SEC to ‘Customize’ Sanctions

Effort meant to respond to criticism that its enforcement actions are too broad

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  • 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 RIA’s failure to stay within the scope of the Section 28(e) safe harbor may violate the advisor’s 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.
  • Agency and Principal Transactions In passing Section 206(3) of the Investment Advisers Act, Congress recognized that principal and agency transactions can be harmful to clients. Such transactions create the opportunity for RIAs to engage in self-dealing.

Even the SEC is hopping on the “customization” bandwagon—tailoring sanctions just for you.

Responding to criticism that it’s too lax in its enforcement and its bans are too broad, the commission is “experimenting with punishments that more closely fit the wrongdoing at issue in a bid to give its enforcement cases more bite,” according to Reuters.

Giving advice to pension funds or profiting from presenting investment seminars are examples of the type of behaviors it’s looking at.

As the news service notes, critics of the SEC's typical broad prohibitions say they are ineffective and not well enforced. Customized injunctions could also be a more precise tool than the “blunt instrument” of barring an individual from being a company officer or director.

“In the past year SEC lawyers have slowly started seeking injunctions that bar defendants from specific types of conduct, even if that conduct is itself legal,” Reuters reports. “They are relying on authority derived from the 2002 Sarbanes-Oxley investor protection law that makes explicit courts' authority to follow through on the SEC's recommended injunctions.”

The news comes as Mary Jo White, President Barack Obama’s pick to be the next chairwoman of the SEC, testified before the Senate Banking Committee in her confirmation hearing.

In her testimony, White said that one of her “focus” areas as chairwoman would be regulating the conduct of broker-dealers and investment advisors when giving retail investment advice.

Stating that the Dodd-Frank and JOBS Acts have both placed a “daunting” task on the agency, White told lawmakers that once at the agency she intended “to personally take charge in assessing” which rules would be priorities.

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