Let’s Make Investment Advisers Accountable!

1973 ◽  
Vol 29 (1) ◽  
pp. 19-22
Author(s):  
Harry L. Nelson
Keyword(s):  
Investment Advisers

Fiduciary Principles in Investment Advice

2019 ◽  
pp. 144-165
Author(s):  
Arthur B. Laby
Keyword(s):  
Fiduciary Duty ◽  
Duty Of Care ◽  
Complex Nature ◽  
State Law ◽  
Fiduciary Duties ◽  
Legal Obligations ◽  
Standards Of Conduct ◽  
Investment Advisers ◽  
Definition Of ◽  
Investment Advice

This chapter examines the fiduciary principles governing investment advice. Fiduciary principles in investment advice are both straightforward and complex. They are straightforward because most investment advisers are considered fiduciaries and subject to strict fiduciary duties under federal and state law. Their complex nature arises from the fact that many individuals and firms provide investment advice but are not deemed investment advisers and, therefore, are not subject to a fiduciary obligation. This chapter first explains whether and when an advisory relationship gives rise to fiduciary duties by focusing on both federal and state law, as well as the individuals and firms that typically provide investment advice. In particular, it looks at certain persons and entities excluded from the definition of investment adviser and thus not subject to the Investment Advisers Act of 1940, namely broker-dealers, banks, and family offices as well as accountants, lawyers, teachers, and engineers. The chapter also considers fiduciaries under ERISA, the Investment Company Act, and the Commodity Exchange Act before discussing the fiduciary duty of loyalty and how it is expressed and applied in investment advisory relationships; the fiduciary duty of care and how it differs from other standards of conduct, such as a duty of suitability; and other legal obligations imposed on investment advisers and how those obligations relate to an adviser’s fiduciary duty. Finally, the mandatory or default terms with regard to an investment adviser’s fiduciary duties are explored, along with remedies available for breach of fiduciary duty.

OCIE issues risk alert on the most frequently identified advisory fee and expense compliance issues

2018 ◽  
Vol 19 (4) ◽  
pp. 1-3
Author(s):  
Robert Van Grover
Keyword(s):  
Design Methodology ◽  
Best Practice ◽  
Investment Management ◽  
Content Type ◽  
Informed Decisions ◽  
Policies And Procedures ◽  
The Us ◽  
Investment Advisers ◽  
Practical Implications

Purpose To summarize and interpret a Risk Alert issued on April 12, 2018 by the US SEC’s Office of Compliance Inspections and Examinations (OCIE) on the most frequent advisory fee and expense compliance issues identified in recent examinations of investment advisers. Design/methodology/approach Summarizes deficiencies identified by the OCIE staff pertaining to advisory fees and expenses in the following categories: fee billing based on incorrect account valuations, billing fees in advance or with improper frequency, applying incorrect fee rates, omitting rebates and applying discounts incorrectly, disclosure issues involving advisory fees, and adviser expense misallocations. Findings In the Risk Alert, OCIE staff emphasized the importance of disclosures regarding advisory fees and expenses to the ability of clients to make informed decisions, including whether or not to engage or retain an adviser. Practical implications In light of the issues identified in the Risk Alert, advisers should assess the accuracy of disclosures and adequacy of policies and procedures regarding advisory fee billing and expenses. As a matter of best practice, advisers should implement periodic forensic reviews of billing practices to identify and correct issues relating to fee billing and expenses. Originality/value Expert guidance from experienced investment management lawyer.

SEC adopts regulation systems compliance and integrity

2015 ◽  
Vol 16 (3) ◽  
pp. 4-14 ◽  
Author(s):  
James Burns ◽  
Georgia Bullitt ◽  
Howard Kramer ◽  
Jack Habert ◽  
James Doench
Keyword(s):  
Cyber Security ◽  
Financial Services ◽  
Periodic Review ◽  
Content Type ◽  
Security Issues ◽  
Market Participants ◽  
Investment Companies ◽  
Policies And Procedures ◽  
Investment Advisers

Purpose – To explain the requirements of Regulation Systems Compliance and Integrity (“Regulation SCI”) and the new responsibilities of organizations defined as “SCI entities.” Design/methodology/approach – Explains the purpose of Regulation SCI, the responsibilities of SCI entities, systems covered by the rules (“SCI systems”), and specific obligations of SCI entities, including the establishment and periodic review of policies and procedures, compliance with the Exchange Act, designation of “responsible SCI personnel,” appropriate corrective action in response to “SCI events,” notification of systems changes, annual “SCI reviews,” business continuity and disaster recovery testing, and recordkeeping and filing. Discusses future implications for SCI Entities and other market participants. Findings – Regulation SCI launches a broad and extensive overlay of rules and guidance to address systems capacity and integrity issues that have increasingly affected the securities markets. The adoption of this regulation suggests that there will continue to be increased scrutiny by the SEC, FINRA and other regulators of the automated systems and related policies and procedures of all market participants. Practical implications – SCI entities will need to devote considerable attention and resources not just to prevent incidents where possible, but also to establish systems for ensuring thorough compliance and well-documented and reasonable follow-up actions where necessary. All market professionals – including broker-dealers, investment advisers, pension funds and investment companies – should study the new regulation and consider adopting appropriate policies and procedures to address operating as well as cyber security issues with respect to their own critical operating technology. Originality/value – Practical guidance from experienced financial services lawyers.

scholarly journals How To Invest Your IRAs In Profitable Real Estate IRAs

2011 ◽  
Vol 2 (11) ◽  
Author(s):  
Raj Kiani ◽  
M.A. Sangeladji
Keyword(s):  
Real Estate ◽  
Interest Rates ◽  
Retirement Savings ◽  
Sharp Decline ◽  
The Public ◽  
Individual Retirement Accounts ◽  
The Past ◽  
Retirement Accounts ◽  
Roth Ira ◽  
Investment Advisers

Since the inception of Individual Retirement Accounts (IRAs) in 1974, the public has been advised strongly by bankers, accountants (CPAs), and investment advisors that the best strategy for IRA holdings is investment in stocks or bonds.  Unfortunately, with the sharp decline in the market value of stocks and the bottoming out of interest rates in the past years, most IRA funds have performed very poorly and investors have witnessed how drastically their retirement savings lost their accumulated value.  During these years, apparently, not many investment advisers have bothered to consider other alternative ways for investing accumulated IRAs and pension funds.  There is, in fact, another viable investment alternative that offers both safety and a considerable growth rate.  That is real estate IRAs.  The purpose of this paper is to explain (a) why the traditional and Roth IRA should be invested in real estate, b) the steps involved in establishing a sound real estate IRA, (c) the restrictions and the dos and don’ts of investing in a real estate IRA, and (d) the tax and penalty consequences of incorrect investment in a real estate IRA.

SEC Enforcement: Self-Reporting Share Class Selection Disclosure Initiative

2018 ◽  
Vol 19 (2) ◽  
pp. 16-18
Author(s):  
Elaine Greenberg
Keyword(s):  
Mutual Fund ◽  
Conflicts Of Interest ◽  
Self Report ◽  
Complex Nature ◽  
Collateral Consequences ◽  
Content Type ◽  
Applicable Law ◽  
Enforcement Action ◽  
Business Operations ◽  
Investment Advisers

Purpose This paper aims to explain the U.S. Securities and Exchange Commission’s (SEC’s) recent Share Class Selection Disclosure (SCSD) Initiative, which offers potentially favorable settlement terms to investment advisers who self-report to the SEC’s Enforcement Division violations of the federal securities laws relating to certain mutual fund share class selection issues and to discuss factors for consideration by investment advisers regarding their possible participation in this initiative. Design/methodology/approach This paper discusses the conditions and terms of the SEC’s SCSD Initiative, the SEC’s focus on conflicts of interest associated with mutual fund share class selection, the applicable law, the complex nature of these issues and the factors that investment advisers should consider in determining whether to participate in the initiative. Findings The assessment of the facts and the evaluation and analysis of the issues may be both time-consuming and complex. Firms need to carefully consider whether the potential benefits of self-reporting outweigh any possible downsides, including the potential collateral consequences that an SEC enforcement action may have on their business operations. Originality/value This paper contains valuable information about a recent SEC Enforcement Initiative and provides practical guidance from experienced securities counsel.

Better ‘Best Execution’

2018 ◽  
pp. 165-196
Author(s):  
Christopher Nagy ◽  
Tyler Gellasch
Keyword(s):  
Securities And Exchange Commission ◽  
Client Expectations ◽  
The Us ◽  
Best Execution ◽  
Public Disclosures ◽  
Investment Advisers ◽  
The Impact ◽  
Disclosure Obligations

This chapter reviews best execution and new disclosure obligations in relation to investment advisers as well as brokers; it also provides an overview of the strategies they use to meet their rapidly changing obligations. Investment advisers and brokers are confronted with increasingly stringent regulatory and client expectations to fulfil their duty of best execution. Regulators in Europe have become active in developing formal best execution obligations, but the US Securities and Exchange Commission (SEC) is lagging behind in providing a clear framework for best execution. This chapter first outlines the analogous best execution obligation for broker-dealers and explores the contours of the SEC’s expectations for investment advisers. It then assesses the impact of new European best execution obligations and the role of public disclosures in aiding the fulfilment of best execution duties. It concludes by examining various strategies used by investment advisers to fulfil their evolving duties.

Conclusion

2020 ◽  
pp. 335-356
Author(s):  
Arthur E. Wilmarth Jr.
Keyword(s):  
Conflicts Of Interest ◽  
Banking System ◽  
Financial System ◽  
Safety Net ◽  
Shadow Banking ◽  
Financial Conglomerates ◽  
Shadow Banks ◽  
Regulatory Systems ◽  
Shadow Banking System ◽  
Investment Advisers

A new Glass-Steagall Act would break up universal banks and end the conflicts of interest that prevent universal banks from acting as objective lenders and impartial investment advisers. It would produce a more stable and resilient financial system by reestablishing structural buffers to prevent contagion between the banking system and other financial sectors. It would improve market discipline by preventing banks from transferring their safety net subsidies to affiliates engaged in capital markets activities. It would shrink the shadow banking system by prohibiting nonbanks from issuing short-term financial claims that function as deposit substitutes. It would remove the dangerous influence that large financial conglomerates exercise over our political and regulatory systems. It would end the current situation in which our financial system and our economy are held hostage to the survival of universal banks and large shadow banks. It would restore our banking system and financial markets to their proper roles as servants—not masters—of nonfinancial business firms and consumers.

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