More On Legal & Compliancefrom The Advisor's Professional Library
- Scope of the Fiduciary Duty Owed by Investment Advisors A fiduciary obligation goes beyond the suitability standard typically owed by registered representatives of broker-dealer firms to clients. The relationship is built on the premise that the advisor will always do the right thing for the person or entity receiving advice.
- Updating Form ADV and Form U4 When it comes to disclosure on Form ADV, RIAs should assume information would be material to investors. When in doubt, RIAs should disclose information rather than arguing later with securities regulators that it was not material.
The long anticipated Securities and Exchange Commission's Inspector General report about why the Commission failed to detect the Bernie Madoff Ponzi scheme was released September 2 and states that the SEC received "more than ample information in the form of detailed and substantive complaints over the years to warrant a thorough and comprehensive examination and/or investigation" of Bernie Madoff and his company Bernard L. Madoff Investment Securities, LLC, for operating a Ponzi scheme.
David Kotz, the SEC's Inspector General, states in the report's Executive Summary that his investigation failed to find any evidence that any SEC personnel that examined or investigated Bernie Madoff's firm had any financial or other inappropriate connection with Madoff or his family "that influenced the conduct of their examination or investigatory work." That being said, however, despite "three examinations and two investigations being conducted" of Madoff's firm, Kotz said that "a thorough and competent investigation or examination was never performed." Kotz further says that between June 1992 and December 2008 when Madoff confessed, "The SEC received six substantive complaints that raised significant red flags concerning Madoff's hedge fund operations and should have led to questions about whether Madoff was actually engaged in trading." Kotz also says that the SEC was also aware of two articles from reputable publications written in 2001 regarding Madoff's investment operations that "questioned Madoff's unusually consistent returns."
Kotz goes on to detail in his 22-page Executive Summary, which is available here, how the SEC failed to follow up, and ignored, tips about Madoff's fraud. In closing his report, Kotz said that "despite numerous credible and detailed complaints, the SEC never properly examined or investigated Madoff's trading and never took the necessary, but basic, steps to determine if Madoff was operating a Ponzi scheme. Had these efforts been made with appropriate follow-up at any time beginning in June of 1992 until December 2008, the SEC could have uncovered the Ponzi scheme well before Madoff confessed."