More On Legal & Compliancefrom The Advisor's Professional Library
- 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.
- Dealings With Qualified Clients and Accredited Investors Depending upon an RIAs business model and investment strategies, it may be important to identify “qualified clients” and “accredited investors.” The Dodd-Frank Act authorized the SEC to change which clients are defined by those terms.
Washington insiders are betting that the House Financial Services Committee will introduce legislation calling for a self-regulatory organization (SRO) for advisors soon after the committee's subcommittee on capital markets holds a Sept. 13 hearing on the issue.
"It's very likely we can expect SRO legislation to be introduced shortly after [the hearing] on the House side," says Duane Thompson, senior policy analyst for fi360. "If an SRO bill is introduced in connection with the hearing," Thompson says, "the first question is whether it will be limited to broker-dealers/advisors, or include independent advisors as well." The second, more important, question, he continues, "is not whether it will be passed by the House, but whether the Senate will take it up this year."
The Sept. 13 hearing will also examine the regulation of investment advisors and broker-dealers, while the full committee plans to hold a hearing on Sept. 15 on the need to reform the Securities and Exchange Commission (SEC).
The capital markets subcommittee, chaired by Rep. Scott Garrett, R-N.J., (left) will examine the studies mandated by Dodd-Frank on the effectiveness of standards of care applicable to broker-dealers and investment advisors, and on the need for enhanced examination and enforcement resources for advisors—i.e. the need for a self-regulatory organization (SRO) for advisors.
Garrett has also introduced the SEC Regulatory Accountability Act (H.R. 2308), which would require the Securities and Exchange Commission to perform enhanced cost/benefit analyses on its rules.
The full committee’s chairman, Rep. Spencer Bachus, R-Ala., is also pushing legislation called the SEC Modernization Act, which would significantly alter the SEC’s structure. The full committee postponed a hearing it was to hold in early August regarding the SEC called “Fixing the Watchdog.” That hearing has now been rescheduled to Sept. 15, and will focus on the structure and operations of the SEC.
It remains to be seen if lawmakers will delve into the fiduciary duty rule being crafted by the SEC at the hearings. But Bachus told SEC Chairman Mary Schapiro in an early August letter that the agency should hold off on writing a rule to put brokers under a fiduciary mandate, as he supports the views aired by the SEC's two Republican commissioners, Troy Paredes and former commissioner Kathleen Casey, that the commission has failed to “demonstrate that investors are being harmed by the current” fiduciary standard and that “harmonization” of advisor and broker rules would “enhance” investor protection.
The SEC should not be pressing ahead on the fiduciary issue, Bachus said, because it has yet to provide Congress with “empirical data and economic analysis to justify” fiduciary or harmonization rules. Any action taken on these two fronts, Bachus said, “is premature” until the SEC answers these questions.