Conflicts of Interest | cryptocurrency | Form CRS | Municipal Advisors | Regulation Best Interest | Regulatory Deadlines | Seniors and Vulnerable Investors

Fee-Based Annuities Get a Boost, More Resources on Reg BI and Form CRS, States get Tough on Crypto Scams, SEC Speaks on Proxy Voting, Gets Tough to Protect Vulnerable Adults and Drops the Other Shoe on Revenue Sharing: Regulatory Update for September 2019

For Investment Advisers:  IRS and SEC Actions

IRS Ruling Allows Advisers to be Paid out of Fee-Based Annuities. Nationwide and a few other insurers, including Lincoln Financial and Great American Life, have received private letter rulings from the Internal Revenue Service that allow advisory fees to be paid out of non-qualified annuities without being taxed as a distribution.  This is a big win for advisers who want to offer fee-based annuities to their clients.  By way of background, non-qualified annuities are purchased outside of a retirement or other tax-advantaged account.  Qualified annuities are purchased in retirement accounts, such as a 401(k) plan or an IRA.  A fee-based annuity, whether variable or fixed, charges an on-going asset-based fee instead of a commission.  Insurers created this product to be sold by registered investment advisers.

The big stumbling block for advisers wanting to offer non-qualified annuities was the expense.  Deducting the advisory fee from a non-qualified annuity was considered a distribution, creating a taxable event for the client.  Conversely, withdrawals for advisory fees from qualified annuities are considered an expense of the taxpayer’s financial plan and are not taxed as a distribution.  The letter ruling changes the IRS prior position for the tax treatment of advisory fees for non-qualified annuities; now, they are considered an expense of the annuity contract.  The IRS private letter ruling requires that the advisory fees meet these conditions: the fee must be authorized by annuity owner, must be used only to pay for the management of the annuity, and cannot exceed 1.5% of the assets under management (the cash value of the annuity contract).  Although IRS private letter rulings only apply to those insurers who have received them, it is expected that insurance companies will follow Nationwide’s lead and request similar relief.  For more information about the recent IRS private rulings that allow advisers to be paid out of fee-based annuities, read this thorough and well-thought-out analysis by Michael Kitces  Contributed by Jaqueline M. Hummel, Partner and Managing Director.

At Long Last… the SEC provides Guidance on Voting Client Proxies. After ten years of discussion, the SEC has issued guidance for investment advisers on how to fulfill their proxy voting responsibilities (the “Guidance”).   Here are some highlights:

  1. Advisers are not required to accept the authority to vote client securities.
  2. Advisers and their clients can agree to limit the scope of the adviser’s proxy voting authority. The Guidance provides some examples of how to limit this authority, such as only voting on corporate events (e.g., mergers and acquisitions), or always voting as recommended by the issuer’s management.  The SEC acknowledges that in some situations, the cost of voting a proxy could exceed the benefit to the client or the vote may not have a material effect on the value of the investment.  In those cases, the adviser and client can agree not to waste resources on determining and casting a vote.
  3. Advisers should look at whether certain proxy voting issues require more detailed analysis than simply applying general proxy voting guidelines (e.g., routine matters versus non-routine).
  4. Advisers should sample the proxy votes cast as part of its annual review of compliance policies and procedures to determine whether the votes are being cast consistently with the firm’s voting policies and procedures.
  5. Advisers that hire proxy voting firms to provide voting recommendations and execute votes should test to verify that the votes were cast following the adviser’s stated policy and procedures.
  6. For certain matters where the adviser’s proxy voting policies and procedures are silent, or the matter is controversial, advisers should consider whether to institute a “higher degree of analysis” for determining how to vote in the client’s best interest.

The SEC also had a few recommendations for investment advisers when selecting proxy voting advisory firms.

  • Perform due diligence on the proxy voting firm to determine whether it has capacity and competency to adequately analyze the matters for which the investment adviser is responsible for voting;
  • Review the proxy voting firm’s process for making its recommendations, and its process for dealing with and disclosing conflicts of interest;
  • Determine whether the proxy voting firm has the resources required to handle the proxy voting process, in terms of staff, operations, and technology.

Finally, the SEC also recommended periodically reviewing the proxy voting firm’s process for obtaining the most accurate and up-to-date information on voting issues.  Contributed by Jaqueline M. Hummel, Partner and Managing Director

For Investment Advisers and Broker-Dealers

What’s New with Regulation Best Interest and Form CRS Relationship Summary? Industry participants are coming together to tackle the onerous work stemming from Reg BI and Form CRS.  This is great news as we can all benefit from each other’s experiences, insights, and yes, even mistakes.  I encourage CCO’s to join their local roundtables.  If one doesn’t exist in your area, see how you can start one!  There are many articles from industry professional associations and organizations, law firms, consulting firms, and regulators providing guidance on how to prepare for the June 30, 2020, implementation deadline.  Below are a few of our favorites:

The SEC also recently launched “Welcome to,” which contains information for investors about Regulation BI and Form CRS, including a series of videos on topics that include “Brokers and Investment Advisers: Knowing the Difference” and “Brokers and Investment Advisers: How they are Paid.”  Form CRS requires a link to this site.

Next month, we will take a detailed look at Form CRS.  Contributed by Rochelle A. Truzzi, Senior Compliance Consultant.

States Continue to Find Trouble Brewing in Crypto Markets. State and Canadian provincial securities regulators continue to pursue a coordinated cryptocurrency sweep through the North American Securities Administrators Association (“NASAA”), bringing enforcement cases and investigations against certain actors in this fledgling industry.

NASAA recently reported that its “Operation Cryptosweep” has netted, to date, over 85 enforcement actions and pursued more than 330 inquiries and investigations regarding cryptocurrency investment products.  As stated by NASAA, “[T]he task force [has] identified hundreds of ICOs in the final stages of preparation before being launched to the public. These pending ICOs were advertised and listed on ICO aggregation sites to attract investor interest.  Many have been examined … [and a] number of these investigations [have] resulted in enforcement actions.”

These enforcement actions commonly cite crypto-space actors and platforms for offering and selling unregistered or non-exempt securities, acting as unregistered broker-dealers, and committing securities fraud.  According to NASAA, Texas and New York have been especially active in this sweep with the Texas State Securities Board issuing 13 “cease and desist orders” and the New York State Attorney General’s office sending out 13 “Information Demand Letters” to virtual currency trading platforms or “exchanges” requesting information about their business practices.  The full list of enforcement actions brought in connection with “Operation Cryptosweep” can be found here. NASAA’s coordinated crypto sweep is ongoing.  Contributed by Carolyn W. Mendelson, Senior Compliance Consultant.

For Broker-Dealers:  FINRA Actions

Do You Need to Register as a Municipal Advisor?  If your firm “provides advice to or on behalf of a municipal entity or obligated person with respect to municipal financial products or the issuance of municipal securities, including advice with respect to the structure, timing, terms, and other similar matters concerning such financial products or issues; or undertakes a solicitation of a municipal entity or obligated person”, it meets the definition of a Municipal Advisor and must register or qualify for an exemption or exclusion from the definition of Municipal Advisor.  FINRA issued Regulatory Notice 19-28 to remind firms of their supervisory obligations when conducting investment-related activities with municipal clients.  If you want help conducting a review of your business activities to see if you need to register, Hardin can help.  Contributed by Rochelle A. Truzzi, Senior Compliance Consultant.

For Mutual Fund Managers:  SEC Actions

SEC Staff Issues No-Action Letter on Hiring Affiliated Sub-Advisers without Shareholder Approval. Since the mid-’90s, the SEC has regularly offered multi-manager open-end funds an exemption from requiring shareholder approval to appoint a new sub-advisor if certain conditions were met.  These conditions included that the fund must obtain shareholder approval and include disclosure in the fund’s prospectus.  Traditionally, the SEC granted this relief to unaffiliated sub-advisors only.  Over time, the staff granted relief to sub-advisors that were wholly-owned by the fund or its adviser but left sub-advisors that were only partially owned by the fund or its adviser without relief.  To close this gap, the SEC issued new exemptive relief in May of this year to the Carillion funds (“Carillion Order”).  In addition to covering partially and wholly-owned sub-advisors, the Carillion Order established a set of new conditions that differed in some respects from the original conditions.  In this August 9, 2019 no-action letter, the SEC has clarified that funds may continue to rely on previously granted exemptive relief without being required to seek an amendment to that “Prior Multi-Manager Order,” provided the fund complies with the new conditions established in the Carillion Order in their entirety.  Contributed by Cari A. Hopfensperger, Senior Compliance Consultant.

For Hedge Fund Managers:  NFA/CFTC Actions

New Dues for CPO/CTAs Engaged in Swap Activities. The NFA released Notice I-19-15 in June, reminding its members of a new annual surcharge of $1,750.  The surcharge applies to NFA Members, including CPOs and CTAs, that are currently approved or are pending approval as swap firms.  The surcharge becomes effective on January 1, 2020, and will be included on all invoices for dues of affected Member firms payable after that date.  Firms can check swap approval status on the NFA’s BASIC system, and swap-approved Member firms that are not engaged in swaps activities or are not otherwise required to be a swap-approved firm can withdraw swap approval status (and avoid this surcharge) by completing Form 7-W using NFA’s Online Registration System (ORS).  Contributed by Cari A. Hopfensperger, Senior Compliance Consultant.

Lessons Learned from NFA, SEC and FINRA Cases

Ignorance is not Bliss – NFA Takes Emergency Enforcement Action Against Walnut Creek, CA-Based CPO/CTA.  Denari Capital LLC (“Denari”) only registered as a CPO and CTA with the CFTC in May 2019. However, during NFA’s review of the Individual Applications for Denari’s co-owners (including its sole Associated Person and principal, Travis Gregory Capson or “Capson”), NFA noted that both individuals reported prior disciplinary events while employed as registered representatives with a FINRA-member firm. Specifically, FINRA had suspended and fined Denari’s co-owners for undisclosed outside business activities in the name of Denari that occurred several years earlier. At that time, the two were engaged in currency trading, opened a bank account and marketed Denari to potential investors, including clients of their then-current employer. The NFA action notes that “Given the references in the FINRA action to ‘currency trading’ and ‘investment solicitation,’ NFA commenced an investigation of Denari.”

Through a review of forex records independently received, NFA identified an account ultimately opened around the time of the undisclosed activity noted in the FINRA suspension (and several years before Denari’s CFTC registration). When questioned, Capson falsely stated that the money in the account was his personal money. Denari also violated CFTC regulations by comingling the assets of pool investors and Denari, rather than establishing a separate legal entity for the pool. Then, after comparing the amounts deposited into the comingled pool with its value at the end of June 2019, NFA uncovered that Capson and Denari had transferred over $700,000 of pool assets to Denari’s bank account. Those funds were then distributed to a combination of pool participants, promissory noteholders (mainly personal loans from ‘close friends’) and Denari and Capson themselves. A mere one month after its delinquent registration, Denari had an accounting mess on its hands with no way to accurately distinguish the NAV of the pool or the amount owed to each participant or promissory noteholder. NFA noted that Denari’s remaining liquid asset was a $200,000 bank account, which was woefully inadequate to pay back pool participants and noteholders. Further, when Capson was asked how he calculated participants’ profits, he replied, “in his head,” and then provided an internal spreadsheet based on a flawed methodology that resulted in overstated results. On top of it all, Denari and Capson repeatedly failed to produce requested documents during the investigation.

As a result of this action, Denari’s and Capson’s NFA memberships were suspended and they are prohibited from conducting business until they can demonstrate to NFA that they have cleaned up their act, including engaging a qualified third party to fully value Denari’s assets and calculate the correct amounts owed to each pool participant and noteholder.

It is unclear from the action what prompted Denari to finally pursue registration given its several years of operating while unregistered, but I am curious. And although this case demonstrates there was more than just ignorance underfoot, there are a few take-aways that should resonate with any adviser, whether subject to SEC or CFTC regulation. First, resist the temptation to apply a “best guess” approach when tackling the regulatory requirements associated with a new business, business line, investment strategy, or client type. Ignorance is not an excuse and qualified help is available, either from internal hires or external experts. And, although the cost of entry to this market is high, the cost of not investing properly in compliance is higher and simply too risky to ignore. Second, lying or ignoring a document request by a regulator for information that may negatively impact the course of an exam or investigation does not make it go away. For one of many hopefully obvious reasons, regulators often have other ways to obtain the same information, such as from other industry participants. Instead, cooperation and proactive remediation, even by a firm faced with potential issues, can be positive factors considered by a regulator when determining next steps. These factors could even result in an issue not finding its way into a deficiency letter or being referred to enforcement (depending of course on the specific facts and circumstances). Finally, calculating or claiming any aspect of a firm’s compliance program occurred “in your head” is not going to fly. Firms must document compliance efforts. In our industry, if a firm cannot provide evidence of the steps taken, the review conducted, or even a conclusion thoughtfully reached, a regulator will likely conclude that it never happened. Contributed by Cari A. Hopfensperger, Senior Compliance Consultant.

SEC Sanctions Levied Against Boston-Based Adviser for Breach of Fiduciary Duty to Senior Client.  After working with clients this year updating their Senior and Vulnerable Investor policies and procedures, I often wondered if notifying a state would result in any action against perpetrators. Well, to my amazement, the SEC brought a cease-and-desist order against a Boston, Massachusetts-based firm, Account Management, LLC, and its father and son principals, Peter and Christopher de Roetth, for violations of fraud under Section 206(2) and fiduciary duties under Section 203(e), 203(f), and 203(k) of the Investment Advisers Act. It’s probably not surprising that this first case was in Massachusetts, considering it is one of the most aggressive state regulators.

An unidentified woman called Ms. Jane Doe in the SEC order was a client of Account Management LLC dating back to the 1960s, and her accounts were the single largest source of Account Management’s revenues for the previous 20 years. Ms. Doe had never been married and had no immediate family members. In 2013, Ms. Doe set up a revocable trust, a will, and power of attorney instructing her attorney to distribute 90% of her assets to three individual beneficiaries. The remaining 10% would be distributed to a charity (the “Charity”), and Account Management would be the adviser to those assets. Christopher de Roetth was a witness to the signing of these documents. On multiple occasions, the de Roetth’s tried to convince Ms. Doe to change her estate plan in the hopes of continuing to manage more of her assets after her death. She rebuffed them multiple times. Then, in 2015, Christopher de Roetth directed her attorney to create an amendment to the trust. “In November 2015, the Attorney provided Account Management with an outline of that amendment, which directed that any assets in the revocable trust that were not distributed outright upon Ms. Doe’s death be kept in trust for an additional twenty years after her death for the benefit of the Charity client. It also stated that the trust “shall be managed by Account Management for the entire twenty-year term of the trust so long as Account Management remained in good standing as a licensed investment adviser.” In December 2015, one of the beneficiaries to the trust emailed the de Roetth’s and notified them that Ms. Doe had been diagnosed with senile dementia. The email stated the family member’s concern regarding her mental capacity and requested that a family member be present at any meetings with Ms. Doe.

In January 2016, Peter de Roetth and the Attorney visited Ms. Doe at her assisted care facility and had her sign the recently drafted amendment that increased the Charity contribution from 10% to 85% which would be managed by Account Management. No family members were present when she signed the amendment. So, here is where the twist occurs – you may think the beneficiaries, who stood to lose their inheritance, turned in the de Roetth’s and the Attorney for elder abuse. But no; the day after signing the amendment, Ms. Doe met with her social worker and told her that she had been swindled. Unfortunately, she did not remember signing any documents; however, the social worker had enough concern to notify the authorities.

Under the SEC Order, Account Management and the de Roetth’s cannot bill or collect any fees from the accounts of Ms. Doe or interfere with any decisions regarding her assets. Account Management was ordered to send a copy of the SEC Order to its clients within 30 days of its issuance and to sign a Certificate of Compliance that they are adhering to the terms of the Order. In addition to being censured, the firm was fined $100,000, and Christopher and Peter were fined $50,000 and $25,000 respectively.

This is a great case to include in your annual compliance training to demonstrate the realities of senior and vulnerable investor abuse, as well as provide insight into the fact that it’s not just family members who may try and defraud a client – the client’s attorney or other trusted advisers can also perpetrate fraud. It also demonstrates that the social workers, care providers and authorities are taking these crimes seriously. Before the year is over, take the time to review your Senior and Vulnerable Investor policies and procedures, and reference Hardin’s previous coverage of this important topic, including Regulatory Update for June 2019 and SEC’s Top Eleven Hits: Investment Adviser Regulatory Review 2018.

As a side note, Peter de Roetth, the father, was in his 90s at the time he was pushing Ms. Doe to sign off on the trust changes. His son Christopher apparently knew that Peter had tried several times previously but failed to stop him. Another lesson from this case is that firms with financial advisers that are of advanced age, especially founders and executives, should also consider the risks associated with their diminished capacity. Contributed by Heather D. Augustine, Senior Compliance Consultant.

Broker’s Clean Record of 32 Years Tarnished by SEC Insider Trading Fine. Insider trading cases can happen in the places you might be least likely to look for or expect them.  For 32 years, Timothy M. Rooney had a clean brokerage industry record with no regulatory disclosures or fines.  That all changed after he bought and sold Vera Bradley stock and options in his account around four different quarters of financial results for the company.  It turns out that Rooney had a friend and client that was also a Vera Bradley executive.  Rooney’s friend provided him with material non-public information for the company before the earnings release for each of the four quarters.  Rooney recorded personal profits of $129,704 and realized $436,071 in profits for the accounts of other family members and clients.  As a result, Rooney is now barred and must pay $876,497 in penalties.  Firms must be diligent in their compliance monitoring of activities for all of their brokers (even the ones that have had clean track records for 30+ years). Contributed by Doug MacKinnon, Senior Compliance Consultant.

The Other Shoe Drops… SEC Files Case Against Commonwealth Financial for Disclosure Failures for Revenue Sharing After Settling Charges in 12b-1 Sweep. The SEC is charging Commonwealth Equity Services, LLC, doing business as Commonwealth Financial Network (“Commonwealth”), with fraud and for breaching its fiduciary duty by failing to disclose its conflicts of interest in receiving revenue-sharing payments.  This case comes after Commonwealth’s payment of $1.64 million in disgorgement and interest to customers as a result of the SEC’s Share Class Disclosure Initiative.

National Financial Services (NFS), an affiliate of Fidelity and Commonwealth’s clearing broker, had an agreement with Commonwealth where NFS agreed to pay Commonwealth 80% of the revenue it received from fund sponsors for being included on its platforms.  Commonwealth did not receive revenue sharing payments from other mutual funds available through NFS.  Commonwealth disclosed in its Form ADV that it received revenue sharing and might have a conflict and that certain funds may contain higher internal expenses than other available mutual funds.  Commonwealth went on to state that this “could present a potential conflict of interest because Commonwealth may have an incentive to recommend those products or make investment decisions regarding investments that provide such compensation to Commonwealth.”  The SEC alleges that this disclosure is a day late and a dollar short since Commonwealth said a conflict “may” exist, whereas, as far as the SEC is concerned, the conflict “did” exist.  So, once again, the SEC slams an adviser for using the word “may” in its disclosure.

The SEC continues its crusade for more extensive disclosure of conflicts of interest by investment advisers and revenue sharing arrangements are the current target.  It’s also interesting that this case is being heard in federal court and not in an SEC administrative proceeding.  Perhaps that is because Commonwealth pushed back and refused to settle.  In any event, don’t expect a resolution anytime soon.  However, advisers should review the case, especially the disclosure provided by Commonwealth, and consider whether their Forms ADV include sufficient information about conflicts of interest to allow clients to make informed decisions.  Contributed by Jaqueline M. Hummel, Partner and Managing Director.

The Bigger the Conflict, the Bigger the Disclosure. In yet another case brought by the SEC for failure to adequately disclose conflicts of interest, an Alaska investment adviser and two of its principals were ordered to pay more than $400,000 to settle with the SEC.  Foundations Asset Management, LLC (“FAM”), Michael W. Shamburger (“Shamburger”), and Rob E. Wedel (“Wedel”) recommended that their clients invest in a private real estate fund called Alaska Financial Company III LLC (“AFC III”), managed by McKinley Mortgage Co., LLC (“McKinley”) from 2013 through 2016.  For its efforts, FAM received compensation in the form of a one-time up-front payment of 1.25% and a 1.25% annual trailing fee based on the total FAM client investments remaining in AFC III.   FAM did not charge clients an advisory fee on AFC III investments but ended up receiving more than its typical 1% assets under management advisory fee from AFC III and its manager, McKinley.

The lessons learned in this case include:

  • Private funds are securities. If you receive compensation connected with the sale of a private security, you need to be registered as a broker-dealer, unless an exemption applies.
  • The amount of disclosure required is directly connected to the “nature and magnitude” of the conflict. In this case, the adviser received more than double its typical advisory fee for the first year the client invested in AFC III, continued to receive an annual fee that was higher than its typical advisory fee, and the firm received a significant amount of its income from AFC III.  The SEC found that FAM’s simple statement that it “received revenue” for recommending investments in AFC III was wholly inadequate.
  • Make sure your Form ADV disclosure is consistent throughout the document. The SEC cited FAM for false statements in its Form ADV for incorrectly responding to Items 5.E. and 14.A., which ask about compensation and other economic benefits received.  Item 5.E. asks whether the firm or any of its supervised persons accept compensation for the sale of securities or other investment products and if so, to explain that this practice constitutes a conflict of interest.  Item 14.A. asks whether the firm receives any economic benefit, directly or indirectly, from any third party for advice rendered to clients.  Contributed by Jaqueline M. Hummel, Partner and Managing Director.

Worth Reading

 Filing Deadlines and To-Do List for September 2019


  • No regulatory filings are due.


  • Blue Sky Filings (Form D): Advisers to private funds should review fund blue sky filings and determine whether any amended or new filings are necessary.  Generally, most states require a notice filing (“blue sky filing”) within 15 days of the first sale of interests in a fund, but state laws vary.  Did you know that Hardin Compliance Consulting offers a convenient and economical blue sky filing service to help firms manage this complicated monthly task?  Learn more here and give us a call to discuss your needs further.  Due September 15, 2019.


  • Rule 17a-5 Monthly and Fifth FOCUS Part II/IIA Filings: For the period ending August 31, 2019. For firms required to submit monthly FOCUS filings and those firms whose fiscal year-end is a date other than a calendar quarter.  Due September 25, 2019.
  • SIPC-7 Assessment: For firms with a Fiscal Year-End of July 31, 2019. SIPC members are required to file the SIPC-7 General Assessment Reconciliation Form together with the assessment owed (less any assessment paid with the SIPC-6) within 60 days after the Fiscal Year-End.  Due September 29, 2019.
  • Annual Audit Reports for the Fiscal Year-End July 31, 2019: FINRA requires that member firms submit their annual audit reports in electronic form. Firms must also file the report at the regional office of the SEC in which the firm has its principal place of business and the SEC’s principal office in Washington, DC.  Firms registered in Arizona, Hawaii, Louisiana, or New Hampshire may have additional filing requirements.  Due September 30, 2019.
  • Supplemental Inventory Schedule (“SIS”): For the month ending August 31, 2019. The SIS must be filed by a firm that is required to file FOCUS Report Part II, FOCUS Report Part IIA or FOGS Report Part I, with inventory positions as of the end of the FOCUS or FOGS reporting period, unless the firm has (1) a minimum dollar net capital or liquid capital requirement of less than $100,000; or (2) inventory positions consisting only of money market mutual funds.  A firm with inventory positions consisting only of money market mutual funds must affirmatively indicate through the eFOCUS system that no SIS filing is required for the reporting period.  Due September 30, 2019.
  • FINRA Accounting Support Fee: Quarterly invoice to support the GASB budget. Based on the municipal securities the firm reported to the MSRB.  De Minimis firms (that owe less than $25) will not receive an invoice.  Invoices are sent to the firm via WebCRD’s E-Bill.  Due date to be determined.
  • SIPC-3 Certification of Exclusion from Membership: For firms with a Fiscal Year-End of August 31, 2019, AND claiming an exclusion from SIPC Membership under Section 78ccc(a)(2)(A) of the Securities Investor Protection Act of 1970. This annual filing is due within 30 days of the beginning of each fiscal year.  Due Date October 1, 2019.
  • SIPC-6 Assessment: For firms with a Fiscal Year-End of February 28, 2019. SIPC members are required to file for the first half of the fiscal year a SIPC-6 General Assessment Payment Form together with the assessment owed within 30 days after the period covered.  Due Date October 1, 2019.

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