The Securities and Exchange Commission (“SEC”) has approved the final rules to update and expand Regulation A (referred to as Regulation A+). Regulation A, part of Title IV of the Jumpstart our Business Startups (“JOBS”) Act, provides an exemption from registration for smaller issuers of securities. The final rules will provide exemptions for two tiers of offerings that will help smaller companies’ gain access to capital while still providing protections and more investment choices to investors.

The update to Regulation A’s current exemption will allow smaller companies to offer and sell securities of up to $50 million within a 12 month period. The offerings which fell under Regulation A will be divided into two tiers, and will be subject to eligibility, disclosures and reporting requirements. According to SEC Chairwoman Mary Joe White “These new rules provide an effective, workable path to raising capital that also provides strong investor protections.” White also went on to state that “It is important for the Commission to continue to look for ways that our rules can facilitate capital-raising by smaller companies.”

According to the SEC Press Release the final rules provide for two tiers of offerings and are as follows:

• Tier 1, which would consist of securities offerings of up to $20 million in a 12-month period, with not more than $6 million in offers by selling security-holders that are affiliates of the issuer.
• Tier 2, which would consist of securities offerings of up to $50 million in a 12-month period, with not more than $15 million in offers by selling security-holders that are affiliates of the issuer.

Please refer to the Press Release for additional information regarding requirements and eligibility for each tier. The rule amendments will go into effect 60 days after publication in the Federal Register.

For more information on this and other related subjects, please contact us at info@jackolg.com or (619) 298-2880.

This March the Securities and Exchange Commission’s (“SEC’s”) national associate director of investment advisor and investment company exams at its Office of Compliance Inspections and Examinations (“OCIE”), Jane Jarcho (“Jarcho”), spoke at the Investment Advisor Association’s compliance conference in Arlington, Virginia. Jarcho discussed cybersecurity and the upcoming second round of sweep examinations.

OCIE’s National Examination Program staff recently examined 57 registered broker-dealers and 47 registered investment advisers. The firms were selected “to provide perspectives from a cross-section of the financial services industry and to assess various firms’ vulnerability to cyber-attacks”. The findings from the exams have been summarized and can be found in the National Exam Program’s February 3, 2015 Risk Alert.

According to Jarcho, the SEC plans to begin its second round of sweep examinations this summer with shorter but “more in-depth” exams of broker-dealers, advisors and transfer agent’s (transfer agents were previously excluded). These exams will take place onsite and evaluate cybersecurity compliance controls. Jarcho stated that the “vulnerabilities that we want [advisers] to think about” include; advisors’ relationships with vendors and third parties; authentication procedures, such as logins and firewalls; as well as “response plans” advisors have made for cyberattacks that have been “successful.” The continued risk-based cybersecurity exams are part of OCIE’s 2015 priorities.

It is important to take the appropriate steps to develop and implement an effective cybersecurity policy within your organization. Not only will you be safeguarding and protecting your clients, but you will be better prepared for your next regulatory exam.

For more information on this and other related subjects, please contact us at info@jackolg.com or (619) 298-2880.

The Securities and Exchange Commission (“SEC”) has charged brokerage firm H.D. Vest Investment Securities (“H.D. Vest”) with failure to adequately supervise its registered representatives, which the SEC alleges led to a violation of key customer protection rules. H.D. Vest will be required to pay a penalty of $225,000 and to retain an independent compliance consultant to improve its supervisory controls.

This February the Securities and Exchange Commission’s (“SEC’s”) Division of Investment Management issued Guidance Update Number 2015-01 titled “Acceptance of Gifts or Entertainment By Fund Advisory Personnel — Section 17(e)(1) of the Investment Company Act.” The Update highlights potential conflicts of interest between the personnel of a fund’s investment adviser and those doing business or hoping to do business with the fund.

According to the Update, while there are many provisions of the Investment Company Act of 1940 prohibiting fund personnel from participating in certain transactions involving the fund, Section 17(e)(1) specifically states “[i]t shall be unlawful for any affiliated person of a registered investment company, or any affiliated person of such person . . . acting as agent, to accept from any source any compensation (other than a regular salary or wages from such registered company) for the purchase or sale of any property to or for such registered company or any controlled company thereof, except in the course of such person’s business as an underwriter or broker.”

The guidance is aimed at mutual fund industry participants to remind them “that the receipt of gifts or entertainment by fund advisory personnel, among others, also may implicate the prohibition in section 17(e)(1) of the 1940 Act.” In an example provided in the Update, it is explained that a fund manager would be in violation of section 17(e)(1) by accepting gifts or entertainment from a broker-dealer in exchange for trades of the fund’s portfolio securities.

Rule 38a-1 under the 1940 Act requires funds to create and implement written policies and procedures, appropriate to the fund’s business and reasonably designed to prevent violations of the federal securities laws. The update states that the receipt of gifts or entertainment should be addressed by such policies and procedures. Some funds may outright prohibit the receipt of gifts or entertainment while others may require pre-clearance.

To learn more about this subject please refer to Jacko Law Group, PC’s Legal Risk Management Tip entitled Gifts, Gratuities, Entertainment and Other Forms of Influence and Reward.

For more information on this and other related subjects, please contact us at info@jackolg.com or (619) 298-2880.

Jacko Law Group, PC (“JLG”) published its monthly Legal Tip, written by its Attorney, Robert Boeche this January. Boeche’s Legal Tip provides an overview of some of the new corporate laws affecting businesses. While this article is geared towards California businesses, several other states have substantially similar laws in place, or are in the process of enacting such laws. Further, out-of-state companies that operate in California are often subject to the rules of the state, so it is important to be aware of how such rules may impact your business.

Four individuals have been charged with insider trading by the Securities and Exchange Commission (“SEC”) in an alleged scheme involving two Silicon Valley-based companies. Christian B. Keller (“Keller”), a financial analyst employed by Applied Materials, Inc. and later Rovi Corporation, is accused of using his access to confidential information about the companies to organize an insider trading ring. Keller, along with John Gray (“Gray”), allegedly enlisted Kyle Martin (“Martin”) and Aaron Shepard (“Shepard”) to participate by trading in their respective brokerage accounts. At the time Gray was an analyst at Barclays, Martin was employed at a Beverly Hills car dealership and Shepard worked as a car stereo installer.

The Securities and Exchange Commission has charged broker-dealer Oppenheimer & Co. (“Oppenheimer”) with two courses of misconduct relating to its customer, Gibraltar Global Securities (“Gibraltar”). Oppenheimer has admitted to the wrongdoing which resulted in a $10 million fine. Oppenhiemer was also fined $10 million by the Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”).

The SEC’s order instituting a settled administrative proceeding states the first course of misconduct involved Oppenheimer “aiding and abetting illegal activity by a customer and ignoring red flags that business was being conducted without an applicable exemption from the broker-dealer registration requirements of the federal securities laws.” Oppenheimer executed billions of shares of penny stocks for Girbraltar, a brokerage firm based in the Bahamas, which was not registered to conduct business in the United States. The SEC found that Oppenheimer failed to file Suspicious Activity Reports (“SARs”), violated tax laws and failed to recognize the resulting liabilities and expenses as part of their books and records requirements.

The second course of misconduct describes Opphenheimer engaged in the sale of unregistered penny stocks on behalf of another customer. The order also describes a failure to respond to red flags, questioning the exemption status of the sales along with a failure to reasonably supervise “with a view toward detecting and preventing violations of the registration provisions” on the part of Oppenheimer.

According to a FinCEN news release, Oppenheimer willfully violated the Bank Secrecy Act by failing to establish and implement an adequate anti-money laundering program, failing to conduct adequate due diligence on a foreign correspondent account, and not complying with requirements under Section 311 of the USA PATRIOT Act.

Andrew J. Ceresney, Director of the SEC’s Division of Enforcement stated that “These actions against Oppenheimer demonstrate that the SEC is fully committed to addressing lax AML compliance programs at broker-dealers through enforcement action. The sanctions imposed on Oppenheimer, which include admissions of wrongdoing and $20 million in monetary remedies, reflect the magnitude of Oppenheimer’s regulatory failures.”

For more information on this and other related subjects, please contact us at info@jackolg.com or (619) 298-2880

The Securities and Exchange Commission (“SEC”) has approved The Financial Industry Regulatory Authority, Inc.’s (“FINRA”) proposed Rule 3110 (e). The rule was proposed last September and will go into effect July 1^st, 2015. It will require broker-dealers to perform more extensive background checks on registered representatives when filing Form U-4 applications.

Rule 3110(e) will require firms to adopt written procedures to verify the accuracy and completeness of new hire information on their Form U-4’s. The written procedures must “specify the firm’s process for verifying the information in the Form U4”. Firms will also be required to ‘‘ascertain by investigation the good character, business reputation, qualifications and experience of an applicant before the member applies to register that applicant with FINRA and before making a representation to that effect on the application for registration.’’ At minimum firms must search all “reasonably available public records,” no later than 30 calendar days after the form is filed with FINRA. “FINRA recognizes that there will on occasion be circumstances beyond a firm’s control that prevent completion of the verification process within the 30-day window. In such cases, FINRA states, the firm’s procedures should provide that the verification be completed as soon as practical and the firm should document the basis for the delay.” FINRA also encourages firms to complete the verification process before it files the Form U-4.

Broker-dealers should review their Written Supervisory Procedures in conjunction with Rule 3110 (e) to ensure compliance with the new rule.

To learn more about the impact of additional supervisory rules that became effective December 1^st, 2014 please read Jacko Law Group, PC’s September 2014, Legal Risk Management Tip What the New FINRA Supervisory Rules Mean For Your Brokerage Practices.

For more information on this and other related subjects, please contact us at info@jackolg.com or (619) 298-2880.

When a registered investment adviser representative breaks away to form a new company or to work for a new employer, several issues may arise. The type of access the representative has to client lists and information should be considered. It is also prudent to have polices in place to protect business trade secrets. Hanson McClain. ("Hason McClain"), a RIA based in Sacramento, California is suing Thomas Chandler ("Chandler") and Ameriprise Financial Services Inc. ("Ameriprise"). The $1.6 billion advisor is suing based on claims that Chandler, their former adviser, stole client information and used it to solicit clients.

In a case that exemplifies the importance of proper registration prior to initiating operations, HSBC’s Private Bank (“HSBC”) settled the Security and Exchange Commission’s (“SEC”) charges for failing to register before providing cross-border brokerage and investment advisory services to U.S. clients. HSBC admitted wrongdoing, accepted a censure and a cease-and-desist order, and was ordered to pay the SEC $12.5 million.

According to the SEC order, relationship managers with the HSBC traveled to the U.S. to solicit clients, and established or maintained brokerage and investment advisory accounts. They also provided investment advice and sought securities transactions without being registered to provide such services. The Private Bank’s relationship managers were also not affiliated with a registered investment adviser or broker-dealer, but still communicated directly with U.S. clients through overseas mail and emails. According to the SEC, HSBC began providing these advisory and brokerage services in the U.S. more than 10 years ago and during that time gained 368 U.S. client accounts and received approximately $5.7 million in fees.

While implemented compliance initiatives, their efforts to prevent registration violations ultimately failed because their compliance initiatives were not effectively implemented or monitored,” according to Andrew J. Ceresney, Director of the SEC’s Division of Enforcement.

While some argue the impetus for the investigation by the SEC of the HSBC was to further Washington’s crackdown on the secrecy of Swiss banking practices; it also exemplifies the importance of proper registration. Investment advisory and broker dealer firms need to remember that registrations needs to occur prior to performing any such activities and that a firm’s registration status may change following a merger or acquisition, change in ownership or even a change in corporate entity structure. It is also vital that all individuals of such firms be properly registered should their roles warrant such registrations. Determining when registration is required and how certain events effect registration at both the firm and individual levels is sometimes difficult and a matter of facts and circumstances. It is recommended that you consult an attorney should you have any questions regarding such issues.

For more information on this and other related subjects, please contact us at info@jackolg.com or (619) 298-2880.