How the SEC Stacks the Deck

Low burden of proof requirements threaten RIA livelihoods

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  • Conducting Due Diligence of Sub-Advisors and Third-Party Advisors Engaging in due-diligence of sub-advisors isn’t just a recommended best practice— it is part of the fiduciary obligation to a client. An RIA should be extremely reluctant to enter a relationship with a sub-advisor who claims the firm’s strategy is proprietary.
  • 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.

Are RIAs and other financial professionals guilty until proven innocent? Not quite, but the burden of proof on the part of the SEC against those accused is so low it might appear that way. It could easily result in a lifetime bar from the advisors' main source of income.

Russell Ryan, a former assistant director of the SEC's division of enforcement, exposes the mark regulators must reach to win their case. In a Wall Street Journal op-ed on Monday, Ryan argues the SEC can impose quasi-criminal penalties based on the mere “preponderance of evidence.”

Using the trial of ex-Goldman Sachs vice president Fabrice Tourre, set to begin this week, as a jumping off point, he employs a sports metaphor to indicate just what Tourre will face.

“Envision a one-possession football game with the government team receiving the kickoff,” Ryan writes. “Beyond reasonable doubt requires the government to score a touchdown to win; clear and convincing evidence requires a field goal; and preponderance of evidence requires advancing the ball at least an inch past the 50-yard line.”

It’s the last that the SEC must demonstrate in the Tourre case, with which Ryan takes issue.

“Even in civil cases, however, charges of fraud are often subjected to an intermediate standard that requires proof by ‘clear and convincing evidence.’ Oddly enough the SEC usually isn't held to this standard either, even when it accuses people of fraud.”

Why does the SEC have such a negligible burden of proof?

Once a “sleepy regulator” with relatively little power to punish wrongdoers,” he explains, Congress has now transformed (or is attempting to transform) the agency into an “aggressive punisher.”

Ryan concludes with what he calls “a modest proposal.”

“When a federal law-enforcement agency sets out to punish a private citizen or business based on accusations of fraud or similar wrongdoing, it should have to prove its case by more than just a preponderance of the evidence. While proof beyond reasonable doubt may be too high a hurdle in nominally civil cases that can't result in incarceration, proof by clear and convincing evidence seems the least that due process should demand.”

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Check out Former SEC Compliance Chief Tells White: Stop Suing Compliance Officers on ThinkAdvisor.

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