliner from association with any broker or dealer. In the Matter of Paul S. Berliner, Securities Exchange Act Rel. No. 57774 (May 5, 2008).

 

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[W] Disclosures Regarding Selection Criteria for Advisers

[1]

In In the Matter of Morgan Stanley & Co., Investment Advisers Act Rel. No. 2904 (July 20, 2009), the SEC alleged that Morgan Stanley breached its fiduciary duty to clients by recommending managers in a manner inconsistent with its disclosures regarding the criteria it applied in the selection and approval of money managers for participation in its managed account program, in violation of Sections 206(2), 204, and 203(e)(6) of the Investment Advisers Act and Rules 204-2(a)(7) and 204(2)(a)(10) of the Investment Advisers Act. Morgan Stanley allegedly recommended money managers who were not part of the firm’s managed account program and who had not been subject to Morgan Stanley’s due diligence process. Financial advisers allegedly received commissions for transactions with unapproved managers, which was an undisclosed conflict of interest. Without admitting or denying the allegations, Morgan Stanley agreed to a censure, a cease and desist order for further violations of Sections 204, 206(c), and Rules 204-2(a)(7) and 204-2(a)(10) of the Investment Advisers Act, and a fine of $500,000.

[2]

See also In the Matter of Hennesee Group LLC and Charles J. Gradante, Investment Advisers Act Rel. No. 2871 (Apr. 22, 2009, amended Mar. 31, 2011) (adviser’s failure to perform due diligence on hedge fund as represented to investors); In the Matter of Merrill Lynch, Pierce, Fenner & Smith, Inc., Investment Advisers Act Rel. No. 2834 (Jan. 30, 2009) (adviser’s misleading pension fund clients about adviser’s money manager identification process); and In the Matter of Jeffrey Swanson, Investment Advisers Act Rel. No. 2835 (Jan. 30, 2009) and In the Matter of Michael A. Callaway, Investment Advisers Act Rel. No. 2833 (Jan. 30, 2009) (Merrill Lynch investment advisory representatives allegedly involved in adviser’s misleading pension fund clients).

[X] Misstatements to Regulators

[1]

In In the Matter of Diane M. Keefe, Admin. Proc. File No. 3-13337, Initial Decision Rel. No. 374 (Apr. 3, 2009) the SEC filed an administrative complaint against a portfolio manager for violations of Section 34(b) of the Investment Company Act in connection with the creation of false investment committee notes. The portfolio manager allegedly fabricated notes for

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investment committee meetings that did not take place, then forwarded the notes to the investment adviser’s headquarters, in response to an OCIE examination. The SEC alleged that the fabricated notes, which purported to record three-way conversations regarding investment advice, were “untrue statements of material facts.” An ALJ found that Ms. Keefe willfully violated Section 34(b) and she was suspended from association with an investment adviser or broker-dealer for 12 months. Keefe appealed the ALJ’s decision, and on April 10, 2010, an order was issued remanding the action to an ALJ for further fact-finding and examination of witnesses. In the Matter of Diane M. Keefe, Rel. No. 61928, Investment Advisers Act Rel. No. 3016, Investment Co. Act Rel. No. 29207 (Apr. 16, 2010).

[2]

In In the Matter of Thrasher Capital Mgmt., LLC and James Perkins, Investment Advisers Act Rel. No. 3108 (Nov. 16, 2010), the SEC alleged that the Chief Executive Officer and managing member of an investment adviser failed to make available to the Commission’s staff books and records that he was required to make available under Section 204 of the Advisers Act. In fact, Respondents failed to produce for inspection any files whatsoever until the Commission’s Enforcement staff issued a subpoena for such records. In addition, the SEC alleged that the firm’s Form ADV contained untrue statements of material facts concerning its client base and the ownership of the adviser in violation of Section 207 of the Advisers Act. The Order found that the adviser willfully violated Sections 204(a) and 207 of the Advisers Act and that its Chief Executive Officer willfully aided and abetted and caused the firm’s violations of Sections 204(a) and 207 of the Advisers Act. The Order required respondents to cease and desist from committing or causing any violations or future violations of Sections 204(a) and 207 of the Advisers Act, suspended the Chief Executive Officer from association with any investment adviser for nine months and revoked the firm’s registration as an investment adviser. Respondents consented to the issuance of the order without admitting or denying any of the findings.

[3]

On June 30, 2011, the District Court for the District of Rhode Island granted the SEC’s motion for summary judgment and entered a final judgment against Locke Capital Management, Inc., an investment adviser and Leila C. Jenkins, its founder and

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sole owner who served as its President, Chief Executive Officer, and Chief Investment Officer, in SEC v. Locke Capital Mgmt., Inc. and Leila C. Jenkins, 09-CV-100-WES (D. R.I. Mar. 9, 2009). The Complaint alleged that Locke and Jenkins invented a billion-dollar client in order to gain credibility and attract legitimate investors; tried to perpetuate the scheme by lying to the SEC about the existence of the fictitious client and furnishing the staff with fake documents in 2008; and claimed that the “confidential” client accounts that she invented and managed contained more than $1 billion in assets. From 2003 to 2009, lies about the fake accounts were made in brochures, meetings, submissions to online databases that prospective clients used to select money managers, and in SEC filings. In addition, the SEC alleged Jenkins also misrepresented Locke’s performance for years and deceived clients about the makeup of the firm. See also In the Matter of Locke Capital Mgmt., Inc., Investment Advisers Act Rel. No. 3234 (July 8, 2011); In the Matter of Leila C. Jenkins, Investment Advisers Act Rel. No. 3235 (July 8, 2011) (order instituting administrative proceedings against defendant for her role in the scheme described above).

[4]

The SEC settled with an auditing and accounting firm and its founder on charges that the auditor failed to comply with auditing standards. In In the Matter of Sam Kan, CPA and Sam Kan & Co., Securities Exchange Act Rel. No. 71585 (Feb. 20, 2014), the SEC cited numerous violations of the Public Company Accounting Oversight Board (“PCAOB”) standards. According to the order, the auditor failed to comply with requirements for engagement quality reviews because the engagement quality reviewer served as the engagement partner during one of the two previous audits. The firm also failed to follow up on subsequent events by reviewing documents and interviewing relevant employees of the companies. The founder also failed to properly document the evaluation of financial statements, failed to properly supervise audits conducted by staff, and did not obtain sufficient evidence to support audit findings. In addition to these cited failings, the SEC also found that each audit report was falsified because the auditor falsely claimed the audits were conducted in accordance with PCAOB standards. The order required the firm and its founder to pay $40,000 in disgorgement and a $40,000 civil penalty. In addition, the founder was denied the privilege of practicing before the Commission and

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could be eligible for re-admittance only after three years and the hiring of an independent CPA consultant. See alsoSEC v. Hovan, CV11-4795 (N.D. Cal. Sept. 28, 2011).

[Y] Anti-Money Laundering Rules and FCPA

[1]

In In re Pinnacle Capital Markets LLC and Michael Paciorek, Lit. Rel. No. 62811 (Sept. 1, 2010), the SEC charged Pinnacle with failing to comply with an anti-money laundering rule that requires broker-dealers to identify and verify the identities of its customers and document its procedures for doing so. The SEC also charged Pinnacle’s managing director Michael A. Paciorek with causing Pinnacle’s violations. The SEC found that Pinnacle established, documented and maintained a customer identification program (“CIP”) that specified it would identify and verify the identities of all of its customers. However, during a six-year period, Pinnacle failed to follow the identification and verification procedures set forth in its CIP, leading to significant money-laundering risks. The SEC’s order found that Pinnacle willfully violated Section 17(a) of the Securities Exchange Act and Rule 17a-8 thereunder. Pinnacle and Paciorek agreed to settle the action without admitting or denying the allegations, and Pinnacle agreed to pay $25,000 in financial penalties. As part of an action taken by FINRA in February 2010, Pinnacle also agreed to certain undertakings, including extensive AML training for its employees, as well as the hiring of an independent consultant to review its anti-money laundering compliance program.

[2]

The SEC charged Garth Peterson, a former executive at Morgan Stanley’s real estate investment and fund advisory business, with violating the Foreign Corrupt Practices Act and Sections 206(1) and (2) of the Advisers Act by acquiring real estate investments for himself and a Chinese official who referred business to the Morgan Stanley funds. Peterson, among other things, made undisclosed arrangements for the funds to pay finders’ fees that were actually payments to himself and the Chinese official and to transfer a real estate interest to himself and the Chinese official. Peterson settled the SEC’s charges by paying disgorgement of over $250,000, relinquishing the real estate interest (valued at over $3 million) and agreeing to an industry bar. SEC v. Peterson, 12-CV-2033 (E.D.N.Y. Apr. 25, 2012), Lit. Rel. No. 22346.

 

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[Z] Pay-to-Play

[1]

The SEC pursued its first case under pay-to-play rules for investment advisers, which was created in 2010 by the Dodd-Frank Act. In In the Matter of TL Ventures Inc., Investment Advisers Act Rel. No. 3859 (June 20, 2014), the SEC alleged that an investment adviser violated Sections 203(a), 206(4), and 208(d) of the Advisers Act and Rule 206(4)-5. The SEC also filed an administrative action against a related investment adviser. In re Penn Mezzanine Partners Mgmt., L.P., Investment Advisers Act Rel. No. 3858 (June 20, 2014). The pay-to-play rule prevents advisers from providing paid advisory services to a government client or an investment vehicle where the government invests for two years after a covered employee makes a campaign contribution. An unregistered investment adviser would not be subject to this rule. However, the investment adviser and its related entity were under common control and operationally commingled such that they should have been analyzed for exemption together. Since the combination of both entities would have mandated registration, the investment adviser was required to abide by the pay-to-play rule. However, a covered employee of the adviser made contributions to candidates for Mayor of Philadelphia and Governor of Pennsylvania. Since these two elected positions had the ability to appoint officials to state boards that managed funds within the adviser’s control, the pay-to-play rule was violated.

The adviser, without admitting or denying the allegations, settled with the SEC and agreed to a cease and desist order, a censure, a disgorgement of $256,697, and a $35,000 civil penalty.

[2]

In SEC v. Henry Morris, David Loglisci, Nosemote LLC, Pantigo Emerging LLC and Purpose LLC, 09-CV-2518 (S.D.N.Y. Mar. 19, 2009), the SEC alleged that David Loglisci, former Deputy Comptroller and Chief Investment Officer of the New York State Common Retirement Fund, and Henry Morris, the top political advisor and chief fundraiser for former New York State Comptroller Alan Hevesi, extracted kickbacks from investment management firms seeking to manage the assets of the New York State Common Retirement Fund, resulting in violation of Sections 10(b) and 20(e), and Rule 10b-5 of the Exchange Act, as well as Section 17(a) of the Securities Act and Sections 206(1) and 206(2) of the Investment Advisers Act. In

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its complaint, the SEC alleged that Loglisci repeatedly directed investment managers to Morris or certain other individuals and signaled to the investment managers that they first needed to “hire” Morris or the other individuals as a “finders” or “placement agents.” The complaint contends that Loglisci rewarded those firms that paid the placement agent fees with lucrative contracts, while denying fund business to those who refused. The SEC further alleged that the Loglisci and Morris concealed the improper payments from the Comptroller’s investment staff and fund’s Investment Advisory Committee by funneling payments through a third party. The SEC is seeking a permanent injunction against future violations, disgorgement, interest, and civil penalties.

[3]

In April 2010, in a related matter, the SEC charged Quadrangle Group LLC and Quadrangle GP Investors II, L.P. in connection with the kickback to obtain investments from the Retirement Fund. SEC v. Quadrangle Group LLC and Quadrangle GP Investors II, L.P., No. 10-CV-3192 (S.D.N.Y Apr. 15, 2010). The SEC alleged that the Quadrangle defendants entered into undisclosed financial arrangements that benefited Morris and Loglisci in order to win investment business from the Retirement Fund, including payment of placement agent fees. The Quadrangle defendants settled the SEC’s charges without admitting or denying the allegations; they consented to the entry of a judgment that permanently enjoins them from violating Section 17(a)(2) of the Securities Act and agreed to pay a $5 million penalty.

[4]

In November 2010, in another related matter, the SEC charged former Quadrangle Group principal, Steven Rattner, with participating in the kickback scheme to obtain investments from the Retirement Fund, including payment of political contributions. Rattner settled the SEC’s charges without admitting or denying the allegations; he consented to the entry of a judgment that permanently enjoins him from violating Section 17(a)(2) of the Securities Act and agreed to pay $3.2 million in disgorgement and a $3 million penalty; and he further consented to a two-year bar from associating with any investment adviser or broker-dealer. SEC v. Steven L. Rattner, 10 CV 8699 (S.D.N.Y. Nov. 18, 2010). See also Political Contributions by Certain Investment Advisers, Investment Advisers Act Rel. No. 3043, July 1, 2010, adopting

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rules to curtail investment advisers’ making contributions or other payments to elected officials to influence contracts for the management of public pension plans.

[5]

Among the numerous actions related to this matter on the New York state side, Morris pleaded guilty to a felony violation of the Martin Act, a class E felony, and agreed to forfeit $19 million and be permanently barred from the securities industry in New York. On February 17, 2011, he was sentenced to four years in prison. See NYAG Press Release, available at http://www.ag.ny.gov/media_center/2011/feb/feb17a_11.html. NYAG Cuomo, in a November 22, 2010 press release announcing the Morris guilty plea, noted that his investigation of corruption at the Retirement Fund had led to eight guilty pleas and agreements with 16 firms (including Quadrangle, other private fund firms and a law firm) and three individuals and had produced more than $158 million in recoveries for the state. See NYAG Press Release, available at http://www.ag.ny.gov/media_center/2010/nov/nov22a_10.html.

On November 18, 2010, NYAG Cuomo filed two lawsuits related to the Retirement Fund against Rattner - one seeking forfeiture of $19 million and the other under the Martin Act and the New York Executive Law, seeking various remedies, including civil penalties and a lifetime bar from the securities industry in New York. A deal was reached on December 30, 2010, in which Rattner agreed to pay $10,000,000 in restitution to the State of New York and be banned from appearing in any capacity before any public pension fund within the State of New York for five years. The agreement ended the two lawsuits previously filed against Rattner by NYAG Cuomo relating to the pay-to-play scheme. Cuomo also secured settlements with several of the investment firms involved in the scheme in December 2010. See NY AG Press Release, available at http://www.ag.ny.gov/media_center/2010/dec/dec15a_10.html. In addition, on April 15, 2011, former New York comptroller Alan Hevesi was sentenced to four years in prison his role in the pay-to-play scheme, after pleading guilty to accepting nearly $1 million in exchange for approving $250 million in pension fund investments. See NYAG Press Release, available at http://www.ag.ny.gov/media_center/2011/apr/apr15a_11.html.

 

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[AA] Board Oversight of Funds

The SEC’s continued on focus on gatekeepers for failing to uphold their responsibilities under the securities laws has included cases against the directors of funds, which are responsible for oversight of mutual funds and include, as well, direct responsibility for valuation of portfolio securities. The gatekeeper focus has also resulted in actions against advisers, for deception of the Board in connection with the 15(c) advisory contract review.

[1]

In June 2013, the Directors of five Morgan Keegan bond funds agreed to a cease and desist order from committing or causing any violations or future violations of Rule 38a-1 of the Investment Company Act of 1940. The SEC alleged that the Directors caused the Funds’ violation of Rule 38a-1 of the Investment Company Act in connection with the adoption and implementation of written policies and procedures reasonably designed to prevent violation of the federal securities laws by the funds, including procedures providing for the oversight of compliance of the fund’s investment adviser.

In particular, the SEC alleged that the Directors did not specify a fair valuation methodology pursuant to which below-investment grade debt securities should be valued, did not continuously review how each issue of security in the funds’ portfolios were valued, and delegated their responsibilities to determine fair value to the adviser’s Valuation Committee without providing “meaningful substantive guidance on how those determinations should be made.” The SEC further alleged that the Directors did not learn how fair values were actually determined, and had received only limited information on the factors the adviser considered in making fair value determinations. The fair valued securities accounted for “upwards of 60%” of the funds’ net asset values between January 2007 and August 2007. In the Matter of J. Kenneth Alderman, et al., Investment Co. Act Rel. No. 30557 (June 13, 2013).

[2]

In In the Matter of Northern Lights Compliance Services, LLC, Investment Co. Act Rel. 30502 (May 2, 2013), the SEC brought disclosure, reporting, recordkeeping and compliance charges against the trustees, the administrator that prepared shareholder reports and drafted meeting minutes, and a compliance affiliate that provided CCO services and administered the compliance program for two open-end series trusts. The trusts included up

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to 71 series managed by different, unaffiliated advisers and sub-advisers. In the order instituting proceedings, in which the defendants neither admitted nor denied the findings, the SEC asserted that the trusts’ shareholder reports included misleading statements regarding the Board’s 15(c) evaluation process. The disclosures indicated that in evaluating Fund advisory fees, the Trustees reviewed advisory fee peer group information and other materials that were not allegedly supplied to or reviewed by the Trustees. Additionally, the disclosures implied that certain series were paying fees that were not materially higher than the Fund’s peer group when, the SEC alleged, the advisory fee was higher than all 74 funds in the peer group and nearly double the peer group’s median fee. The SEC alleged that the Board meeting minutes contained the same boilerplate language that was misleading or inaccurate in the shareholder reports. The SEC alleged that the administrator failed to ensure that certain shareholder reports contained the required disclosures concerning the Trustees’ evaluation process and failed to ensure that certain series within the Trusts maintained and preserved their Section 15(c) files in accordance with Investment Company Act recordkeeping requirements. These lapses, the SEC alleged, caused the trusts to violate Sections 30(e) and 31(a) of the Investment Company Act and Rules 30e-1 and 31a-2(a)(6) thereunder.

The consent order alleged violations of Section 34(b) of the Investment Company Act, Rule 38a-1 (for failure to implement procedures reasonably designed to assure that the Trustees could adequately assess the compliance programs of the trusts’ various investment advisers), Section 31(a) and Rule 31a-2 of the Investment Company Act against the administrator for failing to maintain records considered by the Trustees in renewing advisory contracts, and Section 30(e) of the Investment Company Act and Rule 30e-1 for failure to include required disclosures regarding the Trustee’s 15(c) deliberations in the trusts’ shareholder reports.

The order instituting cease and desist proceedings included undertakings; in particular, the retention of an independent compliance consultant to review the procedures applicable to the 15(c) and compliance program review process, disclosure and recordkeeping obligations. The trustees agreed to cease and desist from future violations of Section 34(b) of and Rule 38a-1(a)(1) under the Investment Company Act. The administrator

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and compliance affiliate agreed to pay a $50,000 penalty. See In the Matter of Northern Lights Compliance Services, LLC, Investment Co. Act Rel. 30502 (May 2, 2013), available at http://www.sec.gov/litigation/admin/2013/ic-30502.pdf.

[3]

In In the Matter of Chariot Advisors, LLC and Elliott L. Shifman, the SEC alleged that the investment adviser of an absolute return currency portfolio made misrepresentations to the fund’s board in the 15(c) process. The SEC alleged that Chariot Advisors and its control person misrepresented to the Board its ability to conduct algorithmic currency trading insofar as it had no devised or otherwise possessed any algorithms or computer models capable of engaging in the currency trading that the adviser described during the 15(c) process. The adviser further represented that it would use 20% of the fund assets to engage in algorithmic currency trading. Instead, the adviser hired an individual trader who was allowed to use discretion on trade selection and execution. The action is on-going. In the Matter of Chariot Advisors, LLC and Elliott L. Shifman, Securities Exchange Act Rel. No. 70239, Investment Advisers Act Rel. No. 3653, Investment Co. Act Rel. No. 30655 (Aug. 21, 2013).

[4]

In In the Matter of Commonwealth Capital Management, LLC, Commonwealth Shareholder Services, Inc., John Pasco, III, J. Gordon McKinley, III, Robert R. Burke, and Franklin A. Trice, III, the SEC alleged that the adviser and the funds’ board failed to satisfy duties imposed by Section 15(c). The independent directors requested reasonably necessary information from the adviser, but in some instances the responses did not provide all of the requested information and in some instances the information provided was inaccurate. The board then did not have, and did not evaluate, all the information it requested as necessary to approve the advisory contract. The parties settled the action. In the Matter of Commonwealth Capital Management, LLC, Commonwealth Shareholder Services, Inc., John Pasco, III, J. Gordon McKinley, III, Robert R. Burke, and Franklin A. Trice, III, Investment Co. Act Rel. 31678 (June 17, 2015).

[5]

In In the Matter of Kornitzer Capital Management, Inc. and Barry E. Koster, the SEC alleged that the adviser provided inaccurate and incomplete information in the 15(c) process. The board routinely requested an analysis of the adviser’s profitability in managing the funds, including an explanation of the

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adviser’s methodology for allocating expenses. The board considered such information to be reasonably necessary for the board’s evaluation of the advisory contracts. Mr. Koster, the CFO and CCO, prepared the analysis and explanation which represented that the employee compensation costs were allocated “based on estimated labor hours.” However, Mr. Koster adjusted the chief executive officer’s cost allocation to achieve consistency year over year – this method was not disclosed to the board. Therefore, the adviser failed to furnish such information as was reasonably necessary for the board to evaluate the advisory contracts. In the Matter of Kornitzer Capital Management, Inc. and Barry E. Koster, Investment Co. Act Rel. 31560 (Apr. 21, 2015).

[BB] Compliance Programs

The Enforcement Division has also brought actions relating to compliance programs and appropriate responses to examination deficiencies. See Press Release, SEC Penalizes Investment Advisers for Compliance Failures (Nov. 28, 2011), available at http://www.sec.gov/news/press/2011/2011-248.htm. The following actions are illustrative of actions involving compliance programs or involving compliance officers. The SEC announced settlements of three administrative proceedings relating to compliance program failures in November 2011.

[1]

In In the Matter of OMNI Investment Advisors Inc. and Gary R. Beynon, Investment Advisers Act Rel. No. 3323 (Nov. 28, 2011), the SEC alleged that the firm had been cited for compliance deficiencies in 2007; it lacked an effective compliance program and code of ethics from September 2008 through August 2011 when it withdrew from SEC registration; Beynon, the firm’s owner and Chief Executive Officer, became Chief Compliance Officer during this period but was out of the country and performed virtually none of his supervisory or compliance responsibilities; the firm failed to keep required books and records; and it produced inaccurate documents to the SEC. Pursuant to the settlement citing violations of Section 206(4), 204A, and 204(a) of the Advisers Act and related rules, the respondents agreed, among other things, to a censure and a cease and desist order, and Beynon agreed to a $50,000 penalty and a bar from acting in a compliance or supervisory capacity with a securities

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firm or association with an investment adviser or investment company.

[2]

In In the Matter of Asset Advisers, LLC, Investment Advisers Act Rel. No. 3324 (Nov. 28, 2011), after SEC examiners cited the firm for failure to adopt a compliance program, the adviser adopted policies and procedures and a code of ethics, but did not fully implement them. Pursuant to the settlement citing violations of Sections 206(4) and 204A of the Advisers Act and related rules, the firm agreed to a censure, a cease and desist order and a $20,000 penalty. It also agreed to an undertaking to close operations and withdraw its SEC registration.

[3]

In In the Matter of Feltl, Investment Advisers Act Rel. No. 3325 (Nov. 28, 2011), the SEC charged the adviser with failing to adopt a compliance program or a code of ethics, engaging in numerous principal transactions without required consent and improperly charging commissions in wrap fee accounts. Pursuant to the settlement citing violations of Sections 206(2), (3) and (4) and 204A of the Advisers Act and related rules, the firm agreed to a censure, a cease and desist order, disgorgement of approximately $140,000 plus interest and a $50,000 penalty. It also agreed to an undertaking to retain an independent compliance consultant and implement its recommendations (subject to certain conditions) and to post the SEC order on its website and provide a copy of the order to its clients for twelve months. See also In the Matter of Consultiva Internacional, Inc., Investment Advisers Act Rel. No. 3441 (Aug. 3, 2012).

[4]

In October 2013, the SEC announced three settlements regarding investment advisory firms for “repeatedly ignoring problems with their compliance programs.” Press Release 2013-226, SEC Sanctions Three Firms Under Compliance Program Initiative (Oct. 23, 2013), available at http://www.sec.gov/News/PressRelease/Detail/PressRelease/1370540008287#.UsmNbP3ZQ8M. The enforcement actions were developed through the SEC’s Compliance Program Initiative, which targeted firms that had received prior deficiency letters relating to compliance programs. The firms failure to address those deficiencies allegedly led to securities law violations that the “firms could have prevented.” Id.

In the action involving the Equitas entities, the SEC alleged that the adviser inadvertently over billed and under billed certain

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clients, and negligently made misleading disclosures to clients and potential clients about Equitas’ historical performance, compensation, conflicts of interest, and prior examination deficiencies. One of the Equitas advisers further failed to conduct the required annual compliance reviews, and failed to maintain written compliance policies and procedures reasonably designed to prevent violations of the Advisers Act and its rules. The SEC included individuals in the action, asserting that the chief executive officer aided, abetted, and caused the advertising violations and the firm’s chief compliance officer aided, abetted, and caused the compliance-related violations. The SEC alleged that two individuals participated in OCIE’s previous examinations, including meeting with OCIE staff, reviewed the deficiency letters sent by OCIE staff, and prepared and/or reviewed the firms’ letters in response. The settlement order includes such undertakings as the retention of a compliance consultant and the provision of the settlement order to the adviser’s clients. The adviser agreed to a civil penalty of $100,000. In the Matter of Equitas Capital Advisors, LLC, Securities Exchange Act Rel. No. 70743, Investment Advisers Act Rel. No. 3704 (Oct. 23, 2013), available at http://www.sec.gov/litigation/admin/2013/34-70743.pdf.

In the action against Modern Portfolio Management, the SEC alleged that the adviser and its principals failed to correct ongoing violations at the advisory firm. At the time of an on-site OCIE examination of the adviser in 2008, the adviser had failed to complete an annual compliance review in 2006, made misleading statements on the adviser’s website regarding the adviser’s exclusive access to Dimensional Fund Advisors funds, omitted disclosures in its performance information that were required by the adviser’s own policies and procedures, and made misleading statements in its performance information by providing model results that did not deduct advisory fees. Following the examination, OCIE staff sent the adviser a letter concerning these violations. Despite assurances that it would take corrective action to remedy these violations, the adviser had not completed an annual compliance review in 2009 and continued to make misleading statements regarding its access to DFA funds in its marketing materials. The adviser also misleadingly represented in one location on its website that it had over $600 million in assets when it reported in its Form ADV that it had

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less than $325 million in assets under management as of September 2011.

The order instituting proceedings included allegations about the experience of the individual whom the adviser had designated as its chief compliance officer. The person tasked with compliance oversight was an employee with less than three months of experience with overseeing compliance at the adviser even though that employee allegedly had no Advisers Act compliance knowledge, experience or training. In 2006, the adviser designated the employee as CCO without ensuring that the employee had adequate knowledge, training or resources to assess MPM’s compliance with the Advisers Act. In settling the action, the adviser’s undertakings included compliance training, the designation of a CCO, continued retention of a compliance consultant and the payment of a civil penalty in the amount of $75,000. In the Matter of Modern Portfolio Mgmt., Inc., Investment Advisers Act Rel. No. 3701 (Oct. 23, 2013).

[5]

The SEC brought an action against an assistant portfolio manager who engaged in active personal trading and allegedly deceived the adviser’s CCO about his transactions. His transactions (which he did not consistently pre-clear) included the purchase or sale of securities that the funds also purchased or sold. Johns allegedly concealed his trading through the submission of false reports, forged or altered documents, and also lied to the firm’s CCO. The consent order includes violations of Rule 17ji-1 (code of ethics) and Rule 38a-1(c) for misleading the CCO and tampering with files. Johns consented to a bar from the industry (with the right to apply for reentry after five years), a $100,000 fine and disgorgement of $231,00 plus interest. In the Matter of Carl D. Johns, Investment Advisers Act Rel. No. 3655, Investment Co. Act Rel. No. 30675 (Aug. 27, 2013).

[6]

The SEC instituted an administrative proceeding against an investment adviser’s compliance officer in an action related to In re Wells Fargo Advisors, LLC, Investment Advisers Act Rel. No. 3928 (Sept. 22, 2014). In re Judy K. Wolf, Investment Advisers Act Rel. No. 3947 (Oct. 15, 2014). The compliance officer allegedly altered a document that was produced during the SEC’s investigation of the adviser. By altering the document, the compliance officer was charged with willfully aiding

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and abetting the adviser’s violations. The compliance officer was solely responsible for conducting “look back” reviews; logging most reviews with “no findings.” The log produced to the SEC in the adviser’s proceeding noted that certain stock was up “15% on 9/1/12, the day prior to the announcement [of the acquisition].” The compliance officer testified that this was a typo that occurred back in September 2010. However, the document metadata indicated that the log had been altered in December 2012. The adviser later terminated the compliance officer, who later admitted to altering the log. The case is currently pending.

[7]

In In the Matter of Pekin Singer Strauss Asset Management Inc., Ronald L. Strauss, William A. Pekin, and Joshua D. Strauss, Investment Advisers Act Rel. No. 4126, Investment Co. Act Rel. No. 31688 (June 23, 2015), the adviser was charged with several compliance failures and the president was also charged for causing certain failures. The adviser failed to conduct annual compliance program reviews and failed to implement and enforce provisions of its policies and procedures and its codes of ethics properly. The Staff’s order noted that the adviser did not dedicate sufficient resources to compliance. The CCO noted the issues and requested assistance from the president. The CCO was not charged, but the president was charged for failing to support the CCO.

[8]

In In the Matter of Blackrock Advisors, LLC and Bartholomew A. Battista, the SEC alleged that an adviser failed to disclose a conflict of interest involving one of its portfolio managers to the board of a mutual fund and to advisory clients. The adviser allegedly failed to adopt and implement compliance policies and procedures reasonably designed to prevent violations of the Advisers Act concerning outside activities by employees. Blackrock only required pre-approval to serve on a board of directors and had a general conflicts of interest provision in its Code of Business Conduct and Ethics. The CCO was alleged to have caused these violations. The adviser and CCO were alleged to have also caused a failure to report the violations to registered funds’ boards of directors. In each instance the CCO knew of the violations by the portfolio manager and did nothing to report the situation or to implement appropriate policies and procedures. In the Matter of Blackrock Advisors, LLC and Bartholomew A.

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Battista, Investment Advisers Act Rel. No. 4064, Investment Co. Act Rel. No. 31558 (Apr. 20, 2015).

[9]

In the Matter of Moloney Securities Co., Inc. and Joseph R. Medley, Jr., Securities Exchange Act Rel. No. 79003, Investment Advisers Act Rel. No. 4542 (Sept. 30, 2016) involved an investment adviser repeatedly cited by the Commission for repeated violations of the Advisers Act. In 2006, the Commission issued an exam deficiency letter noting that the adviser did not have written compliance policies. In 2009, the Commission issued another deficiency letter stating that while the adviser had developed written compliance policies, the adviser failed to implement the policies relating to best execution and principal transactions. In 2012, the Commission issued another deficiency letter that identified violations similar to the violations identified by the 2009 letter, and specifically stated that the adviser engaged in principal transactions without disclosing its identity to clients in writing or obtaining their consent to each transaction. The adviser agreed to pay a civil penalty of $34,000 and to retain an independent consultant to review its compliance policies and procedures.

[10]

In In the Matter of Dupree Financial Group, LLC, Investment Advisers Act. Rel. No. 4546 (Oct. 5, 2016), the Commission found that the adviser failed to conduct annual compliance reviews over a multi-year period.

[CC] Non-Prosecution Agreements

In November 2013, the SEC announced its first deferred prosecution agreement with an individual. In connection with an investigation, the SEC announced that Scott Herckis, a fund administrator of a hedge fund, had assisted the SEC staff in its pursuit of an action against a hedge fund manager that “stole investor assets” and overstated fund performance. Herckis allegedly aided and abetted the violation. He computed the performance of the fund’s assets and facilitated transfers of fund assets to the general partner of the fund, in breach of the partnership agreement. The terms of the deferred prosecution agreement preclude Herckis from service as a fund administrator for five years and further preclude association with a registered investment adviser, broker-dealer or registered investment company. The agreement further required disgorgement of $50,000, representing Herckis’ compensation as administrator. The deferred

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prosecution agreement is available at http://www.sec.gov/news/press/2013/2013-241-dpa.pdf.

[DD] Aberrational Performance

[1]

In SEC v. Michael R. Balboa and Gilles T. De Charsonville, the SEC alleged that the portfolio manager of the Millennium Global Emerging Credit Fund and two brokers provided fraudulent quotes for illiquid securities in the fund’s portfolio to its outside auditors and its independent valuation agent in order to inflate the funds’ value by over $150 million and overstate the fund’s returns. Charges against the defendants included direct and aiding and abetting violations of Section 10(b) of, and Rule 10b-5 under, the Exchange Act and Section 206(4) of, and Rule 206(4)-8 under, the Advisers Act. The SEC seeks an injunction, disgorgement plus interest and monetary penalties. Balboa was also criminally charged. SEC v. Michael R. Balboa and Gilles T. De Charsonville, 11-CV-8731 (S.D.N.Y. Dec. 2, 2011), Lit. Rel. No. 22176.

[2]

In SEC v. Kapur, the SEC alleged that ThinkStrategy Capital Management, LLC and its sole managing director made material misrepresentations about management’s credentials, the hedge fund’s assets and its track record and due diligence procedures for a fund of funds. The defendants were charged with violations of Section 17(a) of the Securities Act, Section 10(b) of, and Rule 10b-5 under, the Exchange Act, and Section 206(4) of, and Rule 206(4)-8 under, the Advisers Act. A consent judgment was entered enjoining Kapur from violating the antifraud provisions of the federal securities laws. Kapur also agreed to an

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industry bar. SEC v. Kapur, 11-CV-8094 (S.D.N.Y. Nov. 10, 2011), Lit. Rel. No. 22151.

[3]

In SEC v. Rooney and Solaris Mgmt., LLC, the SEC brought an action against the adviser to the Solaris Opportunity Fund, LP and its portfolio manager, alleging that they represented that the fund used a diversified “non-directional” investment strategy and fraudulently misused fund assets. Instead, the fund’s entire portfolio was invested one microcap company and the portfolio manager was the Chairman of the microcap company. The complaint charged the defendants with direct and aiding and abetting violations of section 17(a) of the Securities Act, Section 10(b) of the Exchange Act, and Section 206(4) of the Advisers Act and related rules and seeks an injunction, disgorgement plus interest and civil penalties and an officer and director bar against the portfolio manager. SEC v. Rooney and Solaris Mgmt., LLC, CA No. 11-CV-08264 (N.D. Ill. Nov. 18, 2011), Lit. Rel. No. 22167 (Nov. 22, 2011).

[4]

In In the Matter of LeadDog Capital Markets, LLC, the SEC alleged that the adviser to a hedge fund and its two owners - one who had a brokerage background and the other who acted as its general counsel - made material misrepresentations and omissions relating to the fund’s liquidity, conflicts of interest, related-party transactions, management’s disciplinary history and other items. After a hearing, the ALJ determined that the defendants violated (and/or aided and abetted violations of) the anti-fraud provisions of the Securities Act and the Exchange Act and violated Section 206(4) of the Advisers Act and Rule 206(4)-8 thereunder and imposed sanctions, including cease and desist orders, disgorgement of approximately $220,000 plus interest, and a civil penalty of $130,000. The individual respondents were also subject to industry bars. In the Matter of LeadDog Capital Markets, LLC, Securities Exchange Act Rel. No. 65750 (Nov. 15, 2011), Admin. Proc. File No. 3-14623, Initial Decision Rel. No. 468 (Sep. 14, 2012).

[5]

In In re Ambassador Capital Mgmt., the SEC alleged that the adviser of a money market fund violated Sections 206(1) and (2) of the Adviser’s Act and for causing the fund to violate Investment Company Act sections 31(a), 34(b), 35(d) and Rules 22c-1, 38a-1 and 31(a)(1). The SEC identified the money market fund because its returns exceeded returns for the fund’s peer

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group. At the same time, the fund held securities issued by troubled banks. The SEC alleged that the adviser and portfolio manager violated the federal securities laws by repeatedly making false statements to the fund’s Board of Trustees regarding the level of risk in the fund’s portfolio, including statements regarding maturity restrictions, exposure to European issuers, and diversification. The securities that the fund held alleged failed to comply with Rule 2a-7 of the Investment Company Act of 1940, which limits the amount of risk of money market fund portfolios. In particular, the adviser and portfolio manager purchased securities posing more than a “minimal credit risk” under the adviser’s own guidelines, as well as securities which violated Rule 2a-7’s conditions on issuer diversification, and by failing to subject the fund’s portfolio to appropriate stress testing. As a result, the SEC alleged, the fund was not authorized to use the amortized cost method of valuing securities (under which it priced its securities at $1 a share) and hold itself out as a money market fund under the Investment Company Act. The adviser further caused the fund’s failure to implement adequate written compliance policies under Rule 38a-1 of the Investment Company Act. The adviser failed to follow Ambassador Funds’ compliance procedures regarding the minimal credit risk determination for securities purchased for the fund’s portfolio. The fund liquidated in June 2012 with no alleged losses to investors. The action is on-going. In re Ambassador Capital Mgmt., Investment Advisers Act Rel. No. 3725, Investment Co. Act Rel. No. 30809 (Nov. 26, 2013).

[EE] Ponzi Schemes

[1]

Madoff

In March 2009, Madoff pled guilty to numerous felony counts for defrauding thousands of investors of billions of dollars. Through the asset management arm of his firm, Bernard L. Madoff Investment Securities LLC (“BMIS”), Madoff executed

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the largest Ponzi scheme in history. Madoff was sentenced to 150 years in prison on June 29, 2009. See alsoSEC v. Bernard L. Madoff, Lit. Rel. No. 20889 (Feb. 9, 2009) (Madoff’s consent to partial judgment imposing permanent injunction in SEC civil action filed December 11, 2008). Among others, regulators, and lawmakers have asked how Madoff avoided detection.

On September 2, 2009, the SEC Office of Inspector General released an executive summary of its report regarding the failure of the SEC to uncover Madoff’s multi-billion dollar Ponzi scheme. The Inspector General concluded that: (1) despite six complaints between June 1992 and December 2008 the SEC failed to properly investigate Madoff; (2) had the SEC conducted an adequate investigation it would have uncovered the fraud; (3) the SEC’s most egregious error was failing to confirm Madoff’s alleged trading with third parties; (4) the SEC ignored red flags related to Madoff’s trading; and (5) the SEC’s examinations of Madoff’s firm reassured certain investors of Madoff’s legitimacy. Office of Inspector General, SEC No. OIG-509, Investigation of Failure of the SEC to Uncover Bernard Madoff’s Ponzi Scheme (2009), available at www.sec.gov/news/studies/2009/oig-509.pdf.

The SEC has continued to pursue entities that may have facilitated Madoff’s fraud. For example, in SEC v. Friehling and Friehling & Horowitz, CPA’s, 09 CV 2467 (S.D.N.Y. Mar. 18, 2009), the SEC charged auditors of BMIS with securities fraud for fraudulently reporting that they had conducted audits of Madoff’s firm when such audits never occurred. The U.S. Attorney’s Office filed criminal charges against Friehling in connection with his role in the Madoff’s scandal. SeeU.S. v. Friehling, S1 09 Cr. 700 (AKH) (S.D.N.Y. Mar. 17, 2009). Friehling pled guilty to the criminal charges in November 2009. The SEC charged two computer programmers with violations of Sections 10(b), 15(c), and 17(a) as well as Rules 10b-3, 10b-5, and 17a-3 of the Exchange Act and Sections 204, 206(1), and 206(2) for their role in assisting Madoff in covering up the Ponzi Scheme. SEC v. O’Hara and Perez, 09 CV 9425 (LLS) (S.D.N.Y. Nov. 13, 2009).

In November 2010, the SEC charged two longtime Madoff employees, both administrative assistants, with playing key roles in the Madoff fraud. See SEC v. Crupi, 10-CV-8702 (S.D.N.Y. Nov. 18, 2010), Lit. Rel. No. 21750, and SEC v. Bongiorno,

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10-CV-8101 (S.D.N.Y. Nov. 18, 2010), Lit. Rel. No. 21750. The SEC alleged, among other things, that the employees produced phony account statements for investors. In 2011, the SEC charged Eric Lipkin, another longtime employee, for helping Madoff and his firm deceive and defraud investors and regulators about a massive Ponzi scheme for over a decade. Lipkin allegedly processed payroll records for “no-show” employees, falsified records of investors’ account holdings, played a role in executing Madoff’s fictitious investment strategy, and helped prepare fake Depository Trust Clearing Corporation reports showing the sham investments for clients. Lipkin received annual bonuses from the firm and received $720,000 from Madoff to purchase a house, an amount he never paid back. SEC v. Lipkin, 11-CV-3826 (S.D.N.Y. June 6, 2011).

In 2012, Peter Madoff, Bernard Madoff’s brother and BMIS’ Chief Compliance Officer, pled guilty to criminal charges related to the fraud and the SEC charged him with numerous direct and aiding and abetting violations of the securities laws, including Sections 204, 206(1), (2) and (4) and 207 of the Advisers Act and related rules. The SEC alleges that, inter alia, Peter Madoff created a paper compliance program that was never implemented; falsified compliance documents, including annual reviews and certifications, and registration applications; and lied to regulators about the compliance program. The SEC further alleges that when Peter Madoff learned of the fraud shortly before its collapse, Peter Madoff participated in paying favored investors and withdrew BMIS funds for himself. SEC v. Peter B. Madoff, 12-CV-5100 (S.D.N.Y. June 29, 2012), Lit. Rel. No 22407. For other SEC actions involving Madoff employees, see alsoSEC v. Cotellessa-Pitz, 11-CV-9302 (S.D.N.Y. Dec. 19, 2011), Lit. Rel. No. 22202; SEC v. Kugel, 11-CV-8434 (S.D.N.Y. Nov. 21, 2012), Lit. Rel. No. 22166 (Nov. 22, 2012); and SEC v. Bonventre, 10-CV-1576 (S.D.N.Y. Feb. 25, 2010), Lit. Rel. No. 21424.

The SEC charged Cohmad Securities Corp. and certain officers and employees for marketing investment opportunities with Madoff while knowingly or recklessly disregarding the Madoff fraud. The defendants consented to partial judgments enjoining them from future securities law violations. SEC v. Cohmad Securities Corp., et al., 09-CV-5680 (S.D.N.Y. Nov. 1, 2010), Lit. Rel. No. 21718.

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In 2012, the SEC filed a civil enforcement action against an alternative asset manager who claimed to manage assets of over $1.5 billion, approximately $100 million of which belonged to U.S.-based investors. He allegedly lost millions of dollars that had been invested in Madoff’s scheme in 2008. SEC v. Battoo, Civil Action No. 1:12-cv-07125 (N.D. Ill. Sept. 6, 2012). The SEC also charged the manager’s companies and an associate acting as an unregistered investment adviser who had been previously barred from the securities industry due to SEC violations. The district court ordered an emergency asset freeze for the manager and his companies. The SEC alleged that the adviser lost an additional $100 million in 2008 when an international bank terminated the adviser’s access to its credit and platform of funds after an audit. The adviser never disclosed these losses to his investors and claimed that he had no “direct” investments in Madoff’s schemes. In January 2009, the adviser and his associate held a “due diligence conference” to assuage investor concerns. The SEC further alleged that the manager misappropriated investor funds to pay for his flamboyant lifestyle.

On September 30, 2014, the district court granted the SEC’s motion for default judgment against the manager and his companies. The court imposed permanent injunctions and ordered the manager and his companies to pay disgorgement along with prejudgment interest amounting to a total of $290,129,196.86 and a civil penalty of $68 million. The court noted that this is an appropriate penalty meant to “punish the [] Defendants, and to deter others from committing fraud on this scale.” The action against the associate is still pending.

The SEC has initiated other actions related to Battoo as well, including one against a Bahamian broker-dealer and its President that substantially assisted the afore-mentioned fraud. SEC v. Brown, Civil Action No. 1:14-cv-06130 (N.D. Ill. Filed Aug. 8, 2014). See also In the Matter of Larry C. Grossman, Investment Advisers Act Rel. No. 3720 (Nov. 20, 2013).

[2]

Fund of Fund Investors

In the aftermath of the Madoff scandal, the NYAG actively investigated parties conducting business with Madoff as well as other possible Ponzi schemes. On April 6, 2009, the NYAG filed civil fraud charges against a hedge fund manager, Merkin, and its principal, who allegedly funneled $2.4 billion to Madoff

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without informing investors that Madoff was managing their investments. The People of the State of New York v. J. Ezra Merkin (N.Y. Sup. Ct. Apr. 6, 2009). The NYAG alleged that Merkin collected $470 million in management fees while doing little more than “routine booking.” Merkin’s clients included prominent charities and non-profits. In May 2010, NYAG Cuomo also sued Ivy Asset Management, LLC and its executives for deliberately misleading clients about Madoff investments. New York v. Ivy Asset Management, LLC (N.Y. Sup. Ct. May 11, 2010) settled in 2012 for over $200 million. See Press Release (Nov. 13, 2012), available at http://www.ag.ny.gov/press-release/ag-schneiderman-obtains-210-million-settlement-ivy-asset-management-connection-madoff. See alsoThe People of the State of California v. Stanley Chais, (Sup. Ct. Co. of L.A. Sept. 17, 2009) (charging unregistered investment adviser with violation of various securities laws for misrepresenting to investors that the adviser would be managing funds, when instead money was managed by Madoff); Consent Order, In the Matter of Fairfield Greenwich Advisors LLC, No. 2009-0028 (Mass. Sec. Div. Sept. 8, 2009) (investment adviser’s settling with Massachusetts Division of Securities for recommending Madoff to investors without performing a reasonable review of Madoff’s investment performance).

[3]

In SEC v. Regan & Co., 09-CV-5799 (S.D.N.Y. June 24, 2009), the SEC brought an action for injunctive relief and damages against an investment adviser for alleged violations of Section 10(b) in connection with an alleged Ponzi scheme in which the adviser promised investors annual returns of 20% and minimal risk to capital. The adviser consented to judgment, enjoining it from further violations of the securities laws and $8,700,933.04 in disgorgement and interest. See also In the Matter of Michael C. Regan, Investment Advisers Act Rel. No. 2935 (Oct. 16, 2009) (barring principal from association with investment adviser).

[4]

In SEC v. Moises Pacheco, 09-CV-1355-W RBB (S.D. Cal., June 24, 2009), the SEC brought a civil action for an injunction and damages in connection with a Ponzi scheme in which the adviser represented that the returns of five hedge funds were generated by substantial trading profits of covered call options, when in fact, the returns were financed with investor principal. The adviser consented to judgment enjoining it from violations

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of Sections 206(1), 206(2), 206(4), and Rule 206(4)-8 of the Investment Advisers Act. See also In the Matter of Moises Pacheco, Investment Advisers Act Rel. No. 2960 (Dec. 11, 2009) (barring principal from association with investment adviser).

[5]

In 2009, the SEC charged an Illinois-based hedge fund manager, Thomas J. Petters, and his firm with running a multi-billion dollar Ponzi scheme executed through the sale of interests in three hedge funds. SEC v. Petters, Civ. No. 09 SC 1750 ADM/ JSM (D. Minn. July 10, 2009), Lit. Rel. No. 21124. The SEC also charged other hedge fund managers in connection with misrepresentations to their investors regarding investments and sham transactions with Petters. SEC v. Prevost, Lit. Rel. No. 21694 (Oct. 14, 2010). In 2011, the SEC brought additional enforcement actions relating to the Petters fraud. In the first action, the SEC charged Marlon Quan with facilitating the Petters fraud and funneling several hundred million dollars of investor money into the scheme. The SEC alleges that Quan and his firms (Stewardship Investment Advisors LLC and Acorn Capital Group LLC) invested hundreds of millions of hedge fund assets with Petters while pocketing more than $90 million in fees. They falsely assured investors that their money would be safeguarded by “lock box accounts” to protect them against defaults. When Petters was unable to make payments on investments held by the funds that Quan managed, Quan and his firms concealed Petters’s defaults from investors by concocting sham round trip transactions with Petters. SEC v. Quan, 11-CV-00723 (D. Minn., Mar. 24, 2011), Lit. Rel. No. 21906. On February 11, 2014, the jury returned a verdict for the SEC, finding Quan and his three companies liable for fraud. The district court ordered a permanent injunction against the defendants and disgorgement of over $80 million. SEC v. Quan, Lit. Rel. No. 23093 (Sept. 25, 2014).

In another action, the SEC charged two Minnesota-based hedge fund managers and their firm for facilitating the Petters Ponzi scheme. The SEC alleges that the two managers and their firm, Arrowhead Capital Management LLC, invested more than $600 million in hedge fund assets with Petters while collecting more than $42 million in fees and falsely assuring investors and potential investors that the flow of their money would be safeguarded by the operation of certain collateral accounts when

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this process did not exist. When Petters was unable to make payments on investments held by the funds they managed, the managers concealed this by entering into secret note extensions with Petters. SEC v. Fry, Palm, and Arrowhead Capital Mgmt., LLC, 11-CV-03303-RHK (D. Minn., Nov. 9, 2011), Lit. Rel. No. 22149.

[6]

On January 14, 2011, the SEC charged Francisco Illarramendi, a principal of investment adviser MK Capital Management, with misappropriating at least $53 million in investor funds and used the money for self-dealing transactions. The SEC alleges that Illarramendi defrauded investors in the several hedge funds he managed by improperly transferring their money into bank accounts that he personally controlled. He then invested the money for his own benefit or for the benefit of the entities that he controlled. The SEC subsequently amended that complaint to allege that Illarramendi and related advisers misappropriated investor assets and misused hedge funds they manage for Ponzi-like activity in which they used new investor money to pay off earlier investors. Among other things, the judge ordered that the assets of the defendants be frozen and that over $200 million held in the hedge funds’ off-shore accounts be repatriated. SEC v. Illarramendi, 3:11-CV-00078 (D. Conn. Jan. 14, 2011), Lit. Rel. Nos. 21828 (Jan. 28, 2011), 21875 (Mar. 7, 2011), 21970 (May 16, 2011) and 22015 (June 28, 2011). On March 7, 2011, Illarramendi pled guilty to several criminal counts in a parallel criminal action brought by the United States Attorney for the District of Connecticut relating to the same misconduct, as well as for obstruction of justice for deliberately misleading the SEC staff during its investigation. U.S. v. Illarramendi, Cr. No. 3:11-CR-0041-SRU (D.Conn., Mar. 7, 2011).

[7]

For other recent enforcement actions involving Ponzi-like schemes see SEC Enforcement Actions Against Ponzi Schemes, available at www.sec.gov/spotlight/enf-actions-ponzi.shtml and cases cited. See alsoSEC v. Forte, No. 09-0063, (E.D. Pa. Jan. 8, 2009), Lit. Rel. No. 20847 (filing an emergency action to halt an alleged $50-million Ponzi scheme that allegedly existed from February 1995 to present); SEC v. Oversea Chinese Fund Limited Partnership, 09-CV-00786-PAB-KMT, Lit. Rel. No. 20988 (D. Colo. Apr. 6, 2009) (halting alleged multi-million dollar Ponzi scheme and affinity fraud involving Canadian-based

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hedge fund); SEC v. Stein, Lit. Rel. No. 20983 (Apr. 1, 2009) (obtaining emergency asset freeze of Long Island-based investment adviser’s assets to halt alleged multi-million dollar Ponzi scheme); SEC v. Market Street Advisors, Shawn R. Merriman, LLC-1, LLC-2, Marque LLC-3, and LLC-4, Lit. Rel. No. 20992 (Apr. 7, 2009) (charging Colorado investment adviser and firm with administering a multi-million dollar Ponzi scheme); In the Matter of John M. Donnelly, Investment Advisers Act Rel. No. 2897 (June 29, 2009) (settled administrative proceeding in which investment adviser was permanently enjoined from future violations of antifraud laws for his role in a Ponzi scheme); SEC v. Neman and Neman Financial, Inc., CV12-03142 (C.D. Cal. Apr. 11, 2012) (emergency court order halting a Ponzi scheme by a purported hedge fund manager); SEC v. Levin and Preve, 1:12-CV-21917 (S.D. Fl. May 22, 2012) (alleging that defendants ran a Ponzi scheme involving sale of interests in a private investment fund that invested in non-existent discounted legal settlements); SEC v. GLR Capital Mgmt., LLC, Geringer, CV12-2663 (N.D. Cal. May 24, 2012) (alleging a $60 million fund claimed trading profits when it actually incurred losses and used money from new investors to pay existing investors); SEC v. Small Business Capital Corp., Feathers CV12-03237 (N.D. Cal. June 27, 2012) (emergency court order to stop a Ponzi-like scheme to defraud investors by selling securities in two mortgage investment funds); SEC v. Alleca, No. 1:12-CV-3261 (N.D. Ga. Sept. 18, 2012) (alleging adviser created new private funds to raise money to pay back investors in a private fund of funds that had incurred losses); and Lit. Rel. No. 22487 (Sept. 21, 2012) (SEC charges hedge fund manager with running $37 million Ponzi scheme); SEC v. Barry J. Graham, Press Rel. 2013-15 (January 30, 2013) (involving alleged fraud of $300 million from nearly 1,400 investors), available at www.sec.gov/News/PressRelease/Detail/PressRelease/1365171513950; SEC v. Richard Olive and Susan Olive; SEC v. We the People, Inc. of the United States; Sec v. William G. Reeves, Press Rel. 2013-10 (February 4, 2013) ((alleging fraud of 400 investors from over 30 states of $75 million), available at www.sec.gov/News/PressRelease/Detail/PressRelease/1365171512714; In the Matter of Craig Berkman, d/b/a Ventures Trust LLC, Press Rel. 2013-44 (Mar. 19, 2013) (alleging that former Oregon gubernatorial candidate defrauded investors seeking to acquire pre-IPO shares

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of Facebook and other social media companies), available at www.sec.gov/News/PressRelease/Detail/PressRelease/1365171513392.

[8]

State regulators also pursued Ponzi schemes. See, e.g., Press Release, Attorney General Files Injunction, Freezes Assets in Alleged Ponzi Scheme (Apr. 2, 2010), announcing first lawsuit under new Florida Securities and Investment Protection Act relating to Botfly investment fraud scheme; November 8, 2010 Press Release, Attorney General Warns Consumers of Ponzi Scheme Following Arrest of Botfly Principal, available at www.myfloridalegal.com; The People of the State of California v. William Arthur Sassman II, No. 09F08586, Superior Court of State of Cal., County of Sacramento, Felony Complaint (Nov. 6, 2009), in which the California Attorney General alleged that Sassman used money from new investors to repay old investors, while maintaining a “lavish lifestyle” through incoming investments, which he allegedly concealed through the use of Nevada LLCs and also invested client funds in “so-called Nigerian swindles and wild schemes.”

[FF] Fee Cases

In 2010, the SEC Enforcement Division announced the launch of a mutual fund fee initiative in its Asset Management Unit. The initiative has led to several actions regarding fee disclosures.

[1]

In the first enforcement case involving mutual fund advisory fees since the announcement, the SEC settled charges with Morgan Stanley Investment Management (“MSIM”), the primary investment adviser to Malaysia Fund, a registered mutual fund, for “wholly inadequate” monitoring of Malaysia Fund and an improper fee arrangement that allegedly charged the fund and its investors for advisory services they were not actually receiving from a third party. The SEC alleged that MSIM represented to investors and the fund’s Board of Directors that it contracted a third-party sub-adviser to provide advice, research and assistance to MSIM for the benefit of the fund. However, according to the complaint, the sub-adviser never provided these services; yet the fund’s board renewed the contract for 12 years, at a cost of $1.845 million to investors. Morgan Stanley agreed to repay the entire amount to the Malaysia Fund, plus a $1.5 million penalty to the SEC. It also agreed to cease and desist from

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committing or causing any future violations Sections 15(c) and 34(b) of the Investment Company Act and Sections 206(2) and (4) of the Investment Advisers Act and Rule 206(4)-7 thereunder. Finally, MSIM agreed to implement policies and procedures specifically governing the Section 15(c) process and its oversight of service providers. SEC v. Morgan Stanley Investment Mgmt., Investment Advisers Act Rel. No. 3315, Investment Co. Act Rel. No. 29862 (Nov. 16, 2011). See alsoSEC v. AMMB Consultant Sendirian Berhad, 1:12-CV-01052 (D.D.C., June 26, 2012), Lit. Rel. No. 22402 (June 27, 2012), for the SEC’s related action against the Malaysian sub-adviser.

[2]

In In the Matter of Northern Lights Compliance Services, LLC, Investment Co. Act Rel. 30502 (May 2, 2013), the SEC brought disclosure, reporting, recordkeeping and compliance charges against the trustees, the administrator that prepared shareholder reports and drafted meeting minutes, and a compliance affiliate that provided CCO services and administered the compliance program for two open-end series trusts. The trusts included up to 71 series managed by different, unaffiliated advisers and sub-advisers. In the order instituting proceedings, in which the defendants neither admitted nor denied the findings, the SEC asserted that the trusts’ shareholder reports included misleading statements regarding the Board’s 15(c) evaluation process. The disclosures indicated that in evaluating Fund advisory fees, the Trustees reviewed advisory fee peer group information and other materials that were not allegedly supplied to or reviewed by the Trustees. Additionally, the disclosures implied that certain series were paying fees that were not materially higher than the Fund’s peer group when, the SEC alleged, the advisory fee was higher than all 74 funds in the peer group and nearly double the peer group’s median fee. The SEC alleged that the Board meeting minutes contained the same boilerplate language that was misleading or inaccurate in the shareholder reports. The SEC alleged that the administrator failed to ensure that certain shareholder reports contained the required disclosures concerning the Trustees’ evaluation process and failed to ensure that certain series within the Trusts maintained and preserved their Section 15(c) files in accordance with Investment Company Act recordkeeping requirements. These lapses, the SEC alleged, caused the trusts to violate Sections 30(e) and 31(a) of the Investment Company Act and Rules 30e-1 and 31a-2(a)(6) thereunder.

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The consent order alleged violations of Section 34(b) of the Investment Company Act, Rule 38a-1 (for failure to implement procedures reasonably designed to assure that the Trustees could adequately assess the compliance programs of the trusts’ various investment advisers), Section 31(a) and Rule 31a-2 of the Investment Company Act against the administrator for failing to maintain records considered by the Trustees in renewing advisory contracts, and Section 30(e) of the Investment Company Act and Rule 30e-1 for failure to include required disclosures regarding the Trustee’s 15(c) deliberations in the trusts’ shareholder reports.

The order instituting cease and desist proceedings included undertakings; in particular, the retention of an independent compliance consultant to review the procedures applicable to the 15(c) and compliance program review process, disclosure and recordkeeping obligations. The trustees agreed to cease and desist from future violations of Section 34(b) of and Rule 38a-1(a)(1) under the Investment Company Act. The administrator and compliance affiliate agreed to pay a $50,000 penalty. See In the Matter of Northern Lights Compliance Services, LLC, Investment Co. Act Rel. 30502 (May 2, 2013), available at http://www.sec.gov/litigation/admin/2013/ic-30502.pdf.

[GG] Social Media

In In the Matter of Keiko Kawamura, Securities Act of 1933 Rel. No. 9622 (Aug.5, 2014), the SEC and an unregistered investment adviser entered into a consent order based on the adviser’s use of her website and social media accounts to further two fraudulent investment schemes. In the first scheme, the adviser purportedly managed a

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“hedge fund” where she would pool investor funds and take 20% of any profits gained. The adviser solicited clients touting her extensive experience managing millions of dollars. In fact, she had placed only a few trades using her boyfriend’s account of less than $10,000. She misappropriated most of the funds she received for vacations and living expenses. Using social media, the adviser posted screenshots of unusually successful trades suggesting she was making excellent returns. She also falsified tax records for the investors showing that the funds were invested when they had already been misappropriated.

The second scheme centered around the adviser’s website www.kawamurafinancial.com. She promoted the website through social media and charged between $94.95 and $174.95 for investment advice. She again inflated her status in the industry and made false claims about her returns, bragging she had an 800% YTD return when she had already lost the money. She offered access to a blocked Twitter account so paying investors could access her tips real-time. The SEC settled with the adviser and ordered her to cease and desist from violating Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5, and Sections 206(1), 206(2) and 206(4) of the Advisers Act and Rule 206(4)-8. The adviser was barred from associating with any investment organization and ordered to pay $275,117.78 in disgorgement and prejudgment interest of $14,644.41. She was also fined $50,000.

[HH] Distribution-in-Guise

In setting forth its examination priorities for 2013, the SEC announced the IA-IC Program’s focus on “distribution-in-guise.” Advisers and funds make a wide variety of payments to distributors and intermediaries, and the SEC determined to examine whether those payments comply with applicable regulations, including SEC Rule 12b-1. The rule permits a fund to pay service fees – such as revenue sharing, sub-TA, shareholder servicing and conference support – out of fund assets without any plan authorizing their payment.

Distribution fees, on the other hand, may be paid out of fund assets only if the fund has adopted a plan authorizing the payments. Distribution fees may include marketing and advertising costs. The SEC is concerned that advisers may disguise distribution fees as service fees and thereby pay them out of fund assets without the imprimatur of a 12b-1 authorizing plan.

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[1]

The first enforcement to arise out of the distribution-in-guise initiative was In the Matter of First Eagle Investment Management, LLC, Investment Advisers Act. Rel. No. 4199 (Sept. 21, 2015). The adviser, First Eagle, and its affiliated distributor allegedly used fund assets to pay almost $25 million for distribution-related services. Such payments would only have been permissible if authorized by a written Rule 12b-1 approved by the funds’ boards. Instead, the SEC alleged that the adviser treated the payments as if they were for sub-transfer agent fees which would have been permissible without a plan. The adviser allegedly reported to the funds’ boards that the distribution and marketing fees were sub-transfer agent fees. The adviser further stated in the fund prospectuses, also inaccurately, that the distributor would be bearing all distribution expenses not covered by the funds’ 12b-1 plan. The SEC order found that First Eagle had willfully violated Section 206(2) of the Investment Advisers Act and Section 34(b) of the Investment Company Act. First Eagle also caused the Funds to violate Section 12(b) of the Investment Company Act and SEC Rule 12b-1. First Eagle agreed to pay disgorgement of approximately $25 million plus prejudgment interest of $2.3 million, along with a penalty of $12.5 million. The distributor agreed to retain an independent compliance consultant.

[II] Whistleblower-Related Actions

In In the Matter of KBR, Inc., No. 3-16466 (SEC Apr. 1, 2015), available at www.sec.gov/litigation/admin/2015/34-74619.pdf, the SEC issued in a settled administrative proceeding a cease and desist order directing that the respondent cease violating Commission Rule 21F-17(a). That rule prohibits “tak[ing] any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement . . . with respect to such communications.” The rule was adopted pursuant to authority granted by the Dodd-Frank Act, which became effective in August 2011. At issue in KBR was a form confidentiality statement used by the company when conducting internal investigations of alleged misconduct reported by company employees. The confidentiality agreement had been used long before the passage of Dodd-Frank and Ruel 21F-17. The confidentiality statement required individuals interviewed during an internal investigation to agree to “protect the integrity of the

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review” and “prohibited” the employee from “discussing any particulars regarding this interview and the subject matter discussed during the interview, without the prior authorization of the Law Department.” Although the Commission was not aware of any instance in which the confidentiality statement prevented any employee from reporting a possible securities law violation to the SEC, or any instance in which KBR sought to enforce the confidentiality statement so as to prevent an employee from reporting an alleged securities law violation to the SEC, the Commission believed that the confidentiality statement alone constituted a violation of Rule 21F-17(a). The Commission concluded that the “language found in the form confidentiality statement impedes such communications by prohibiting employees from discussing the substance of their interview without clearance from KBR’s law department under penalty of disciplinary action including termination of employment.”

V. The Mutual Fund Market Timing, Late Trading and Compensation Scandals

In September 2003, NYAG Spitzer initiated an action against Canary Capital Partners, a hedge fund, for engaging in market timing and late trading of leading mutual fund families. State of New York v. Canary Capital Partners, LLC, Index No. 402830/2003 (N.Y. Co. Sup. Ct. Sept. 3, 2003). The Complaint averred that the mutual fund advisers consented to or had been complicit in the practices. The same day it filed the Canary Complaint and, simultaneously announced a settlement of the action, the NYAG issued a press release stating that he had “obtained evidence of widespread illegal trading schemes that potentially cost mutual fund shareholders billions of dollars annually.” Press Release, State Investigation Reveals Mutual Fund Fraud (Sept. 3, 2003), available at http://www.oag.state.ny.us/press/2003/sep/sep03a_03.html. The allegations triggered a spate of federal and state regulatory into the mutual fund industry, culminating in a series of state and federal enforcement actions.

[A] Late Trading

Late trading refers to the practice of placing orders to buy or redeem mutual fund shares after the mutual fund has calculated its NAV for the next day (which is typically at the close of trading at 4:00 pm Eastern Standard Time), but receiving the price based on the prior day’s NAV. Late trading enables the trader to profit from market events that occur after 4:00 pm, but that are not reflected in

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that day’s NAV. The late trader obtains an advantage at the expense of other mutual fund shareholders when he learns of market moving information and is able to purchase or redeem mutual fund shares at prices set before the information is reflected in the mutual fund share price. Investment Company Act Rule 22c-1(a) (the “forward pricing rule”) expressly prohibits late trading by requiring registered investment companies and affiliates authorized to consummate transactions on their behalf to sell and redeem mutual fund shares at a price based on the fund’s NAV “next computed after receipt of a tender of such security for redemption or of an order to purchase or sell such security.” 17 C.F.R. § 270.22c-1 (emphasis supplied).

Late traders allegedly obtained the capacity to execute mutual fund transactions from investment advisers and affiliated brokers in a number of ways, sometimes with the assistance of a mutual fund trading intermediaries. For example, mutual funds expect that large investors, like retirement plans, require several hours after the deadline to process orders submitted by plan participants, and therefore accept batch orders for processing after the deadline based on assurances that the orders were placed before the deadline. Some traders obtained late-trading capacity by persuading intermediaries to include their post-4:00 pm trades with these batched orders. Alternatively, late traders submitted “proposed” trades to fund brokers or distributors before the 4:00 pm deadline, when they would be time-stamped, and then “confirmed” the trades after the deadline had passed. Traders declined to confirm unprofitable trades, and unconfirmed trades were not cleared. Some distributors and brokers also allegedly accommodated late traders by installing electronic processing platforms that enabled traders to enter orders directly for clearing and to bypass distributor operations and compliance.

[1]

In In the Matter of Bank of America Capital Mgmt., LLC, BACAP Distributors, LLC, and Banc of America Securities, LLC, Investment Advisers Act Rel. No. 2355 (Feb. 9, 2005), the SEC maintained that Bank of America Securities, LLC (“BAS), a registered broker-dealer and investment adviser, granted certain broker-dealers and hedge fund managers direct access to an electronic system that enabled them to enter mutual fund trade orders after the 4:00 pm calculation of the next day’s NAV. Granting access to the system facilitated late trading because BAS allegedly knew or was reckless in disregarding that the entities to which it granted access were engaged in late trading. BAS personnel allegedly assisted third-party late trading

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activities by time stamping trades before the 4:00 pm close, and then selectively executing them after the price was set. Through this conduct, “BAS willfully violated Rule 22c-1(a), as adopted under Section 22(c) [the forward pricing rule] of the Investment Company Act, which requires certain mutual funds… or dealers in the funds’ securities, to sell and redeem fund shares at a price based on the current NAV next computed after receipt of an order to buy or redeem.” See also In the Matter of Bear, Stearns & Co. and Bear, Stearns Securities Corp., Investment Co. Act Rel. No. 27262 (Mar. 16, 2006).

[2]

In SEC v. Security Trust Company, N.A., Grant D. Seeger, William A. Kenyon and Nicole McDermott, U.S. District Court for the District of Arizona, CV 03-2323 PHX JWS (Nov. 24, 2003), a banking association allegedly facilitated late trading by including a hedge fund’s post-deadline trades into batch orders submitted on behalf of retirement plans and processing third party administrators. The SEC alleged that the association deliberately concealed the hedge fund’s identity and misrepresented to the mutual fund that the hedge fund was a third-party administrator.

[3]

The SEC has initiated enforcement proceedings against broker-dealers or registered representatives who executed late trades in violation of Rule 22c-1 under the Investment Company Act. In In the Matter of Lawrence S. Powell and Delano N. Sta.Ana, Investment Advisers Act Rel. No. 2342 (Jan. 11, 2005), the SEC asserted that two registered representatives effected late trades for customers of their broker-dealer employer. The SEC determined that this conduct amounted to aiding and abetting the employer’s violation of Rule 22c-1. The settlement agreement required disgorgement and the payment of civil penalties. In the Matter of Southwest Securities, Inc., Daniel R. Leland, Kerry M. Rigdon and Kevin J. Marsh, Investment Advisers Act Rel. No. 2341 (Jan. 10, 2005). The SEC also initiated enforcement actions against investment advisers that permitted clients to “confirm” trades after the 4:00 p.m. close of the market, in violation of the Rule 22c-1 of the Investment Company Act (the forward pricing rule). In the Matter of Mutuals.Com Inc., Investment Advisers Act Rel. No. 2661 (Sept. 26, 2007).

[4]

The SEC settled an enforcement action against a hedge fund, its registered investment adviser and its employees in connection

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with alleged late trading in In the Matter of Ritchie Capital Mgmt., LLC, Investment Advisers Act Rel. No. 2701 (Feb. 5, 2008). The SEC alleged that between 2001 and 2003, the investment adviser placed thousands of trades in mutual fund shares using post-4:00 p.m. news and market information to make trading decisions, while receiving the NAV determined earlier in the day. The SEC asserted that the conduct violated Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, and aided and abetted the violations of Rule 22c-1 under the Investment Company Act by mutual funds and dealers and underwriters of the mutual funds in which the respondents allegedly late traded. Without admitting or denying the allegations, the hedge fund, the investment adviser and its employees consented to cease and desist orders, the disgorgement of $30 million in profits and more than $2.5 million in civil penalties.

[B] Market Timing

Nothing in either the Investment Company Act or the Investment Advisers Act expressly prohibited the practice of market timing, which generally refers to short term trading that exploits mutual fund pricing procedures. Because advisers generally price portfolio holdings in open-end funds only once a day, and because the value of the securities those shares represent fluctuates continuously, share values potentially may diverge from the market value of their underlying assets. This occurs, for example, with funds based on international holdings because of time zone differences. For example, when a fund with international holdings prices shares at 4:00 pm using the closing price of the securities on a foreign exchange, the value assigned will not reflect events that occurred between the closing of the foreign exchange and 4:00 pm. Market timers engage in short-term trading to take advantage of the profit potential created when a disparity exists between a funds’ NAV and the current market value of its portfolio holdings.

Regulators contend that market timing increases the cost of administering the fund and harms other fund shareholders by forcing the manager to keep cash available to meet liquidity needs created by frequent redemptions. Regulators also have asserted that the profits that market timers realize by selling shares may dilute the value of the shares held by long-term investors.

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Enforcement actions against investment advisers for permitting market timing have proceeded on theories of breach of fiduciary duty and inadequate disclosure. Many funds included disclosures in their prospectuses and other offering documents that they discouraged or prohibited market timing. Regulators contend that if a fund prospectus disclosed that it disfavored market timing, but, in practice, the fund’s adviser permitted or failed to prevent favored individuals or companies from engaging in such trading, the adviser violated securities laws prohibiting materially misleading disclosures in connection with a securities offering. The non-disclosure of conflicts of interest arising out of arrangements between advisers and market timers may also breach an adviser’s fiduciary duties to fund shareholders.

Additionally, several advisers allegedly permitted market timing in exchange for long-term investments in other fee-generating vehicles managed by the adviser, sometimes called “sticky assets.”

[1]

In the Matter of Alliance Capital Mgmt., LP, Investment Advisers Act Rel. No. 2205A (Jan. 14, 2004), was the first market timing settlement that the NYAG announced against an investment adviser. Alliance Capital Management (“Alliance”) allegedly authorized frequent trading of its mutual fund shares by certain fund investors in exchange for a commitment of sticky assets. State and federal regulators claimed that Alliance memorialized these arrangements, which usually authorized timing capacity in mutual funds in proportion to long-term investments in other investment vehicles that Alliance managed (i.e., for every $5 in timing capacity, the investor would have to invest $1 long-term in a separate fund). At its height in 2003, according to federal and state regulators, Alliance had allotted over $600 million in timing capacity, and the sticky assets became the primary investment assets in Alliance hedge funds. Frequent trading by fund investors was inconsistent with Alliance fund prospectus disclosures, which prohibited frequent, short-term trading by fund investors.

The SEC and the NYAG jointly announced settlements with Alliance in December 2003. The settlements stated that Alliance permitted frequent trading in violation of the anti-market timing policies in the fund’s prospectuses, which rendered the prospectuses materially misleading under Section 34(b) of the Company Act. The SEC further claimed that undisclosed side-agreements with market timers violated the adviser’s fiduciary obligation

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to fund shareholders under Section 206 of the Investment Advisers Act.

Additionally, the SEC and NYAG alleged that Alliance had provided non-public information regarding the portfolio holdings of certain mutual funds to a market timer. These alleged disclosures violated the adviser’s confidentiality policy and allowed the timer to take a short position in securities owned by the fund and profit from market timing the funds during a downward market. The settlement asserted that the adviser’s breach of a confidentiality agreement and subsequent dissemination of material, non-public information about portfolio holdings violated Section 206 of the Investment Advisers Act, and Section 204A, which requires a fund manager to establish policies reasonably designed to prevent the misuse of material, nonpublic information.

In the settlement agreements, Alliance agreed to disgorgement and penalties. In a separate agreement with the NYAG, Alliance also agreed to reduce its mutual fund fees by 20% for at least a five-year period and to undertake certain compliance reforms including, e.g., maintaining a Code of Ethics Oversight Committee and an Internal Compliance Controls Committee, retaining an Independent Compliance Consultant to review Alliance’s policies and procedures, and requiring the chief compliance officer to report any breach of fiduciary duty or breach of the federal securities laws to the independent directors of the Alliance-advised funds.

[2]

In In the Matter of Bank of America Capital Mgmt., LLC, BACAP Distributors, LLC, and Banc of America Securities, LLC, Investment Advisers Act Rel. No. 2355 (Feb. 9, 2005), the SEC alleged that Banc of America Capital Management, LLC (“BACAP”), a registered investment adviser and Bank of America (“BOA”) subsidiary, violated the federal securities laws by entering into market timing arrangements with investors without disclosing the arrangements and in violation of its anti-market timing policies. The SEC claimed that “[b]y placing its own interests in generating fees for itself and affiliated entities above Nation Funds’ shareholders, and by failing to disclose these arrangements and resulting conflicts of interest, BACAP breached its fiduciary duty to shareholders in the funds where the short-term or excessive trading took place.” The SEC also claimed that BACAP’s conduct violated Section 206 of the Investment

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Advisers Act (fiduciary duty owed to shareholders), Section 34(b) of the Company Act (materially misleading statement in registration statement), Rule 17d-1 of the Investment Company Act (fund participation in joint arrangement), and Rule 20a-1 of the Investment Company Act (misleading proxy statement). Pursuant to the terms of the settlement, which included additional allegations leveled against affiliated BOA subsidiaries acting as broker-dealer and distributor for the funds, BOA consented to disgorgement and the payment of a civil penalty. In a separate agreement with the NYAG, BOA also agreed to reduce its mutual fund fees by $160 million over a period of five years and to implement corporate governance reforms reasonably designed to prevent the recurrence of similar violations.

[3]

Federal and state regulators initiated many market timing enforcement actions on similar theories. See, e.g., In the Matter of Columbia Mgmt. Advisors, Inc. and Columbia Funds Distributor, Inc., Investment Advisers Act Rel. No. 2351 (Feb. 9, 2005); In the Matter of Harold J. Baxter, Investment Advisers Act Rel. No. 2329 (Nov. 17, 2004); In the Matter of Janus Capital Mgmt., LLC, Investment Advisers Act Rel. No. 2277 (Aug. 8, 2004); In the Matter of Pilgrim Baxter & Associates, Investment Advisers Act Rel. No. 2251 (June 21, 2004); In the Matter of Strong Capital Mgmt. Inc., Investment Advisers Act Rel. No. 2239 (May 20, 2004) (fiduciary and disclosure obligations); In the Matter of Putnam Investment Mgmt., LLC, Investment Advisers Act Rel. No. 2226 (Apr. 8, 2004); In the Matter of Massachusetts Financial Services Co., Investment Advisers Act Rel. No. 2213 (Feb. 5, 2004).

[4]

In SEC v. Tambone, No. 07-1384 (1st Cir. 2010), the U.S. Court of Appeals for the First Circuit, en banc, dismissed SEC 10b-5 claims brought against two former executives of the principal underwriter and distributor of a mutual fund complex, finding that they could not be held liable for implied statements. The action alleged that the former executives committed fraud and aided and abetted the distributor’s fraud by entering into, approving, and permitting arrangements allowing preferred customers to engage in market-timing in mutual funds, while at the same time offering those funds using prospectuses that represented that market-timing was discouraged or prohibited. The court rejected the SEC’s broad view of primary liability. It decided

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that a securities professional cannot be said to “make” a statement, such that liability under Rule 10b-5(b) may attach, by (1) using statements to sell securities, regardless of whether those statements were crafted entirely by others, or (2) directing the offering and sale of securities on behalf of an underwriter, thus making an implied statement that he has a reasonable basis to believe that the key representations in the relevant prospectus are truthful and complete. Note that this case was decided prior the Supreme Court’s decision in the Janus case. After the SEC stipulated to dismiss 10b-5 aiding and abetting claims, each defendant settled the remaining claims by agreeing to disgorgement plus interest and a civil penalty of $75,000. See Lit. Rel. No. 22359 (May 8, 2012).

[5]

In State v. Samaritan Asset Mgmt. Servs, Inc., the New York Supreme Court allowed the NYAG to proceed with a suit alleging that certain affiliated hedge funds engaged in a deceptive scheme to evade mutual funds’ market timing restrictions. NY. Sup. Ct. No. 504969/06, 2008 N.Y. Misc. LEXIS 6338 (N.Y. Sup. Ct. Oct. 29, 2008). The suit, which named the hedge fund’s sponsor, general partner, manager and investment adviser, alleged that hedge funds employed multiple account numbers, omnibus accounts, and brokerage accounts with timing capacity arrangements with mutual funds in order to circumvent mutual funds’ market-timing defenses. The court denied the defendants’ motion to dismiss, stating that the allegations in the complaint sufficiently allege fraudulent practices under the Martin Act and its Executive Law § 63(12) (New York’s general anti-fraud statute). Notably, although the court conceded that sustaining a fraud charge under the Martin Act for engaging in deception to evade market timing restrictions was without precedent, it noted that similar conduct has routinely been considered a violation of Section 10(b) of the Exchange Act. Given the overlapping coverage of the Martin Act and its federal counterpart, the Court concluded that attempted evasion of market timing restrictions through deceptive means can constitute a fraudulent practice under the Martin Act as well.

[6]

In In the Matter of Michael K. Brugman, Investment Advisers Act Rel. No. 2831 (Jan. 14, 2009), the SEC alleged that an adviser’s former institutional salesman accepted personal payments totaling over $3 million from various investors in exchange for procuring

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market timing capacity within the adviser’s funds. In response to the alleged conduct, the SEC issued an Order Instituting Administrative and Cease and Desist Proceedings pursuant to Sections 15(b) and 21(c) of the Exchange Act, Section 203(f) of the Advisers Act and Section 9(b) of the Investment Company Act. Without admitting or denying the allegations, Brugman agreed to a cease and desist order, a permanent bar from association with brokers, dealers, investment advisers, and disgorgement of $700,000.

[7]

Market timing-related conduct also resulted in criminal violations in 2008. On May 7, 2008, the U.S. District Court in Pennsylvania sentenced a broker-dealer registered representative and an investment adviser hedge fund for market timing activities. U.S. v. Beacon Rock Capital LLC and Thomas Gerbasio, Criminal Action No. 07-00142 (E.D. Pa.), Lit. Rel. No. 20567 (May 12, 2008). The U.S. Attorney for the Eastern District of Pennsylvania alleged that the registered representative and the investment adviser implemented trading strategies to evade mutual funds’ market timing restrictions, which enabled them to make more than 26,000 market timing trades of shares of various mutual funds over the course of four years. The investment adviser pled guilty to securities fraud and was ordered to forfeit profits and pay fines totaling over $1 million, and the registered representative also pled guilty to securities fraud, was sentenced to one year and one day in prison and ordered to pay a fine of $7,500. According to the SEC’s press release, this was the first criminal case brought in connection with market timing.

[8]

In In the Matter of Lammert, Initial Decision Rel. No. 348 (Apr. 28, 2008), an ALJ found that two officials associated with Janus Capital Management (“Janus”), an investment adviser to several mutual fund families, authorized certain investors to engage in market timing activity despite market timing prohibitions articulated in the funds’ prospectuses. The ALJ held that the officials, who did not play a role in drafting the prospectus and who did not regularly report to the Board of Directors, could not be primarily liable under Section 10(b) of the Exchange Act or Section 17(a) of the Securities Act because no material misstatement or omission was attributable to them. However, the ALJ determined that the two officials caused certain of the adviser’s primary violations. Warren Lammert, a fund portfolio

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manager, approved the market timing activities at issue and acted negligently in failing to read the Fund’s prospectus or otherwise inquire about the Fund’s market timing policies. Lars Soderberg, a vice president and registered representative of the adviser, knew of and was in a position to stop the market timing arrangements, and acted negligently in failing to monitor market timer’s trading activity after receiving assurances from the market timer that it would pursue a more conservative trading strategy. Because negligence is sufficient to show violations of Sections 17(a)(2) and 17(a)(3) of the Securities Act, Section 206(2) of the Advisers Act and Section 34(b) of the Investment Company Act, the ALJ held that the respondents caused the adviser’s violations of those provisions. He ordered Lammert and Soderberge to cease and desist from future violations.

The SEC also issued an Order Instituting Proceedings against a third Janus official, Assistant Vice President and Regional Sales Director, Lance Newcomb. The ALJ determined that Newcomb did not act negligently; he had attempted to prevent the market timing transactions by suspending the timers’ trading, but those suspensions were lifted by others at Janus. Because Newcomb did not act negligently, the ALJ dropped the charges against him.

[9]

In In the Matter of Gabelli Funds, LLC, Investment Advisers Act Rel. No. 28253, (Apr. 24, 2008), the SEC settled charges against an investment adviser for facilitating market timing of purchases of its mutual fund. The SEC alleged that registered investment adviser, Gabelli Funds, LLC (“Gabelli”), permitted a hedge fund investor to market time a mutual fund it managed in exchange for long-term investments in an affiliated hedge fund. The SEC further alleged that the adviser failed to report the market timing arrangement to the Fund’s Board of Directors, and that the arrangement was contrary to the Fund’s existing practice of monitoring trading activity with an eye toward preventing market timing. Additionally, the SEC asserted that due to the market timing arrangements, the hedge fund investor acquired an aggregate investment in the mutual fund that exceeded three percent of the Fund’s outstanding shares, in contravention of Investment Company Act Section 12(d)(1)(B)(i), which prohibits an investment company from knowingly selling more than three percent of its outstanding shares to another investment company. As a result of this alleged conduct, the SEC

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asserted that Gabelli violated Sections 206(2) of the Advisers Act, and Sections 12(d)(1)(B)(i) and Sections 17(d) of the Investment Company Act and Rule 17d-1 thereunder. Without admitting or denying the SEC’s allegations, Gabelli consented to cease and desist orders, censure, and the payment $16 million in disgorgement, interest and penalties.

In related actions, the SEC filed complaints against the Fund’s former portfolio manager and the adviser’s chief operating officer and the alleged market timer for their roles in the alleged market- timing scheme. SEC v. Marc J. Gabelli and Bruce Alpert, Lit. Rel. No. 20539 (Apr. 24, 2008); SEC v. Headstart Advisers Ltd., Lit. Rel. No. 20524 (Apr. 10, 2008). Gabelli argued that the five year statute of limitations precluded the SEC’s action for civil penalties. In Gabelli v. SEC, 133 S. Ct. 1216 (2013), the United States Supreme Court ruled that the statute of limitations barring the SEC from seeking civil penalties more than five years from the date a claim accrued begins to run when the fraud occurs and is not subject to the discovery rule. See discussion at III.T[2], supra.

[10]

In In the Matter of Joseph John Vancook, Exchange Act Rel. No. 61039A (Nov. 20, 2009), the SEC alleged that Joseph Vancook, a partial owner of a registered broker-dealer, engaged in late trading of mutual fund shares in violation of Section 10(b) and Rule 10b-5 of the Exchange Act. Vancook also allegedly violated Section 17(a)(1) and Rule 17a-3(a)(6) by failing to maintain proper records of the time final trade orders were received. Vancook was barred from future association with broker-dealers; ordered to cease and desist from future violations; and assessed a pecuniary penalty of $100,000 in addition to disgorgement of his profits from late trading in the amount of $500,000.

[11]

In In the Matter of American Skandia Investment Services Inc., Investment Advisers Act Rel. No. 2867 (Apr. 17, 2009), the SEC charged an investment adviser with a violation of Section 206(2) of the Investment Advisers Act in connection with the alleged failure of the investment adviser to review short-term trading in sub-accounts for variable annuities and to respond to complaints from advisers to the sub-accounts about the effect of short-term trades on sub-account performance. Without admitting or denying the allegations, the investment adviser agreed to certain undertakings, including ongoing cooperation with the SEC’s

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investigation, periodic compliance reviews, disgorgement of $34 million, and a civil penalty of $34 million.

[12]

The SEC announced an order against Martin J. Druffner and Skifter Ajro, former registered representatives of broker-dealer Prudential Securities, Inc., in a civil injunctive action filed by the SEC on November 4, 2003, requiring them to pay $1,131,157 and $124,427, respectively, in disgorgement and interest for fraud in connection with their deceptive market timing trades in dozens of mutual funds. The court had previously entered judgments against Druffner and Ajro on October 10, 2006 enjoining them from future violations of the federal securities laws. The Commission alleged that defendants were part of a group of registered representatives that defrauded mutual fund companies and the funds’ shareholders by placing thousands of market timing trades worth more than $1 billion for five hedge fund customers from at least January 2001 through September 2003, when they knew that the mutual fund companies monitored and attempted to restrict excessive trading in their mutual funds. To evade those restrictions when placing market timing trades, members of the group allegedly disguised their own identities by establishing multiple broker identification numbers and disguised their customers’ identities by opening numerous customer accounts for what were in reality only a few customers. SEC v. Martin J. Druffner, Lit. Rel. No. 22047, Civ. No. 03-12154-NMG (D. Mass. July 18, 2011).

[C] Compensation Arrangements

The focus of mutual fund investigations extended beyond market timing and late trading and into compensation arrangements between funds and broker-dealers that distributed their funds. In particular, regulators challenged (a) directed brokerage; (b) revenue sharing arrangements; (c) soft dollar transactions, and the potential conflicts of interest such payments created for investment advisers.

[1]

Directed Brokerage

Directed brokerage refers to an arrangement between a fund adviser and a distributor in which a mutual fund adviser agrees to direct the execution of fund portfolio transactions to selling brokers who promote and distribute fund shares. In exchange for directed brokerage, the fund receives heightened visibility

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and promotion of its shares from the selling broker. Fund brokerage is an asset of the fund and its allocation is subject to the adviser’s fiduciary obligations, including disclosure obligations and management’s duty to attain “best execution” for the fund’s shareholders.

Enforcement actions challenging directed brokerage arrangements typically proceeded on a theory that binding a fund to direct specific commissions to selling broker-dealers raises potential conflicts of interest, and an adviser’s failure to disclose those conflicts breaches fiduciary obligations owed to fund shareholders or disclosure obligations under Section 206 of the Investment Advisers Act. Regulators asserted that because advisory fees based upon fund assets provide incentives for advisers to promote the distribution of fund shares. Regulators maintained that marketing considerations potentially conflict with the adviser’s obligation to consider the best interests of fund shareholders in determining where to direct fund transactions.

Regulators also contended that directed brokerage arrangements raise other concerns: First, directed brokerage may pose conflicts for brokers by interfering with the suitability of their fund recommendations to their customers. Second, directed brokerage indirectly leads to the sale of fund shares that may impose excessive sales charges on shareholders. Third, directed brokerage to an affiliated broker-dealer may violate Section 17(d) of the Investment Company Act, which prohibits joint distribution arrangements. Finally, directed brokerage diminishes the transparency of distribution expenses. Regulators maintain that fund shareholders are entitled to detailed information regarding expenses, including distribution fees, deducted from fund assets. Use of brokerage commissions to promote marketing and sales, could permit funds to conceal distribution costs, hindering investors’ ability to evaluate fund expense levels.

In light of the above considerations, the SEC amended Rule 12b-1(h) in 2004 to prohibit distribution considerations from influencing the broker-selection process for executing portfolio transactions. 17 C.F.R. §270.12b-1(h). The Rule requires that advisers adopt and utilize independently-approved procedures to ensure that a selling broker’s promotional or distribution efforts are not taken into account before a fund may direct the execution of that transaction through the selling broker. Below are historical cases where the SEC pursued

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enforcement proceedings against advisers and distributors that engaged in undisclosed directed brokerage arrangements prior to the ban of the practice.

[a]

Franklin Advisers, Inc. (“FA”) and Franklin/Templeton Distributors, Inc. (“FTDI”) agreed to pay civil penalties and disgorgement, and to undertake corporate government reforms for its alleged participation in undisclosed directed brokerage arrangements. In the Matter of Franklin Advisers, Inc. and Franklin/Templeton Distributors, Inc., Investment Advisers Act Rel. No. 2337 (Dec. 13, 2004). FTDI, acting as principal underwriter and distributor of shares for Franklin Templeton Investments, allegedly negotiated the purchase of “shelf-space” (placement on a broker’s public list of recommended mutual funds) with 39 broker-dealers in exchange for directed brokerage. The arrangements with each broker set specific, annual requirements. The SEC claimed that FTDI took steps to periodically monitor how brokerage commissions were allocated to ensure that it met its alleged pre-arranged brokerage targets.

FA, as investment adviser for Franklin Templeton Investments, allegedly benefited by using fund assets in exchange for shelf-space outside of an approved 12b-1 distribution plan. The SEC claimed that FA did not adequately disclose its arrangements to the funds’ board or shareholders. According to the SEC, by not disclosing its decision to use fund assets, FA denied the board the opportunity to evaluate whether the arrangements were in the best interests of the fund shareholders or overall marketing expenses. Although the FA fund prospectuses disclosed that “the sale of Fund shares . . . may be considered a factor in the selection of broker-dealers to execute the Funds’ portfolio transactions,” the SEC maintained that the disclosure was inadequate and should have included a detailed description of the actual shelf-space arrangements with broker-dealers and the use of brokerage commissions instead of cash to satisfy them. The SEC argued that disclosure deficiencies violated FA’s fiduciary and disclosure obligations under Section 206 of the Investment Advisers Act and Section 34(b) of the Investment Company Act, respectively.

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Additionally, the SEC alleged that FTDI did not take efforts to ensure that the commissions directed to broker-dealers came from the specific fund that the broker-dealer was promoting in connection with the shelf-space arrangement. Accordingly, the use of one fund’s assets may have been used to promote the sale and distribution of another fund’s shares. This allegedly constituted a joint distribution arrangement in violation of Section 17(d) of the Investment Company Act. In consenting to the settlement, FA and FTDI, without admitting or denying the allegations, undertook to implement policies and procedures designed to ensure the full disclosure of future shelf-space arrangements, and to prevent promotional considerations from influencing broker-selection for portfolio transactions.

In a companion case, the Attorney General of California also settled an enforcement action with FTDI as distributor of the Franklin Templeton Funds for its alleged failure to disclose directed brokerage arrangements to investors. Settlement Agreement, dated Nov. 16, 2004, available at http://ag.ca.gov/newsalerts/cms04/04-133a.pdf.

[b]

See also In the Matter of PA Fund Mgmt. LLC, PEA Capital LLC, and PA Distributors, LLC, Investment Advisers Act Rel. No. 2295 (Sept. 15, 2004) (failure to disclose directed brokerage arrangements violated the adviser’s and distributor’s fiduciary obligations under the Investment Advisers Act and the joint distribution arrangement prohibition of the Investment Company Act and ordering dis-gorgement and civil penalties); Settlement Agreement, dated Sept. 13, 2004, available at http://ag.ca.gov/newsalerts/cms04/04-105_settlement.pdf (entering $9 million settlement against PA Distributors for alleged violations of California State law arising out of the same conduct).

[c]

Massachusetts Financial Services (“MFS”) settled an SEC enforcement action related to its alleged use of bilateral agreements, or “Strategic Alliances,” with approximately 100 broker-dealers to whom MFS directed brokerage commissions. In the Matter of Massachusetts Financial Services Company, Investment Advisers Act Rel. No. 2224 (Mar. 31, 2004). In exchange for directed brokerage, MFS allegedly received heightened visibility on the

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broker-dealers’ distribution networks. According to the SEC, MFS failed to disclose the arrangements and the conflicts of interest they created. MFS agreed to pay a penalty and disgorgement. MFS neither admitted nor denied the SEC’s allegations.

[d]

See also In the Matter of Putnam Investment Mgmt. Corp., Investment Advisers Act Rel. No. 2370 (Mar. 23, 2005) (alleging an adviser’s failure to disclose directed brokerage arrangements in violation of fiduciary obligations under Section 206 of the Investment Advisers Act and disclosure obligations under Section 34 of the Investment Company Act, and imposing $40 million in civil penalties as settlement condition).

[e]

In In the Matter of Lawrence J. Lasser, Investment Advisers Act Rel. No. 2578 (Jan. 9, 2007), the SEC settled a directed brokerage allegation against an officer and a trustee of mutual fund. Lawrence J. Lasser was President of Putnam Investment Management (“Putnam”), the investment adviser to Putnam funds. He also sat on the board of trustees of Putnam funds. Putnam’s distributor allegedly entered into shelf-space arrangements with broker-dealers in exchange for directed brokerage. Putnam did not disclose the arrangements to the funds’ board. As Putnam’s President, Lasser was “responsible for ensuring that Putnam fulfilled its fiduciary duty to disclose adequately to the Putnam Board the use of fund brokerage commissions and potential conflicts of interest created by the use of fund brokerage commissions.” Despite his alleged awareness of the directed brokerage arrangements and their associative conflicts of interest, the SEC averred that Lasser neither disclosed the use of brokerage commissions to satisfy shelf-space arrangements to his fellow trustees, nor ensured that Putnam disclosed conflict of interests the arrangements created to the board. The SEC argued that this failure aided, abetted and caused Putnam’s breach of its fiduciary duty under Section 206 of the Investment Advisers Act. Without admitting or denying the allegations, Lasser agreed to cease and desist from future violations of Section 206, and to pay a civil penalty.

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[f]

In In the Matter of John Hancock Investment Mgmt. Serv., LLC, Investment Advisers Act Rel. No. 2610 (June 25, 2007), an investment adviser allegedly failed to disclose to the funds’ boards and fund shareholders that directed brokerage had been used to offset the investment adviser’s revenue sharing obligations to selling brokers. The SEC alleged that the use of Fund assets to offset marketing expenses for the adviser violated Section 206(2) of the Investment Advisers Act, Section 34(b) of the Investment Company Act (material misstatements in a prospectus) and Section 17(d) of the Investment Company Act (joint arrangement between the adviser and the distributor). Without admitting or denying the allegations, the adviser consented to a censure, a cease and desist order, $18 million in dis-gorgement, $2 million in civil penalties and additional undertakings.

[g]

Directed brokerage arrangements may also violate FINRA rules and regulations. In August 2006, a hearing panel of the NASD (FINRA’s predecessor) ruled that American Funds Distributors, Inc. (“AFD”), principal underwriter and distributor of the American Funds family of mutual funds, violated NASD’s “Anti-Reciprocal Rule” by directing brokerage commissions to top sellers of American Funds mutual funds from 2001 through 2003. Press Release, dated August 30, 2006, available at http://www.nasd.com/PressRoom/NewsReleases/2006NewsReleases/NASDW_ 017294. The anti-reciprocal rule prohibits firms from favoring the sale of shares of mutual funds on the basis of brokerage commissions received by the firm. NASD found that AFD directed brokerage commissions to firms as a reward for sales of American Funds in violation of the anti-reciprocal rule, and imposed a $5 million fine.

[2]

Revenue Sharing

Revenue sharing refers to an arrangement in which a mutual fund adviser agrees to make payments to broker dealers out of the adviser’s bona fide profits. Unlike directed brokerage, revenue sharing is not expressly prohibited by the federal securities laws. However, a broker-dealer’s promotion of a mutual fund family pursuant to the terms of a revenue sharing agreement – without point of sale disclosure of the arrangement to investors – may

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violate the federal securities laws. Section 17(a)(2) of the Securities Act prohibits the use of materially misleading information in the attainment of money in connection with the offer or sale of securities. Rule 10b-10 promulgated under Section 15B(c)(1) of the Exchange Act prohibits the inducement of a purchase or sale of securities by a customer unless the broker or dealer provides a written disclosure of any remuneration received in connection with the transaction.

[a]

The SEC settled an enforcement action against Citigroup Global Markets, Inc. (“CGMI”) for its alleged failure to provide customers with point of sale disclosures relating to revenue sharing payments. In the Matter of Citigroup Global Markets, Inc., Exchange Act Rel. No. 51415 (Mar. 23, 2005). Among other omissions, the SEC alleged that CGMI failed to disclose to investors that approximately 75 mutual fund families made revenue sharing payments to CGMI in exchange for access to “shelf space” within CGMI’s retail brokerage network. The SEC asserted that CGMI offered and sold only the funds of those mutual fund complexes that made the revenue sharing payments. CGMI allegedly provided additional benefits to the mutual fund complexes that made higher revenue sharing payments, including increased access to branch offices, greater agenda space at sales meetings, and visibility in CGMI’s in-house publications and broadcasts. According to the SEC, this practice created a conflict of interest that CGMI failed to adequately disclose to its customers, in violation of Section 17(a)(2) of the Securities Act and Rule 10b-10 under the Exchange Act. Without admitting or denying the allegations, CGMI consented to the payment of a civil penalty and to undertake corporate governance reforms.

[b]

The SEC settled enforcement proceedings against American Express Financial Advisors (“AEFA”) for its alleged failure to disclose revenue sharing arrangements to clients. In the Matter of American Express Financial Advisors, Inc. (now known as Ameriprise Financial Services, Inc.), Exchange Act Rel. No. 52862 (Dec. 1, 2005) AEFA allegedly granted exclusive shelf space for the sale and marketing of mutual funds, increased access to AEFA financial advisers and reduced transaction charges to mutual

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fund families in exchange for millions of dollars in revenue sharing payments. According to the SEC, AEFA did not disclose these potential conflicts of interest when it promoted and offered shares of these mutual funds to its customers, in violation of Section 17(a)(2) of the Securities Act, and Rule 10b-10 under the Exchange Act. Without admitting or denying the SEC findings, AEFA consented to a cease and desist order, the payment of civil penalties, and to undertake certain corporate governance reforms.

[c]

In In the Matter of OppenheimerFunds, Inc. and OppenheimerFunds Distributor, Inc., Investment Advisers Act Rel. No. 2427 (Sept. 14, 2005), OppenheimerFunds Distributors, Inc. (“ODI”), a distributor of the OppenheimerFunds mutual funds, allegedly entered into revenue-sharing agreements with broker-dealers to obtain heightened visibility on certain broker-dealers’ preferred lists. Several of the alleged arrangements permitted the revenue-sharing arrangements to be satisfied through directed brokerage. OppenheimerFunds, Inc (“OFI”), investment adviser to the funds, included in its advisory agreements and Statements of Additional Information that it may consider sales of fund shares as a factor in determining the allocation of brokerage commissions. It did not, however, disclose the terms of the revenue-sharing arrangements or that it directed brokerage commissions to satisfy those arrangements. The SEC charged that OFI breached its fiduciary obligations under Section 206 of the Investment Advisers Act, and that ODI aided and abetted the violation. It further alleged that the disclosures were materially misleading, in violation of Section 34(b) of the Investment Company Act. Without admitting or denying the allegations, OppenheimerFunds consented to various undertakings, a cease and desist order, and censure.

[3]

Soft Dollars

Soft dollar arrangements generally involve the direction by an investment adviser to a broker to use client commission credits or dollars to purchase investment research or brokerage services for the adviser’s advisory clients. The use of soft dollars arose with the abolition of fixed commission rates. Investment advisers feared that they would be liable for breach of their fiduciary

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duty if they paid more than the lowest possible commission rates, even if the charging broker provided superior services. To allay those concerns, Congress added Section 28(e) of the Exchange Act, which creates a safe harbor from liability for an investment adviser who pays more than minimum commission rates for “brokerage and research services,” provided that the adviser determines in good faith that the commission paid is reasonable in relation to the value of brokerage and research services received.

When advisers pay more-than-minimum commission rates for products and services that fall outside the scope of Section 28(e)’s limited carve-out for “research and brokerage services,” however, they potentially may violate their fiduciary or disclosure obligations under the federal securities laws because they are using fund assets to purchase services or products that they could purchase with their advisory fee. An adviser’s decision to use fund assets to purchase products and services not covered by Section 28(e) must be disclosed to the fund’s board and shareholders.

The definition of “research services” is imprecise. Whether products or services obtained in exchange for soft dollars fall within 28(e)’s safe harbor has required frequent clarification. In 1976, the SEC issued an interpretive release explaining that the safe harbor does not protect “products and services that are readily and customarily available and offered to the general public on a commercial basis.” Securities Exchange Act Rel. No. 12251 (Mar. 24, 1976). In 1986, the Commission issued another interpretive release, stating “the controlling principle to be used to determine whether something is research is whether it provides lawful and appropriate assistance to the money manager in the performance of his investment decision-making responsibilities.” Securities Exchange Act Rel. No. 23170 (Apr. 23, 1986). The release also reaffirmed the applicability of the safe harbor to the use of commission dollars to pay for third-party research, and reiterated the importance of written disclosure of client commission arrangements to clients. The safe harbor was further refined in 2001, when the SEC adopted a release to accommodate NASDAQ trading practices, and interpreted the safe harbor to encompass riskless principal transactions reported under NASD trade reporting rules.

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In 2006, the Commission issued additional clarification in an interpretive release, noting that an adviser must conclude that the services or products purchased with soft dollars constitute “advice,” “analyses” or “reports.” Securities Exchange Act Rel. No. 54165 (July 24, 2006). The Commission elaborated that “an important common element among ‘advice,’ ‘analyses,’ and ‘reports’ is that each reflects substantive content – that is, the expression of reasoning or knowledge. Thus, in determining whether a product or service is eligible as ‘research’ under Section 28(e), the money manager must conclude that it reflects the expression of reasoning or knowledge and relates to [relevant subject matter].” For purposes of a safe harbor, the SEC considers: (1) payment of the third-party research preparer directly; (2) review of the description of the services to be paid for with client commission for any red flag and agreement with the money manager that client commissions will be used only to pay for services covered by the safe harbor; and (3) development and maintenance of procedures for research payments to be documented and paid for promptly. The release holds that mass-marketed publications, inherently tangible products (such as telephone lines, operational services, or business supplies), and expenses for travel or meals fall outside the scope of the safe harbor. See also Investment Advisers Act Rel. No. 2763 (July 30, 2008) (proposed guidance to assist fund directors in their oversight of adviser’s use of soft dollars).

[a]

Regulators initiated enforcement proceedings related to soft dollar arrangements well before the market timing scandal. In In the Matter of Fleet Investment Advisors Inc., Investment Advisers Act Rel. No. 1821 (Sept. 9, 1999), an investment adviser disclosed that it was using soft money to direct brokerage commissions to brokers for research provided. Brokers allegedly received, however, compensation for client referrals rather than research. The adviser’s allegedly misleading disclosure regarding its use of client assets and its failure to seek and obtain best execution breached its fiduciary duties under Section 206 of the Investment Advisers Act. Additionally, the SEC alleged that the conduct violated Sections 207 and 204 of the Investment Advisers Act, which prohibit the dissemination of an untrue statement of material fact in any registration application or report filed with the commission, and require

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an adviser to amend materially false statements in Part II of Form ADV, respectively. The SEC also averred that the adviser’s acceptance of client referrals in exchange for brokerage commissions on behalf of the funds violated Section 17(e)(1) of the Investment Company Act, which prohibits an affiliated person of an investment company from accepting compensation for the purchase or sale of any property from any source other than a salary or wages from the investment company itself. Without admitting or denying the allegations, Fleet Advisors settled, consenting to a cease and desist order, and the payment of restitution.

See also In the Matter of S Squared Tech. Corp., Investment Advisers Act Rel. No. 1575 (Aug. 7, 1996) (adviser’s alleged failure to disclose its use of soft dollars to finance rent, salaries and legal fees violated Sections 206 and 207 of the Advisers Act and resulted in disgorgement and in the payment of civil penalties).

More recently, the SEC charged Kurt S. Hovan, a San Francisco-area investment adviser, with fraud for lying to clients about how brokerage commission rebates were being used and producing phony documents to cover up the fraud during an SEC examination. Hovan allegedly misappropriated more than $178,000 in “soft dollars” that he falsely claimed to be using to pay for legitimate investment research on his clients’ behalf, when he was actually spending those funds to pay his brother’s salary, purchase computer equipment and pay the firm’s office rent. The SEC also charged his wife, the firm’s chief financial officer and chief compliance officer, and brother, a portfolio manager at HCM, for their roles in the scheme. SEC v. Hovan, Lit. Rel. No. 22107, CV11-4795 (N.D. Cal. Sept. 28, 2011).

[b]

The SEC’s soft dollar cases also challenged soft dollar arrangements on a theory that they raised undisclosed and material conflicts of interest for advisers. In In the Matter of Clark T. Blizzard and Rudolph Abel, Investment Advisers Act Rel. No. 2253 (June 23, 2004), the SEC alleged that a sales executive at an investment adviser lobbied to have eight referral brokers added to the list of approved brokers, even though the firm’s broker selection committee determined that the referral brokers’ research products were

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inferior to research provided by other brokers on the approved list. By failing to disclose in its ADV that it considered referrals when awarding client brokerage via soft dollars, the SEC argued the firm breached its fiduciary obligations to current and potential investors in the fund, in violation of Section 206 of the Investment Advisers Act. The SEC did not bring charges against the salesman who petitioned for the inclusion of referral brokers on the soft dollar approved list because he played no role in the firm’s preparation of its ADV and other disclosures.

[c]

Similarly, in In the Matter of Rudney Associates, Inc. and Eric A. Rudney, Investment Advisers Act Rel. No. 2300 (Sept. 21, 2004), the SEC settled an enforcement proceeding against Rudney Associates for failing to disclose its soft dollar arrangement with TD Waterhouse Investor Services (“TDW”), a broker-dealer. The Commission maintained that “Rudney Associates did not disclose that it had a soft dollar arrangement as one of the factors considered in selecting TDW and in determining the reasonableness of its commissions as required in Part II, Item 12B [of its Form ADV].” Because “a fiduciary violates the antifraud provisions of the Investment Advisers Act if it acts in a potential conflict situation without fully disclosing the potential conflict and getting its clients’ consent to proceed,” Rudney Associates allegedly breached its fiduciary obligations to investors. Without admitting or denying the allegations, Rudney Associates consented to a cease and desist order, disgorgement, and the payment of a civil penalty.

[d]

In November 2009, FINRA announced sanctions against Terra Nova Financial, LLC, a broker-dealer and its Soft Dollar Supervisor, Soft Dollar Administrator, and Chief Compliance Officer in connection with over $1 million in improper soft dollar payments to or on behalf of five hedge fund managers. FINRA News Release, FINRA Fines Terra Nova Financial $400,000; Firm Made Over $1 Million in Improper Soft Dollars Payments (Nov. 23, 2009). The firm’s soft dollar policies required it to obtain and review fund offering documents. The firm, however, either did not obtain or adequately review the documents and made soft dollar payments for personal and other services for the

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managers that were improper because the payments were not authorized or clearly disclosed to investors in the fund documents or because the firm did not obtain adequate documentation or conduct an adequate review to determine that the fund documents authored the payments. FINRA found that the firm failed to follow its procedures, that the firm and the Soft Dollar Supervisor failed to supervise the soft dollar program and that the Firm and Chief Compliance Officer failed to develop appropriate supervisory systems. Sanctions included a fine of $400,000 for the firm and suspensions of the employees from 10 to 30 days.

[e]

Soft dollars are also under scrutiny in connection with inquiries into insider trading related to use of expert networks because investment managers may use soft dollars to pay for access to the expert networks.

VI. State Response to Credit and Liquidity Crisis

State regulators have responded to the credit and liquidity crisis and its corresponding impact on the fund industry through increased enforcement measures. At times, state activity has complemented federal enforcement activity. At other times, states have initiated independent proceedings.

[A] Massachusetts

[1]

In November 2008, the Secretary of the Commonwealth of Massachusetts settled an administrative complaint against Bear Stearns Asset Management, Inc. (“BSAM”) for conduct related to the collapse of two hedge funds BSAM managed (the same hedge funds at issue in SEC v. Ralph R. Cioffi and Matthew M. Tannin, discussed supra. The Complaint alleged that BSAM had significant exposure to conflicts of interest due to its routine securities transactions with its affiliated broker-dealer and with special purpose vehicles it structured. The Secretary asserted that BSAM lacked risk management controls sufficient to manage these conflicts. It further alleged that the adviser misrepresented to investors the extent of the control procedures it had implemented. BSAM agreed to cease and desist from future violations of M.G.L. c. 110A, §§ 101-102, a censure and the payment an administrative fine. In the Matter of Bear Stearns Asset Mgmt., Inc., Docket No. E-2007-0064 (Mass. Nov. 1, 2007).

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[2]

In 2009, the Secretary of the Commonwealth filed an administrative complaint against an adviser to the Reserve money market fund that “broke the buck.” Among other violations, the Secretary alleged that the adviser made material misrepresentations regarding its ability and intent to backstop the fund and regarding the fund Board’s valuation of the fund’s holdings of Lehman Brothers Holdings Inc.’s commercial paper at the time of the Lehman bankruptcy. The complaint seeks to impose cease and desist orders, an accounting of and restitution to all Massachusetts investors in the Fund, censure, and administrative fines. See In the Matter of Reserve Capital Mgmt., Inc., Admin. Complaint No. E-2008-0079 (Jan. 13, 2009), available at http://www.sec.state.ma.us/sct/archived/sctreserve/reservecomplaint.pdf.

[3]

In Bulldog Investors Gen. P’ship v. William F. Galvin, No. 07-1261-BLS2 (Suffolk Co., Sept. 30, 2009), the court held that the state was permitted to prevent an adviser from providing access by unqualified investors to a website that offered investment information on a firm’s funds. A decision by the Massachusetts Supreme Judicial Court on September 22, 2011 affirmed a finding that a hedge fund manager, Bulldog Investors General Partnership, and its principals, violated the Massachusetts Securities Act by offering unregistered securities to all visitors through its operation of an interactive website with investment information, in violation of the Massachusetts Securities Act. The Court rejected the hedge fund’s argument that the Secretary’s order violated the hedge fund’s First Amendment right to communicate information to consumers. Bulldog Investors General Partnership v. Secretary of the Commonwealth, No. SJC-10756 (Mass. S. Jud. Ct. Sept. 22, 2011).

[4]

On July 20, 2011, the Massachusetts’ Secretary of the Commonwealth Securities Division brought charges against RBC Capital Markets, LLC and its former registered representative, alleging that the parties sold leveraged, inverse and inverse-leveraged ETFs to clients who had limited to no understanding of these products and the unique risks associated with them, in part due to supervisory failures by the firm which allowed registered representatives to make numerous unsuitable recommendations to investors. In the Matter of RetBC Capital Markets, LLC & Michael D. Zukowski, Docket No. E-2009-0059, E-2011-0001 (Mass. Sec. Div. July 20, 2011).

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[5]

On October 26, 2011, the Massachusetts Security Division of the Secretary of the Commonwealth brought an action against The Bank of New York Mellon Corp. (BNY) with fraud for allegedly overcharging the state’s pension fund for currency trades for more than a decade, through undisclosed markups in currency trading while acting as a custodian for the state’s pension fund. In the Matter of The Bank of New York Mellon Corp., Docket No. E-2011-0044 (Mass. Oct. 26, 2011). BNY faces similar lawsuits brought by the state of New York, State v. Bank of New York Mellon, Index No. 99/114735 (N.Y. Co. Sup. Ct. Oct. 5, 2011) and Florida, State v. Bank of New York Mellon, Complaint (Fla. Cir. Ct. Aug. 11, 2011). The U.S. Attorney’s office for the Southern District of New York has also brought civil fraud charges against BNY relating to this conduct. USA v. The Bank of New York Mellon Corp, 11-CV-6969 (S.D.N.Y. Oct. 5, 2011).

[6]

In February, 2012, State Street Global Advisors settled allegations that it violated Massachusetts securities laws in connection with a CDO for which it acted as investment manager. The consent order states that State Street violated Massachusetts securities laws because the marketing materials for the CDO failed to disclose material information relating to a hedge fund’s involvement in the transaction. In the Matter of State Street Global Advisors (Carina CDO, Ltd.), Docket No. 2011-0023 (Mass. Sec. Div. Feb. 28, 2012).

[7]

In October 2012, Massachusetts filed an administrative complaint alleging violations of Massachusetts securities laws in connection with a CDO for which Putnam Advisory Co., LLC acted as collateral manager. Allegations in the complaint include omission of material facts, engaging in acts that operated as a fraud while registered as an investment adviser and engaging in dishonest conduct as an adviser. In the Matter of Putnam Advisory Co., LLC (Pyxis ABS CDOs), Docket No. 2011-0035 (Mass. Sec. Div. Oct. 17, 2012).

[B] Oregon

In Oregon v. Oppenheimer Funds, Inc., No. 09C14018 (Ore. Cir. Ct. Apr. 13, 2009), the Oregon Attorney General asserted state securities claims against Oppenheimer Funds in connection with losses in the 529 College Savings Plan resulting from investments in high risk

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instruments. The Attorney General alleged that OppenheimerFunds misrepresented investments as conservative when it was investing in speculative, “hedge-fund like” instruments. State of Oregon v. Oppenheimerfunds, Inc., No. 09C14018 (Marion Co. Apr. 13, 2009).

[C] California

The California Attorney General sued a prominent custodian bank, alleging that custodian bank misappropriated millions of dollars from CalPERS and CalSTRS, the state’s largest pension funds, by charging an undisclosed mark-up for the costs of foreign currency trades. The People of the State of California v. State Street Corporation, No. 34-2008-00008457-CU-MC-GDS (Super. Ct. Co. of Sacramento, Oct. 20, 2009).

VII. Limits of State Regulatory Authority

Congress enacted NSMIA, in part, to eliminate duplicative and contradictory regulatory standards and to designate “the Federal Government . . . [as] the exclusive regulator of national offerings of securities.” H.R. Rep. 104-622, 104th Cong., 2nd Sess. 1996 at 16. The legislative history of NSMIA discusses state remedial authority insofar as relates to prospectus disclosures for covered securities: NSMIA “precludes State regulators from, among other things, citing a State law against fraud or deceit or regarding broker-dealer sales practices as its justification for prohibiting the circulation of a prospectus or other offering document . . . The Committee intends to eliminate States’ authority to require or otherwise impose conditions on the disclosure of any information for covered securities.” H.R. Rep. 104-864, 104th Cong., 2nd Sess. 1996 at 40.

Litigants have challenged the remedial authority of state regulators. See generally, Lori A. Martin and Cristina Alger, State Regulators and the Mutual Fund Industry, 39 The Review of Securities and Commodities Regulation 219, 228-232 (Nov. 15, 2006). In particular, they have claimed that states lack the authority to compel reduction in advisory fees and that NSMIA preempts state authority to compel prospectus revisions.

[A] Challenges to Compulsory Reductions in Advisory Fees

The NYAG’s template market timing settlement required advisory fee reductions. The advisory fee reductions were typically imposed in addition to substantial monetary fines and penalties. One adviser challenged New York’s remedial authority to regulate or set

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an adviser’s fees as allegedly preempted by Section 36(b) of the Investment Company Act. J. & W. Seligman & Co., Inc. v. Spitzer, No. 05 Civ. 7781 (S.D.N.Y. Sept. 6, 2005).

Section 36(b) of the Investment Company Act provides an express right of action to challenge mutual fund advisory fees. In relevant part, Section 36(b) states, “[a]n action may be brought under this subsection by the Commission, or by a security holder of such registered investment company on behalf of such company, against such investment adviser, or any affiliated person … for breach of fiduciary duty in respect of such compensation.” 15 U.S.C. § 80a-36(b). Seligman contended that the creation of express rights of action – one by the SEC and the other by a mutual fund investor – impliedly preempts all other actions, including state regulatory challenges to advisory fees.

Seligman further argued that imposing fee reductions awards windfall recovery to future investors. According to the Seligman Complaint, any investors harmed by the adviser’s market timing conduct were past investors, not future ones. Fee reductions, however, would benefit uninjured, future investors, thus presenting an inappropriate remedial measure for market timing.

The district court declined to enjoin an investigation by the NYAG challenging Seligman’s mutual fund advisory fees and the information provided to the funds’ board of directors in connection with the advisory agreement renewals. Without deciding the preemption question, the district court refused to enjoin the NYAG’s investigation on the grounds that NSMIA preserves state enforcement authority. J. & W. Seligman & Co. Inc. v. Spitzer, No. 05 Civ. 7781 (KMW), 2007 U.S. Dist. LEXIS 71881 (Sept. 27, 2007). On March 13, 2009, without admitting or denying the allegations, Seligman agreed to pay $11.3 million to four mutual funds that were allegedly adversely affected by its adviser fee arrangements.

Although the scope of state regulatory authority at issue in the Seligman case was an issue of first impression, the preemptive effect of Section 36(b) as against state common law claims has been adjudicated in private litigation. In Green v. Fund Asset Mgmt., 245 F.3d 214 (3d Cir. 2001), the U.S. Court of Appeals for the Third Circuit held that nothing in the legislative history of Section 36(b) indicated Congressional intent to displace actions under state law, and that the maintenance of a suit at state law would not impede the accomplishment of the Act’s objectives.

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In 2010, the Supreme Court addressed Section 36(b) in Jones v. Harris, 130 S. Ct. 1418 (2010). The Court endorsed the 25-year-old Gartenberg factors for evaluating the legal obligations of investment company boards and investment advisers in the negotiation of investment advisory agreements for funds registered under the Investment Company Act. Liability under Section 36(b) requires that “an investment adviser must charge a fee that is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm’s length bargaining.” Importantly, the Court emphasized that “the standard for fiduciary breach under §36(b) does not call for judicial second-guessing of informed board decisions” and that courts should not “engage in a precise calculation of fees representative of arm’s-length bargaining.” The Supreme Court left open a few important issues, including the relevance of institutional separate account fees, relevance of fees for comparable mutual funds managed by competitors and the relevance of alleged process-based failures during the negotiation of investment advisory agreements.

In light of Jones v. Harris, the Supreme Court remanded another excessive fee case, Gallus v. Ameriprise Financial, 561 F.3d 816 (8th Cir. 2009). In that case, the plaintiff argued that the adviser breached its fiduciary duty to mutual fund investors by charging an advisory fee that exceeded the advisory fee for institutional separate accounts. The plaintiff also challenged the truthfulness and completeness of the competitive fee information and alleged that the adviser had misled the independent trustees. The district court concluded that institutional separate account fees were not a valid comparison because the nature and quality of services provided to the two sets of clients were dramatically different and ultimately dismissed the action. The Eighth Circuit reversed, noting that the district court had erred “in rejecting a comparison between the fees charged to [the adviser’s] institutional clients and its mutual fund clients.” The Eighth Circuit also noted that “[u]nscrupulous behavior with respect to either can constitute a breach of fiduciary duty.” Upon remand, the district court reinstated summary judgment; the plaintiffs again appealed and on March 30, 2012 the Eighth Circuit affirmed.

[B] Challenges to Compulsory Prospectus Revisions

There have been several challenges to state authority to compel revisions of mutual fund prospectus disclosures.

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[1]

Zuri-Invest AG v. Natwest Fin. Inc.

The federal district court for the Southern District of New York affirmed that NSMIA does not preempt state common law fraud claims. In Zuri-Invest AG v. Natwest Fin. Inc., private investors in a steel mill operating company sued an adviser and underwriters alleging both securities fraud and state common law fraud. 177 F. Supp. 2d 189 (S.D.N.Y. 2001). The defendants moved for summary judgment, arguing that NSMIA preempted the plaintiffs’ state claims.

In rejecting the defendants’ argument regarding express preemption, the court observed that the NSMIA preempts state laws regarding registration requirements and associative disclosures, not general allegations of fraud. The court also analyzed NSMIA’s savings clause and its legislative history, and concluded that Congress intended to preserve states’ ability to protect investors through state anti-fraud laws. The court observed that “legislative history indicates … the … ‘Committees’ intention not to alter, limit, expand or otherwise affect in any way any State statutory or common law fraud or deceit … in connection with securities or securities transactions’” and concluded that “[a] more clear cut statement against preemption would be hard to find.” The court also found persuasive Congress’ decision not to amend the savings clauses of the Securities Act or the Exchange Act, both of which preserve rights and remedies existing at state law.

The court further held that NSMIA did not impliedly preempt state common law fraud claims because Congress did not evidence its intent to displace state causes of action for fraud. Defendants could not overcome the presumption that areas of law traditionally within the primacy of the states would remain with them absent a clear and manifest intent by Congress to preempt state action. Finally, the Court found that state fraud claims did not conflict with the regulatory mandates of NSMIA. The court concluded: “the purpose underlying state common law fraud actions – to deter fraudulent practices – is consistent with federal securities law, including the NSMIA, as both seek to deter fraud.”

[2]

Capital Research and Management Co. v. Brown

In Capital Research and Mgmt. Co. v. Brown (the “American Funds Litigation”), LASC Case No. BC330770 (Mar. 24, 2005),

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California Attorney General Bill Lockyer alleged that Capital Research and Management Company, an investment adviser, and American Funds Distributors, Inc., a registered broker-dealer and wholesale distributor, failed to disclose to purchasers and prospective purchases of American Funds’ shares shelf-space agreements into which the parties entered for the distribution of the American Funds. The California Attorney General asserted that the undisclosed agreements violated the California Corporations Code and sought injunctions enjoining defendants from engaging in any conduct in violation of the Code.

Defendants demurred to the enforcement complaint, contending NSMIA expressly or impliedly preempts any action challenging the adequacy of the American Funds’ disclosures. The Superior Court found in favor of American Funds, and ruled that NSMIA impliedly preempted the California Attorney General from regulating the content of mutual fund prospectus disclosures. Permitting states to regulate prospectus disclosures “would place Investment Company Act Funds in the untenable position of having to seek review of their offering statements by regulators in all states in which their shares are sold. Such would be the antithesis of the national regulation of securities offerings contemplated by NSMIA.” The court also concluded that the California action would impose disclosure requirements beyond those deemed necessary by the SEC in the current registration form. California’s action thus impeded national uniformity and exceeded federal regulatory requirements, both of which militated in favor of preemption.

On January 26, 2007, the California Court of Appeals reversed, holding that NSMIA’s savings clause is sufficiently broad to permit the California Attorney General to pursue injunctive relief and penalties against a covered security’s investment adviser and wholesale broker-dealer who allegedly made inaccurate or inadequate representations to purchasers. Capital Research and Mgmt. Co. v. Brown, No. B189249 (Cal. Ct. App., 2nd App. Div. Jan. 26, 2007) (“Slip Op.”). The Appeals Court reasoned that NSMIA barred the Attorney General from suing registered investment companies to force them to change their disclosure documents, but did not bar the Attorney General from suing an investment adviser or broker-dealer to force them to disclose their shelf-space agreements. Slip Op. at 11. In support of this analysis, the Appeals Court observed that the

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adviser and distributor’s disclosures were false and misleading because the practice of entering shelf-space agreements was intentionally concealed from investors and also from the American Funds’ directors. Id. The Appeals Court concluded that its ruling was required in order to give effect to a second Congressional purpose in enacting NSMIA – “to encourage the continued participation of the states in preventing fraud in securities transactions, particularly with regard to broker-dealers.” Id. at 15.

Capital Research and Management Company entered into a settlement agreement with the California Attorney General on February 15, 2008, ending the three-year-old litigation. The Attorney General acknowledged the voluntary measures Capital Research took to alleviate the State’s concerns, including “waiv[ing] 10 percent of its management fees, . . . improv[ing] its corporate governance practices[,] . . . [and] eliminat[ing] the practice of directed brokerage . . . .” Press Release, Office of the Attorney General, Brown and American Funds End Litigation (Feb. 15, 2008), available at http://agica.gov/newsalerts/release.php?id=1524. The settlement agreement also includes commitments by American Funds to enhance prospectus disclosures of revenue-sharing policies, encourage shareholders to opt out of paper in favor of electronic delivery (at a projected savings of up to $20 million), and to provide greater supervision and oversight of managers involved in revenue-sharing activities.

[3]

People v. Edward D. Jones & Co., L.P.

In People v. Edward D. Jones & Co., L.P., Case No. 04AS05097 (Sacramento Superior Court, May 25, 2006), California Attorney General Lockyer alleged that a broker-dealer that received directed brokerage and cash payments from an investment adviser violated disclosure obligations imposed by the California Corporations Code by failing to disclose its arrangements to its customers. As with the American Funds Litigation, the Superior Court found that NSMIA preempted state regulation of mutual fund offering documents, and granted defendants’ demurrer. The court noted, “assertion of California’s authority in this manner conflicts with the federal regulation of information provided in mutual fund prospectuses and hence is preempted by such.”

Lockyer disputed the court’s conclusion that he was seeking to regulate prospectus disclosures, and appealed the order of

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dismissal. The North American Securities Administrators Association filed an Amicus Brief in support of the California Attorney General. The Court of Appeals, Third District, reversed, holding that the California action was not preempted by NSMIA. The People of CA v. Edward Jones, 65 Cal. Rptr. 3d 130, 139 (App. Dep’t Super. Ct., Aug. 24, 2007). The court stated NSMIA includes an exception (“[e]xcept as otherwise provided in this action” (15 U.S.C. § 77r(a)(2)(A))) which preserves state authority to bring enforcement actions for fraud. The court determined that the plain meaning of NSMIA permitted California to proceed with the action and, in light of the unambiguous statutory language, a review of legislative history was unnecessary.

On September 2, 2008, without admitting or denying the allegations, Jones settled, agreeing to pay $7.5 million, which included the Attorney General’s fees, and a civil penalty of $4.8 million.