More On Legal & Compliancefrom The Advisor's Professional Library
- Client Communication and Miscommunication RIA policies and procedures must specify what type of communications should be retained. The safest course of action is for RIAs to retain all communicationsto clients, from clients, and about client accounts. To comply with fiduciary obligations, communications must be thorough and not mislead.
- 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.
The SEC should consider alternative criteria for its accredited investor standard, including the use of more liquid investments inside any Reg D private offerings, or require the guidance of a registered investment advisor, according to a just-released report by the Government Accountability Office.
In addition to research with regulators and associations here and abroad, GAO surveyed 27 "market participants" in its study — including RIAs, broker-dealers, securities attorneys and accredited investors themselves — to determine what would be most effective in protecting investors while also encouraging capital formation in private vehicles. Among the options presented to study participants but rejected as unworkable by the GAO were a "self-certification investor designation," an "investor sophistication test" and an investor education requirement.
However, what would be effective, the study found, would be the use of an RIA, suggesting that an accredited investor "who wishes to invest in a private placement offer" be required "to use the services of a registered investment adviser to manage their investment accounts."
The report was delivered yesterday to the Senate Banking, Housing and Urban Affairs Committee and its chairman, Tim Johnson (D-S.D.), and the House Financial services Committee and its chairman, Jeb Hensarling (R-Texas).
As it stands now, to meet the accredited investor standard the SEC requires an investor to have an annual income of more than $200,000 ($300,000 for a married couple) or a net worth of more than $1 million, excluding the investor's primary residence. The thresholds were set in the 1980s and 2010, but the Dodd-Frank Act mandated that GAO study the criteria for qualifying individual investors as accredited.
GAO analysis of federal data on household net worth showed that adjusting the $1 million minimum threshold to approximately $2.3 million, to account for inflation, would decrease the number of households qualifying as accredited from approximately 8.5 million to 3.7 million.
Beginning in 2014, GAO argued that the SEC must review the accredited investor definition every four years to determine whether it should be adjusted, and GAO says its report provides “a reasonable starting point for SEC’s review.”
Such a review by the SEC will be particularly important now, as the agency recently lifted the ban on hedge fund advertising under Rule 506 of Reg D, allowing hedge funds and private equity firms to market their offerings to a wide swath of such accredited investors.
While the market participants in the survey cited net worth as the most important criterion, GAO said among the “financial resources criteria,” market participants with whom GAO spoke most often identified a liquid investments requirement—a minimum dollar amount of investments in assets that can be easily sold, are marketable and the value of which can be verified—as most important for balancing investor protection and capital formation.
The report states that the SEC agreed with GAO’s recommendation.
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