More On Legal & Compliancefrom The Advisor's Professional Library
- Client Commission Practices and Soft Dollars RIAs should always evaluate whether the products and services they receive from broker-dealers are appropriate. The SEC suggested that an RIAs failure to stay within the scope of the Section 28(e) safe harbor may violate the advisors fiduciary duty to clients, so RIAs must evaluate their soft dollar relationships on a regular basis to ensure they are disclosed properly and that they do not negatively impact the best execution of clients transactions.
- Differences Between State and SEC Regulation of Investment Advisors States may impose licensing or registration requirements on IARs doing business in their jurisdiction, even if the IAR works for an SEC-registered firm. States may investigate and prosecute fraud by any IAR in their jurisdiction, even if the individual works for an SEC-registered firm.
Eileen Rominger, director of the Securities and Exchange Commission’s Division of Investment Management, told a Senate panel on Wednesday that because of the growth and complexity of exchange traded funds, the commission is reviewing the adequacy of investor disclosure about ETFs, their liquidity and whether they contribute to market volatility.
At a hearing held by Sen. Jack Reed, D-R.I., chairman of the Senate Banking Subcommittee on Securities, Insurance and Investment, Rominger said several divisions and offices at the SEC are “gathering and analyzing detailed information” about specific exchange-traded products.
Commission staff, she said, is assessing the adequacy of “investor disclosure, liquidity levels and transparency of underlying instruments in which ETPs invest, fair valuations, efficiency in the arbitrage process and the relationship between market volatility and ETPs.” Because of the “growth and innovation” in exchange traded products, Rominger said, “the commission has been actively following, and continues to engage in the analysis of, these products."
But Scott Burns, director of ETF Research at Morningstar, told AdvisorOne on Wednesday that as to whether ETFs affect market volatility, “if the SEC is looking at the same data we are, they won’t find anything.” The majority of the panelists at the hearing agreed that ETFs did not contribute to market volatility, Burns noted.
Eric Noll, executive vice president Transaction Services at NASDAQ OMX, who testified at the hearing, said, “We are seeing no signs that ETFs add to volatility in the market. [There are] other factors in the market that far overwhelm any effect ETFs have” on market volatility.
Reed stated during his opening remarks that ETFs, which now account for about $1 trillion in assets, “are particularly attractive to some investors because you can bet long or short–and you can leverage your bet. And you can hop in and out within the trading day to lock in gains, just as with stocks.”
More and more mainstream investors are purchasing ETFs, Reed said, with about 50% of ETF assets in the United States now being held by retail investors.
However, critics of ETFs, Reed continued, have labeled them as “new weapons of mass destruction that are turning the market into ‘a casino on steroids.’” Others, he said, “believe they are a more efficient, modern, and tax advantaged method of investing.”
Additional innovation in ETFs, Reed said, “has resulted in products that can magnify returns of various indexes by embedding derivatives and other forms of leverage. Theoretically, a leveraged ETF with $1 from investors and $1 from leverage would return 2% for each one-percent movement in the underlying index. Other ETFs, called inverse ETFs,
Rominger said in her testimony that observations and feedback from market participants suggest that “some investors may not fully understand the daily performance features of leveraged, inverse and inverse leveraged ETFs, and the consequences of holding the shares of such ETFs over extended periods.”
To help address this issue, Rominger noted the joint guidance issued by the SEC and FINRA to alert investors and other market participants of “the risks of holding such ETF shares for a period of more than one day.”
Rominger also said that in March 2010 SEC staff determined to defer consideration of exemptive requests for those products that fall under the 1940 Act that would permit the launch of new ETFs making significant investments in derivatives.
“Because leveraged and inverse leveraged ETFs often make significant use of derivatives, deferring consideration of exemptive requests related to derivatives necessarily deferred the issuance of new orders permitting leveraged and inverse ETFs that would be subject to the 1940 Act,” Rominger said.
The SEC in August also issued a concept release seeking public comment on funds’ use of derivatives and on the current regulatory regime under the 1940 Act as it applies to funds’ use of derivatives.
“Although the [SEC] staff recognizes the competitive impact of the decision to defer the consideration of exemptive relief, the staff is committed to the commission’s mission to protect investors,” Rominger said. “Accordingly, the staff has determined not to issue any additional exemptive relief for ETFs seeking to make significant use of derivatives pending the broader review of the use of derivatives by all funds.”
The comment period for the concept release ends on Nov. 7.