3 SEC Charges | Marketing Rule, Recordkeeping, and Custody Rule
SEC RELEASES
Introduction
September 3rd, 2024 was a busy day for SEC Enforcement.
There were Recordkeeping failures amongst six Credit Rating Agencies that saw more than $49 million in fines.
Violations of the Custody Rule caused a Firm to be charged $65,000, and a Firm and its CEO were charged for Marketing Rule and Registration violations.
Vigilant has covered key takeaways below of the three (3) separate SEC Charges that occurred on September 3rd, 2024.
What Happened?
- Marketing Rule Violations
- This Firm advertised on their website that they had “691% Enterprise Value Growth”, with a footnote stating that ““Enterprise Value of our portfolio has gone up by 691% in absolute terms and 82% on a compounded average basis from March 2018 to December 2022.”
- No documentation was maintained that could show how this performance calculation took place or provide substantiation.
- No indication or disclosure was made whether performance was gross or net, or if it was a composite or a subset of investments, which would be materially relevant.
- In advertising decks, the Firm used the performance of previous Firms that the CEO was involved with, even though his role did not involve investment advice.
- The Firm was also charged for other failures including recordkeeping, failing to register as Investment Advisers, and code of ethics failures.
- This Firm advertised on their website that they had “691% Enterprise Value Growth”, with a footnote stating that ““Enterprise Value of our portfolio has gone up by 691% in absolute terms and 82% on a compounded average basis from March 2018 to December 2022.”
- Recordkeeping Failures
- Six (6) Firms were charged with fines ranging from $100,000 to $20 million for the failure to maintain and preserve electronic communications.
- Firms that made significant efforts to comply and cooperate with SEC investigations saw “tangible benefits”, according to the Deputy Director of Enforcement.
- SEC investigations found pervasive use of text messaging and other messaging apps for business discussions.
- Custody and Liability Disclaimer Violations
- An RIA failed to timely distribute audited financial statements to their investors in seven (7) instances.
- Documents were delivered past deadline in numbers ranging from 333 to 1,064 days.
- Improper hedge clauses were in use from at least 2019, representing that the Firm would not be liable to clients for “any action or inaction” except for “gross negligence” or willful malfeasance” and violations of law.
- These statements could potentially mislead clients into not exercising their non-waivable legal rights.
Vigilant’s Conclusion
Some investigations require little discretion on the part of SEC investigators. Failing to meet deadlines for audited financials is a violation of the Custody Rule, and will likely result in enforcement action.
In a similar fashion, the SEC has made it clear over and over again that failing to reel in off-channel communications is planning for compliance failure.
However, despite there being instances of Marketing Rule Compliance as a more interpretive act, there are also cut and dry mistakes that will be easy targets for SEC enforcement. Advertising gross performance without net performance, failing to substantiate claims about performance and investment strategies, and providing misleading data to investors are actions that are likely to catch the SEC’s attention.
If you are in need of compliance support or need assistance implementing new rules and regulations, contact Vigilant to learn more about how we can help.