More On Legal & Compliancefrom The Advisor's Professional Library
- U.S. Securities and Exchange Commission Information This information sheet contains general information about certain provisions of the Investment Advisers Act of 1940 and selected rules under the Advisers Act. It also provides information about the resources available from the SEC to help advisors understand and comply with these laws and rules.
- Advertising Advisor Services and Credentials Section 206 of the Investment Advisers Act contains the anti-fraud provision of the statute and ensures that RIAs advertising and marketing practices are consistent with the fiduciary duty owed to clients and prospective clients.
In a low-interest-rate world, high-yield investments offering principal protection are enticing to investors. But the complexity of some high-end investment products has the Financial Industry Regulatory Authority (FINRA) and Securities and Exchange Commission’s (SEC) warning investors to look before they leap.
In an alert titled "Structured Notes with Principal Protection: Note the Terms of Your Investment," the regulators warn investors that these structured products may not be what they seem. Although they are marketed under a variety of names with a “principal protection” component—e.g. “absolute return” and “minimum return”—the true extent of their safety is never obvious at first glance. Investors need to read the fine print to determine whether they are suitable for their investing needs and risk tolerance.
Structured notes with principal protection combine the “guaranteed” return of a zero-coupon bond with a derivative component carrying greater profit potential. The derivative component of the note is linked to an index, benchmark or an underlying asset. If the value of the underlying asset increases over the term of the note, the investor may reap a greater return than they would have with just a bond; but that scenario is by no means assured.
The first confusing feature of these notes is that purchase of a structured note with principal protection doesn’t entitle the purchaser to ownership of the assets on which payout of the structured note is based. As a result, the note’s principal guarantee depends on the financial security of the issuer. If the issuer goes bankrupt, the investor can lose 100% of his or her investment.
Investors also need to understand that the “guarantee” provided by structured notes with principal protection may not be a 100% guarantee. These structured products can pay back some, or even all, of the investor’s principal if the investor holds the product to maturity—and the principal return function works regardless of whether the assets underlying the product decline in value. But buyer beware: The principal protection function of the notes often doesn’t protect 100% of the investor’s principal and may protect as little as 10%.
Another often misunderstood aspect of structured notes is the method under which returns are calculated. Some notes pay periodic interest payments, others don’t. And the market-linked gains component of the notes can vary wildly between products. For example, some compare an index at two distinct dates and others may compare the highest value of the index during the term of the note with its value at the start of the term. Still others (the shark-fin variety) allow full participation in gains up to a certain level and then severely curtail participation if the index rises above that level.
The alert cites a sample note under which, if the index underlying the note rises 40% during the term of the note, the investor will get 140% of principal at maturity. But if the underlying index instead rises 41%, the investor will receive only 110% of principal at maturity. Complex terms may make it difficult for retail investors to get a good handle on the performance of the notes.
Lack of liquidity is another concern raised in the alert. Structured notes often include an early redemption penalty or “lock up period” during which investors are restricted from withdrawing funds from the note. Although there is a secondary market for some structured notes, low demand may result in investors having to sell their notes at a severe discount.
Another aspect of the notes that investors should be aware of is any right that the issuer has to call or redeem the note prior to maturity. If interest rates fall or it is otherwise in the issuer’s best interest, the issuer may have the option of cashing out the note. And finally, the alert notes the challenge of determining the fees charged by issuers. Fees—taking the form of a spread between the value of the note and the price charged to investors—are often left unstated.
Because even the most sophisticated of investors may misunderstand the terms of these notes, the SEC and FINRA recommend that investors consult with investment professionals before purchasing a structured note with principal protection.
The regulators also note that the features offered by the notes can be cobbled together by investors and their advisors without the added fees built into the products by their issuers, which should give advisors pause when making a suitability determination for their clients.