CHAPTER 11: Regulation of Securities - Introduction Look Out! The term "security" is vitally important to theUSA; therefore, you will find the exactdefinition from the USA below. You arestrongly encouraged to memorize this definition for the exam. Definition: Stock As defined by the Uniform Securities Act, asecurity is any of the following: a note; stock; treasury stock; security future; bond; debenture; evidence of indebtedness; certificate of interest or participation in a profit-sharing agreement; collateral trust certificate; pre-organization certificate or subscription; transferable share; investment contract; voting trust certificate; certificate of deposit for a security; fractional undivided interest in oil, gas, or other mineral rights; put, call, straddle, option, or privilege on a security, certificate of deposit, or group or index of securities, including an interest therein or based on the value thereof; put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency; or, in general,
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Transcript
CHAPTER 11: Regulation of Securities - Introduction
Look Out!The term "security" is vitally important to theUSA; therefore, you
will find the exactdefinition from the USA below. You arestrongly encouraged to memorize this definition for the exam.
Definition: Stock
As defined by the Uniform Securities Act, asecurity is any of the following:
a note;
stock;
treasury stock;
security future;
bond;
debenture;
evidence of indebtedness;
certificate of interest or
participation in a profit-sharing agreement;
collateral trust certificate;
pre-organization certificate or subscription;
transferable share;
investment contract;
voting trust certificate;
certificate of deposit for a security;
fractional undivided interest in oil, gas, or other mineral rights;
put, call, straddle, option, or privilege on a security,
certificate of deposit, or
group or index of securities, including an interest therein or based
on the value thereof; put, call, straddle, option, or
privilege entered into on a national securities exchange relating to
foreign currency; or, in general,
an interest or instrument commonly known as a "security"; or
a certificate of interest or participation in,
temporary or interim certificate for, receipt for, guarantee of, or
warrant or right to subscribe to or purchase any of the foregoing.
Regulation of Securities - Stock Term Specifics
includes both certified and uncertified securities;
does not include an insurance or endowment policy or fixed annuity
contract;
does not include an interest in a contributory or noncontributory
pension or welfare plan subject to the Employee Retirement Income
Security Act of 1974;
includes an investment in a common enterprise with the
expectation of profits to be derived primarily from the efforts of a
person other than the investor and a "common enterprise" -
meaning an enterprise in which the fortunes of the investor are
interwoven with those of either the person offering the investment,
a third party, or other investors; and
includes, as an "investment contract", an interest in a limited
partnership and a limited liability company and, an investment in a
viatical settlement or similar agreement. o Viatical Settlement is an arrangement in which someone with a
terminal disease sells his or her life insurance policy at a discount from its face value for ready cash. The buyer cashes in the full amount of the policy when the original owner dies.
Look Out!The factor that determines if something is a security is whether the item is some sort of venture that could possibly return additional
income. For example, if you were to purchase a portion of a contractual interest related to buying homes - in which you were not the direct owner of the home - you would have purchased a
security. If you owned a collection of stamps, you would not have a security. However, if you owned a salable or tradable interest in
the stamps, but not the stamps themselves, you would have a security. Lastly, domestic currency is not a security.
Example
Bob owns a fancy set of ties, which he considers extremely valuable. He
decides to sell the ties on eBay™, putting them up for auction starting at
$10,000. Has he created a security by initiating an electronic auction?
Answer
No, because the purchaser of the ties will receive them directly, and as far
as we know, no third party benefited from the transaction - eBay™ only
benefited bycharging a fee, which does not qualify it as a broker-dealer.
Securities "offered or sold pursuant to most exemptions contained in the Securities Act of 1933, intrastate exemptions, non-profit exemptions, and any/all municipal/government securities sold in the state where the issuer is located".
Exam Tips and TricksPlease note that Nasdaq small-cap securities are not federal covered securities. This could easily show up on the exam.
Exam Tips and TricksQuestions about securities registration tend to be very
straightforward. Remember that only two questions involving securities registration are scheduled to be on the exam. Here are
two likely questions on the topic of exempt securities or transactions:
1. ABC Corporation has never previously issued securities
registered by the SEC. It can register in the State by which
method(s)?
I. Registration by filing
II. Registration by coordination
III. Registration by qualification
IV. Registration by administration
a. I only
b. II only
c. II & III
d. I, III & IV
The correct answer is "c": registration by filing is only available to
companies that have previously registered securities with the SEC, and
registration by administration is not a valid registration method.
2. Which of the following securities are not exempt under the
Uniform Securities Act?
a. Limited partnerships
b. Convertible bonds of a NYSE-listed company
c. U.S. Treasury bonds
d. Stock issued by a non-profit organization
The answer is "a", since all the other options listed are specifically
exempted.
CHAPTER 12: Remedies and Administrative Procedures - Introduction
Each state has an Administrator, who has certain jurisdiction and powers
related to the offer and sale of securities in his or her state. Generally, an
Administrator will simply issue a cease and desist order if he or she finds a
problem. However, the Administrator can also have a court order an
injunction or deny, revoke or suspend registration. The following section
outlines an Administrator's ability to regulate - that is, the enforcement
aspect of the USA.
Remedies and Administrative Procedures - Administrator Authority
Investigate
At any time, the Administrator can conduct public or private
investigations, within or outside of a state, which the Administrator
considers necessary or appropriate to determine whether a person
has violated, is violating, or is about to violate a rule, or to aid in the
enforcement of regulations of the USA.
o In conducting an investigation, the Administrator can at any
time require (or permit) a person to testify, file a statement,
or produce a record regarding facts or circumstances of a
situation. o The Administrator can also publish a record that is of direct
concern to an action, proceeding, or investigation.
In general, the Administrator has the ability to inspect records within (and
outside of) his or her state. The Administrator can also require those being
investigated to provide written statements under oath.
Issue Subpoenas
At any time, the Administrator may issue a subpoena for
investigation-related information, if he or she has jurisdiction over
the transaction or security in question.
Other Provisions
In addition to those already listed, the Administrator has the
following powers:o To cooperate in SEC investigations
o To publish information concerning a violation
o To compel testimony regarding a violation, even if such
testimony might incriminate the individual
Jurisdiction
Jurisdiction comes down to where a securities transaction was made and
whether a state Administrator has the authority to regulate the activity.
Jurisdiction includes any offer, or offer to sell that:o originates or takes place in the state.
o is directed to the state and received "at the place which it is
directed".o is accepted in a state:
if the offeree reasonably believes the offeror to be
present in the state.
and has not been previously communicated to the
offeror outside the state.
Jurisdiction as applied to publications or radio
An Administrator does not have jurisdiction over the following:o a publication that is a bona fide newspaper or other print
media - if the publication has two-thirds of its circulation
outside of the state in which it is published, or is circulated
outside of the publication state.o a television or radio broadcast that is syndicated from outside
the state.o any electronic communication originating from outside the
state.o any electronic communication that comes from within the
state, but is not intended for distribution within the state.
Jurisdiction as applied to investment advice and
misrepresentation
The Administrator has jurisdiction if an individual/entity attempts to
commit fraud in the Administrator's state, whether or not the
individual/entity in question is in the state or not.
Jurisdiction as applied to securities
When it comes to exempt securities transactions, the Administrator is permitted to deny or revoke any specific transaction or security exemption, but cannot enter the order to do so unless prior notice is given to all parties, an opportunity is given for a hearing, and written findings are provided. If the Administrator issues a summary order to deny or revoke pending final determination, he or she must notify all interested parties of the reasons for entering the order and inform them that a hearing will be granted within 15 days of a written request.
Exam Tips and TricksAn Administrator generally has jurisdiction if a transaction is originated or accepted in his/her state, or if it is directed to the
state.
Remedies and Administrative Procedures - Administrative Actions
The Administrator has the power to deny, revoke or suspend registrations
or licenses at any time, if the Administrator feels he or she is acting for
the benefit of the public. Moreover, the Administrator has an obligation to
not misuse his or her powers for personal gain.
The USA gives the Administrator very broad powers and applies to offers
made either verbally or in writing. The powers apply to broker-dealers,
agents, investment advisors and investment advisor representatives.
The Administrator can deny, suspend, or revoke registration if it is in the
public interestand if the registrant:
files a materially false, incomplete or misleading application.
willfully violates any provision of the Uniform Securities Act.
is prohibited by court order from engaging in the securities industry.
becomes insolvent.
fails to pay required fees.
is convicted of any felony, or any misdemeanor involving the
securities industry.
engages in unethical or dishonest business practices.
is unqualified due to lack of experience, training or knowledge.
fails to properly supervise employees.
However, the Administrator cannot deny, suspend or revoke a registration solely based on a lack of
experience if the applicant is otherwise qualified by training or knowledge.
Look Out!While this list of potential reasons to deny a registration
application includes the item "is unqualified due to lack of experience, training or knowledge", note that the paragraph that
follows states that the Administrator cannot deny or revoke a registration based on "lack of experience if otherwise qualified by
training or knowledge". You\'re likely to be tested on that distinction, so watch for answers such as "the Administrator can deny registration if it is in the public interest and an Investment Advisor (IA) has a degree in finance but no investment advisory experience". That answer would be incorrect, since the IA does
have training or knowledge.
Exam Tips and TricksIf, for any reason, an Administrator decides to take any one of the following three actions (denial, revocation or suspension), he/she must expressly detail the reasoning behind the injunctive act and
give the person/entity in question a chance for appeal.
Remedies and Administrative Procedures - Additional Administrative Powers
In addition to the following items (initiated by the Administrator), a
broker-dealer may withdraw its own registration at any time, and this
withdrawal is effective 30 days after an initial withdrawal application is
filed. Lastly, if a broker-dealer withdraws its registration, and then (within
one year) the Administrator finds a wrongdoing, the Administrator may
still commence disciplinary proceedings.
Denial
The Administrator may deny an application if:
o it is incomplete, contains any misleading information or omits
vital facts.
o within the last 10 years, the applicant was convicted of a
securities-related misdemeanor or any felony whatsoever -
regardless of whether or not it was securities related. o another Administrator already denied registration, or another
suspension or revocation order is already in effect. o the Administrator finds that the applicant is not financially
solvent and/or is in a state of bankruptcy. o a court order exists barring the registrant from working in the
securities industry. o the Administrator deems that the registrant is not qualified
for the type of business he or she intends to
pursue. However, an Administrator cannot suspend
registration if the registrant can give material proof that he or
she is qualified.
Revocationo An Administrator may revoke registration at any time, if any
one of the above six items listed under Denial is found to be
true. o In addition, the Administrator may revoke the registration of
an officer or partner of a firm without crippling the entire firm,
although such action could also be grounds for revoking the
registration of the firm as a larger entity. o Registration may be revoked from an agent without being
revoked from the broker-dealer, if it is found that the broker-
dealer was competently supervising the agent but was
nevertheless unable to prevent the agent from committing
some sort of fraudulent activity. However, if the agent's
fraudulent activity was the direct result of a broker-dealer's
incompetent supervision, then the broker-dealer's registration
is at risk as well.
Suspension
Suspension can occur for the same reasons as Denial, though
registration may be reinstated pending a hearing. Hearings are
usually held within 15 days of the initial request.
Cancellationo An Administrator may cancel an agent's registration if the
agent is found to be deceased, or not able to perform his or
her duties. In short, if for any reason the agent becomes
incompetent, the Administrator may cancel registration. o If an agent disappears and cannot be found after a
reasonable search (e.g. Jane's lounging on an exotic beach
somewhere and her firm can't find her for a month), the
Administrator may revoke registration.
Cease and Desist
The Administrator may issue a cease and desist order, if it has
determined that a particular action is in violation of the USA. If the
cease and desist order is ignored, the Administrator may have a
court intervene and issue an injunction against the party in
question.
Remedies and Administrative Procedures - Other Penalties and Liabilities: Civil
Civil liabilities arise when a violation of the USA has occurred and the
person harmed wishes to recover any losses incurred.
All securities professionals are liable for civil penalties if the USA is
violated. Where there is an infraction of the USA, purchasers of securities
can sue for recovery of losses.
When a client can sue:
A direct violation of the USA occurred, where a securities
transaction ensued.
An agent, broker-dealer or investment advisor sold securities in
violation of a direct rule of the Administrator.
Securities were sold by an unregistered person.
Misleading statements, or omitted facts, led to the sale of a
security.
The securities sold were either misrepresented as being approved
(recommended) by the Administrator or another governing body, or
misrepresented as being listed (or to be listed) on an exchange,
when in fact the information was false.
There was a violation of the state's sales literature requirements.
If a violation occurs, a purchaser can then sue for damages. The formula relating to recovery is fairly
simple. Purchasers can sue for:
Reasonable attorney fees, and other costs
+ Interest
+ The purchase price of the securities
- Any income (dividend or interest) received
= Damages
Exam Tips and TricksYou will notice that this formula can be summed up by the
acronym RITA. When you write the test, it may be helpful to think, "RITA\'s a little upset with her broker, and she\'s ready to sue!" Although civil penalties are no laughing matter in real life,
the humor should help you remember the damages formula for the exam.
Example
Bob's broker lied to him about a stock, telling him the state
Administrator had approved (and recommended) the stock for
purchase. Bob's broker further suggested that Bob should buy
the stock, since the Administrator's listing endorsement made it a
sure thing. Consequently, Bob bought $1,000 of the stock. Three
weeks after his investment, he received a dividend payment for
$15, which pleased him greatly. Shortly after, the company
released a negative press release. This triggered a sharp sell-off,
and the stock's price was cut in half. Bob sold the stock to retain
$500 of his initial investment. Soon after, Bob decided to sue his
broker, even though the legal costs would be around $300. What
can Bob sue his broker for?
Answer
Reasonable attorney fees, and other costs $300
+ Interest $0.00
+ The purchase price of the securities $500
- Any income (dividend, or interest) received $15.00
= Damages $775
*The original purchase price is $500 because Bob sold the investment -
holding on to $500 (half) of his original investment.
Remedies and Administrative Procedures - Other Penalties and Liabilities: Investment Advice and Rescission
Investment Advice
Any investment advice in violation of the USA is also liable for
civil penalties, as long as the advice was dispensed for a fee.
Those subject to fraudulent investment advice can sue for:
+ Cost of the advice
+ Loss resulting from the advice
+ Attorney fees (reasonable), and other costs
+ Interest____________________ _
- Money (dividend or interest) received
= Damages
Exam Tips and TricksIn this case, remember the acronym CLAIM. If investment advice was in violation of theUSA and was dispensed for a fee, an investor
can CLAIM damages.
Statute of Limitations
Once a person discovers a violation of the USA, he or she has two years to
sue, or three years from the date of the initial transaction.
Rescission
If an agent/person discovers a violation of the USA, a letter of rescission -
containing an offer to buy back the security in question - may be
tendered. Of course, the letter of rescission must also take into
consideration (and make an offer for) any interest potentially gained or
lost. In short, the formulas given for civil losses apply equally for a letter
of rescission - with the exception that the party issuing the letter of
rescission is generally trying to avoid legal fees. Furthermore, it is
important to note that once a rescission offer is tendered, the buyer of the
securities must respond within 30 days, or he or she gives up all rights to
take legal action at a later date.
Example
Billy, an agent of Bad Boy Brokers, Inc, discovers that he has violated
the USA by misquoting dividend information which led to the purchase of
a security by a customer. Though Billy's firm has had a few run-ins with
the Administrator in the past, he's trying to reestablish the firm's
reputation as a reliable business. He realizes that his client invested
$1,000, expecting a 10% dividend. Billy immediately writes a letter of
rescission, offering to repurchase the securities. In the time it takes for
Billy to send the letter and for his client to agree to sell the securities
(three days), the stock appreciates $5. Billy's client sells the securities to
Billy for a $5 profit (assuming, hypothetically, that no commissions are
paid). What is the total amount Billy owes his client?
Answer
First, Billy owes his client $995, as the client already received $5 in capital
appreciation.
Second, Billy rescinded the offer in three days, but had guaranteed 10%,
which would equate to $3.65 a day. So, Billy also owes his client $10.95 in
interest. Billy's total tally is $995 + $10.95, working out to $1,005.95
(assuming the client already received an additional $5).
Remedies and Administrative Procedures - Other Penalties and Liabilities: Criminal
Criminal penalties arise when a person or an entity is proven
guilty of consciously and willingly conducting a fraudulent
securities transaction (in violation of the USA).
Look Out!The key word in criminal liabilities is "fraudulent", meaning the
violation was deliberate.
Once the Administrator makes an order (which can lead to fines
and/or imprisonment), the person or entity affected may retort
with a written petition of appeal within 60 days.
At the same time, the affected member (agent or broker-dealer)
must serve the Administrator as well. Following this, the
Administrator is obligated to provide the appropriate court with
all evidence.
Unlike the normal judicial process, once the Administrator makes
an order, it remains in effect until a court of law overturns it.
Whatever the court decides in appeal is final, and the court has
the right to change any part of the order.
Conviction
If the offender is convicted, he or she may not be imprisoned for
more than three years, or pay more than $5,000 in fines (per
violation).
Statute of Limitations
The statute of limitations for criminal penalties is five years.
Exam Tips and TricksIt is crucial to remember that there can be no prison time if a
person can prove that he or she had no knowledge that the USA was being violated.
Exam Tips and TricksYou should be very familiar with the specific powers of the
Administrator and the differences between civil and criminal penalties. Here are two questions that could come up on the exam:
1. Of the following statements regarding the state
Administrator's powers, which are TRUE?
I. The Administrator may revoke a registration for the
sole reason that it is "for the public good".
II. If an IA's registration is suspended, any IARs who work
for the IA will have their licenses suspended as well.
III. If an IAR's registration is suspended, the license of the
IA he/she works for is suspended as well.
IV. IAs, but not IARs, may have their registration revoked
for failing to properly supervise employees.
a. I & II only
b. I & IV only
c. I, II & III only
d. II & IV only
The correct answer is "d": if the IA license is suspended, there can be no
active IAR registrations, and IAs are responsible for supervising employees
(IARs have no such responsibilities).
2. A state Administrator can do all of the following EXCEPT:
a. require a witness to testify at a hearing.
b. inspect a broker-dealer who does business in the state, even
if the broker-dealer is located in another state.
c. suspend the constitutional privilege against self-incrimination.
d. coordinate inspections with the SEC.
The correct answer is "c": while the Administrator can compel
incriminating testimony, the privilege against self-incrimination is a
constitutional one, and federal law must supercede state laws.
Remedies and Administrative Procedures - Other Provisions
The Uniform Securities Act states that an Administrator may require a firm
to "require the filing of any prospectus, pamphlet, circular, form letter,
advertisement, or other sales literature or advertising communication
addressed or intended for distribution to prospective investors, including
clients or prospective clients of an investment adviser, unless the security
or transaction is exempted."
Exempted securities include the following:
Federal covered securities
Any security issued or guaranteed by Canada
Any security issued or guaranteed by a bank, savings institution or
trust company
Any security issued or guaranteed by any federal credit union or
any credit union
Any security issued or guaranteed by any railroad or other common
carrier, public utility, or holding company
Securities issued or guaranteed by non-profits
Any investment contract issued in connection with an employees' stock purchase, savings, pension, profit-sharing or similar benefit plan
Exam Tips and TricksYou can expect a question on the test regarding the Telephone Consumer Protection Act of 1991, which states that organizations must do the following:
Maintain do-not-call lists. When a prospective recipient of a call asks to be put on the list, the firm must keep his or her name on record for 10 years.
Make sure that reps understand how to use the list and immediately record any names and phone numbers of people who wish to be on the do-not-call list.
Only call homes of prospective clients between the hours of 8:00 AM and 9:00 PM in the customer\'s time zone.
CHAPTER 13: Client Communication and Compensation Issues - Introduction
Disclosure - The Brochure Rule
Investment advisors must disclose the nature of the relationship between
the client and the IA. IAs cannot participate in, nor be compensated by,
any percentage gains of a client's portfolio. These terms must be included
within the investment advisor's contract.
The most important rule regarding disclosure is the brochure rule, which
requires an IA to provide a written disclosure document to each
investment advisory client or potential client. The IA can simply provide a
copy of the Form ADV Part II, or create a brochure with substantially the
same content. The document must include all of the following information:
Background information of the IA and any IARs
Services available and the fees for those services
Disclosure of any compensation received from third parties (such as
commissions or referral fees)
Whether the IA exercises discretion over client funds
Types of clients for whom advisory services are provided, including
any minimum dollar amount for assets to be managed
Disclosure of any affiliation with a broker-dealer
Any material legal or disciplinary action that occurred within the last
10 years
Any financial condition of the IA (such as bankruptcy) that might
impair its ability to meet client commitments must also be disclosed
if the IA:o has discretion over client accounts.
o has custody of client monies or securities.
o requires prepayment of more than $500 in fees, more than
six months in advance.
The brochure must be provided at least 48 hours before entering into an advisory contract, or at the
time of entering into a contract, if the client has the right to terminate the contract without penalty
within five business days. Each year, the IA must deliver (or offer to deliver) its disclosure document
to existing clients. Failure to meet disclosure requirements is considered fraudulent behavior.
Look Out!It is crucial for you to know when the brochure must be given; the
timing of this disclosure is frequently tested on the exam. Remember, it is not true that a brochure must be provided prior to
entering into the contract; however, the contract must then explicitly offer the right to terminate without penalty within five
business days. If this offer is not part of the contract, the brochure maynot be provided at the time of signing the contract. Watch for answers such as "...if the IA states he/she has a right to terminate
within five business days..." - this is incorrect, since a verbal statement is not sufficient.
Under the USA, an additional disclosure is required if the IA acts as
principal for its own account or as broker for both an advisory client and
another person on any securities transaction. In these instances, the IA
must disclose (prior to completion of the transaction) in what capacity it is
acting, and it must receive the client's written consent.
Wrap fee (or wrap account) programs require a special disclosure form
instead of the Form ADV Part II. For these purposes, the SEC definition of
wrap accounts does not include:
Managed account programs - Traditional portfolio management
Mutual fund asset allocation programs - Bundled programs
that charge a percentage of assets fee to manage a portfolio of no-
load (or load-waived) mutual funds
The wrap fee disclosure must include the following information (where
applicable):
The amount of the wrap fee, the services that are included, and
whether the fees are negotiable
Any additional fees that might be required
What methods are used to select portfolio managers
What compensation is paid to the person who recommended the program
Exam Tips and TricksBe prepared to answer a number of questions on the
"brochure rule", and be familiar with what must be included on Form ADV Part II. Here are two questions you might
encounter on the exam:
1. The brochure rule applies to:
a. only discretionary advisory contracts.
b. only written advisory contracts.
c. only oral advisory contracts.
d. both oral and written advisory contracts.
The correct answer is "d". The brochure rule applies to all investment
advisory contracts.
2. Under the brochure rule, the IA clients (or potential clients)
must receive a copy of the brochure:
a. at least 48 hours prior to entering into an advisory contract.
b. within 24 hours of entering into an advisory contract.
c. at the time of entering into an advisory contract, as long as
the client can terminate the contract without penalty within
three days.
d. within five days of entering into an advisory contract.
The correct answer is "a". "c" is wrong because this provision only applies
if the client can terminate within five days.
Client Communication and Compensation Issues - Investment Advisor Contracts
While state laws require that contracts between state registered
IAs and clients be in writing, the Investment Advisers Act of 1940
does not.
Exam Tips and TricksAlthough the NASAA Model Rule on Unethical Business Practices does state that written contracts are required, the questions on the
exam do reference oral contracts.
However, most IAs put their contracts in writing to avoid
misunderstandings. Also, SECrules do impose the following conditions
on a written investment advisory contract:
Performance-based fees are generally prohibited (learn more in the
next section).
Contract language must not lead clients to believe they have
waived rights to take legal action against the advisor.
There must be no provisions that force the client to waive
compliance with any of the rights or rules within the Investment
Advisers Act of 1940.
Contract must prohibit the IA from assigning the contract without
the client's consent.
Under the USA, IA contracts must:
disclose all material information regarding the services to be
provided and the fees to be charged.
disclose conditions under which the contract may be assigned to
another party.
require client consent prior to the IA assigning the contract.
require the IA (if a partnership) to notify the client of any change in
the membership of the partnership.
not permit the IA to be compensated on the basis of sharing in
capital gains or capital appreciation of the client's accounts
(however, fees based on the total value of the account, such as an
assets under management fee, are allowed).
Performance Guarantees
Performance guarantees are generally considered a conflict of interest. The hallmark of an
investment advisor is objectivity, so there must be no personal interest in the outcome of any specific
investment recommendation. Also, guaranteeing a client's account against loss is specifically cited as
an unethical business practice under the USA.
Look Out!Guaranteeing a client\'s account against loss is a type of
performance guarantee. The Series 66 exam is not likely to test you on any distinction between these two concepts.
If any change within a partnership firm is made (i.e. change in partners),
clients must be made aware of the change in reasonable time. It is
important to note that this act of notification only applies to partnerships,
not corporations.
Client Communication and Compensation Issues - Advertising
The Investment Advisers Act of 1940 defines advertising as any letter,
notice, circular or other written communication addressed to more than
one person, as well as any notice in a publication or by radio or TV that
contains the following:
Graphs, charts, formulas or other devices used to determine how to
choose a security or when to buy or sell a security
Information that offers analysis, reports, or publications concerning
securities or when to buy or sell a security
Any other investment advisory service that relates to securities
The following media have also been identified by the SEC as forms of
advertising:
Form letters and other mass mailings
Press releases
Newsletters
Marketing brochures
Telemarketing scripts
Slides or audio/videotapes used in marketing presentations
E-mail messages sent to more than one person
Advertising standards
IA advertising is not permitted to:
refer (directly or indirectly) to testimonials about the advisor.
refer to specific past recommendations that were profitable.
However, an IA may advertise a list of all recommendations made
within the immediate past year (or longer), as long as all pertinent
information is included (date of recommendations, market price at
time of buy, sell, and current), along with a disclaimer on the first
page stating: "It should not be assumed that recommendations
made in the future will be profitable or will equal the performance
of the securities in this list."
advertise that any report, analysis or other service is free of charge
if that is not completely true - there must be no obligation or
condition of any kind.
represent that a graph, chart, formula or other device can (by itself)
be used to determine which securities to buy or sell, without
disclosing the limitations in doing so.
Performance advertising
In a guidance statement called the Clover Capital letter, the SEC clarified
that advertising of actual performance data would be prohibited if the
advertising:
included results that didn't reflect the impact of brokerage
commissions, advisory fees and other client-paid expenses.
failed to disclose the effect that market or economic conditions had
on the results.
failed to disclose whether or not the results shown reflected
reinvestment of dividends and capital gains.
made claims about the future potential for profit without also
mentioning the possibility of loss.
failed to disclose (if applicable) that performance results related
only to a select group of the IA's clients.
compared results to an index without disclosing all material facts
relevant to the comparison.
failed to disclose any material conditions, objectives or investment strategies used to obtain the results.
Exam Tips and TricksOne question you can expect to see involves
performance advertising. In particular, one type of answer that appears to be correct is "IAs cannot use
performance advertising that promotes results received by only a small group of the portfolios under management." But the
requirements listed above state that it is only prohibited to not disclose that only asmall group was used, so the answer above
isactually incorrect.
Client Communication and Compensation Issues - Solicitation
The Investment Advisers Act of 1940 permits an IA to pay a fee to a
person who solicits advisory clients only if these two conditions are met:
The IA is registered with the SEC.
The solicitor has never been suspended, expelled, limited or barred
from associating with an investment advisor by the SEC.
If solicitation is permitted, the following rules apply:
There must be a written agreement between the IA and the
solicitor, which must require compliance with the Investment
Advisers Act of 1940.
The solicitor must provide a copy of the IA's disclosure document to
the potential client at the time of solicitation.
The solicitor must provide a separate disclosure document to the
potential client that spells out the names of the solicitor and the IA,
the nature of the relationship between the two, a statement that
the IA will pay the solicitor, and the amount above the regular
advisory fee that the client will be charged due to the use of the
solicitor.
The IA must obtain a signed and dated acknowledgement from the client stating that he or she has received both the IA's and the solicitor's disclosure documents by the time the advisory contract is entered into.
Exam Tips and TricksIt is important to know the rules for both general advertising and
performance advertising. You can expect fewer questions on advisory contracts and solicitations. Here is a question you might
encounter on the exam:
1. Which of the following statements about IA advertising is
FALSE under the Investment Advisers Act of 1940?
a. A performance record may only be used if it contains a
disclaimer on the first page that states there is no assurance
that future results will be as good as the reported results.
b. The IA may not advertise a formula without a disclaimer that
refers to the limitations and difficulties of relying on any one
formula or system.
c. Testimonials may be used only if written consent has been
obtained from the client and the testimonial is not misleading
in any way.
d. A performance record may be used only if the results are for
at least one year.
The correct answer is "c": testimonials may not be used in IA advertising.
Client Communication and Compensation Issues - Compensation
There are few specific restrictions on fees within either the Investment
Advisers Act of 1940 or the USA. The advisory fee must not be
"unreasonable", which means that it should be in line with what other
advisors charge. Under the USA, the following types of fee arrangements
are permitted:
Fees based on a percentage of assets under management
Flat annual dollar amount for services agreed upon
Brokerage fees on trades made for clients
Wrap fees that cover all services (asset management and transactional fees) in one single annual fee
Look OutThere are a few exceptional cases in which an investment advisor can benefit from portfolio gains. Advisors can participate in capital gains (receive a performance-based fee) if the client:
1. is an institutional investor. 2. is a private client with a minimum net worth of $1.5
million.
3. is a private client with a minimum of $750,000 invested with the IA.
As mentioned above, performance-based fees are generally prohibited.
Only two types of clients may be charged such a fee:
Registered investment companies (mutual funds)
An individual with an account value in excess of $1 million (Uniform
Securities Act), OR
An individual with an account value in excess of $750,000 and a net
worth of at least $1,500,000 (Investment Adviser Act)
In these cases, a performance-based fee known as a "fulcrum fee" is permitted. A fulcrum fee
provides for a base fee to be paid to the advisor, with additional fees permitted for performance
above a specific benchmark. However, this is allowed only if the base fee would be reduced equally
for inferior performance beneath the benchmark.
Look Out!Don\'t confuse performance-based fees with performance
guarantees - read the exam questions carefully. Remember that performance guarantees are alwaysprohibited, while performance-based fees aregenerally prohibited, with the exceptions discussed
above.
Exam Tips and TricksHere is a question you might encounter on the exam:
1. IAs may enter into advisory contracts that allow
compensation:
a. based on the level of trading activity.
b. based on a percentage of the value of all assets under
management.
c. based on a percentage of capital gains or losses in the
account.
d. based on any of the above
The correct answer is "b": options "a" and "c" are specifically prohibited.
CHAPTER 14: Handling Client Funds - Introduction
Custody
Custody is defined as having physical possession of funds or securities.
Funds and securities can be placed in custodian accounts, though an
Administrator may require that an advisor post a bond for such.
Investment advisors that have the ability to withdraw money from a
client's account are considered to have custody of these funds. In that
case, the Investment Advisers Act of 1940 requires the IA to do the
following:
Keep each client's securities segregated and held in safekeeping
Not commingle client funds with the IA's funds
Maintain client funds in accounts that name the IA as trustee or
agent
Keep records showing deposits and withdrawals for each client
account
Notify clients in writing of how the funds are maintained and when
accounts are changed
Send a quarterly (or more frequent) itemized statement to each
client
Arrange an annual unannounced visit from an independent public
accountant, who must then file a report with the SEC verifying the
amount of client funds and securities
These rules do not apply if the IA is also a broker-dealer, since broker-
dealers are subject to similar rules at the federal level.
Under the USA, IAs must notify the Administrator if they currently have
custody of client funds and securities (or plan to in the future). Otherwise,
the custody requirements are the same as those stated by the Investment
Advisors Act of 1940 (except that the state Administrator receives the
As is the case with registered representatives of broker-dealers,
an IA must not exercise discretionary power over securities
transactions without first obtaining the proper discretionary
authority from the client. Only oral discretionary orders are
required in the 10 days following the first transaction in a client
account. Thereafter, specific written discretionary authority is
required. As with registered representatives of broker-dealers, an
IA may use discretion as to time and price of an execution
without having discretionary authority.
Look Out!The time and price question is sure to be tested and is easy to
recognize. But expect additional questions on discretionary powers, particularly regarding situations where a client is unavailable and the client\'s spouse may want to place orders or give approval to an IA\'s suggestion of a buy or sell
order. If the spouse has not been given written power of attorney on the account, it is always incorrect to choose an answer involving
the spouse. In particular, watch out for an answer stating the spouse can give approval as long as the client signs a power of
attorney within 10 days following the trade: the 10-day rule only applies following the first transaction to occur in a new
account.
Exam Tips and TricksCustody questions tend to focus on the Investment Advisers Act
standards. Consider this sample question:
1. The following statements about IAs that take custody of
client funds are true, EXCEPT:
a. each client must receive a statement of transactions in the
account at least quarterly.
b. the IA must be audited at least annually.
c. each client's funds must be segregated from other client's
funds.
d. client funds must not be commingled with the IA's funds.
The correct answer is "c" - while the funds must not be commingled with
the IA's funds, there is no requirement that they not be commingled with
other client's funds.
Handling Client Funds - Suitability
If at any time you knowingly recommend an unsuitable
investment to a client, with the intention to defraud, you are
liable for both civil and criminal penalties. Suitability is defined in
many ways, a few of which will be discussed here.
Look Out!The SEC specifically defines suitability as follows:
When your broker recommends that you buy or sell a particular security, your broker must have a reasonable basis for believing that the recommendation is suitable for you. In making this assessment,
your broker must consider your risk tolerance, other security holdings, financial situation (income and net worth), financial needs, and
investment objectives.
The USA requires IAs to determine the suitability of investment
recommendations given each client's circumstances. Failure to do so is
considered an unethical business practice and is subject to penalties.
The following practices are examples of violations of the suitability rules:
Recommending securities without having a reasonable basis for the
recommendation
Recommending securities without taking the client's financial
situation, needs and objectives into account
Recommending the same security to all clients
Failing to describe important facts and risks about the security to
each client
Making trades of excessive size in a client's account
Churning in a client account (making trades too frequently)
Providing services that are not appropriate to the client's situation
and needs
Failing to inquire into client's tax situation, risk tolerance and other
assets
The Investment Advisers Act of 1940 also defines failure to meet
suitability standards as an unethical practice. An IA who does not make
reasonable inquiry, or suitable recommendations given the information
from such an inquiry, is guilty of violating the suitability requirements.
For many years, the "Prudent Person Rule" stood as a guide for
fiduciary investing. While it was designed to limit unsuitable
investing by third parties, it basically placed a higher emphasis
on preservation of capital than on income or growth.
Furthermore, the rule required looking at each investment to see
if it was suitable.
In 1994, the Uniform Prudent Investor Act was created as a model
law for states to enact. It essentially updated the old "prudent
investing" standards to take modern portfolio theory into
account. As a result, fiduciary investors can take advantage of
diversification and risk-reward tradeoffs and can manage a
portfolio as a whole.
Look Out!While the Uniform Prudent Investor Act permits an IA to include
growth investments if they are appropriate to the needs of the client, remember that the client\'s specific situation is the key consideration. Look out for questions that imply that, under the Act, stocks would be appropriate for any client account.
While the fiduciary role of IAs and IARs was discussed earlier in
the section, it is important to understand that all topics discussed
in this section must be considered in all dealings with the client,
from investment recommendations to choice of trustees (for
retirement accounts and other trusts) and investment managers.
Exam Tips and TricksSuitability is one of the primary concerns of an IA. Questions
could focus on either the practices that violate suitability standards or the consequences of such violations. Consider this sample
question:
1. An IA is working with a new advisory client who is anxious
to get a large sum of cash invested. When the IA tries to
take the time to understand the client's financial objectives
and other assets, the client tells her, "We'll do that later,
just get my account invested first." Which of the following
statements is TRUE?
a. The IA should explain that it is unethical to make investment
recommendations without first obtaining this information.
b. The IA can make investment recommendations as long as the
financial objectives are obtained within 10 days of investing
the funds.
c. The IA must cancel the client's advisory contract.
d. The IA can make investment recommendations once she
receives the client's other investment account statements.
The correct answer is "a". The IA must not invest the client's money until
sufficient information is gathered to make suitable recommendations, and
she should explain to the client why failure to follow this rule is unethical
and inappropriate.
CHAPTER 15: Conflicts of Interest - Introduction
Both the Investment Advisers Act of 1940 and the Uniform Securities Act
spell out a number of potential conflicts of interest and unethical
behaviors.
Conflicts of Interest - Excessive Trading and Insider Trading
Excessive Trading
Excessive trading has already been mentioned in the"Suitability" section.
By definition, excessive trading is also a conflict of interest, since in most
cases an IA who engages in this behavior also receives commissions from
such trades. This is a clear case of conflict of interest, since an IA must
always put his or her client's interests first. Any time you trade (on a
discretionary basis), or recommend trading excessively in or for a client's
account, for the sake of generating commissions, you are committing
fraud. Legally, the term associated with this action is known as churning.
The SEC defines churning as follows:
Churning refers to excessive buying and selling in your account by your
broker. For churning to occur, your broker must exercise control over the
investment decisions in your account, either through a formal written
discretionary agreement or otherwise, and must engage in excessive
trading in light of the financial resources and character of the account for
the purpose of generating commissions.
Insider Trading
As the SEC site makes clear; there are actually two types of insider trading, the legal kind and the illegal kind. This clarification is needed because many people associate the term with solely illegal activities. According to the SEC, legal insider trading occurs when insiders (officers, directors and employees) trade their own securities and report any/all transactions to the SEC.
Look Out!According to the SEC, illegal insider trading occurs when insiders buy or sell securities"in breach of a fiduciary duty or other relationship of
trust and confidence, while in possession of material, nonpublic information about the security. Insider trading violations may also
include \'tipping\' such information, securities trading by the person \'tipped,\' and securities trading by those who misappropriate
such information."
Examples of insider trading listed by the SEC include:
corporate officers, directors and employees who traded the
corporation's securities after learning of significant, confidential
corporate developments;
friends, business associates, family members and other "tippers" of
such officers, directors and employees, who traded the securities
after receiving such information;
employees of law, banking, brokerage and printing firms who were
given such information to provide services to the corporation whose
securities they traded.
Examples of insiders listed by the SEC include:
government employees who learned of such information because of
their employment by the government; and
other persons who misappropriated, and took advantage of,
confidential information from their employers.
Conflicts of Interest - Selling Away, Client Loans and Confidentiality
Selling Away
When a broker solicits you to purchase securities not held or offered by the brokerage firm. As a rule, such activities are a violation of securities regulations. Typically, when a broker is selling away, the investments are in the form of private placements or other non-public investments.
Look Out!The basic idea here is that if you are selling away, as a broker, you are attempting to sell something that you do not have rights to, or have not
been authorized to sell. Such activity is considered fraudulent.
Client Loans
It is usually considered unethical to borrow money from or loan money to
a client. Since the advisory relationship allows the IA to know confidential
information about the client's income and assets, it is a breach of
confidentiality (see below) to borrow money from the client. Furthermore,
loaning money in either direction is likely to influence the advice given,
thus making it almost impossible for the IA to give objective advice.
Exceptional circumstances in which it would be allowable for an IA to
borrow money from a client are these:
if the client is in the business of lending money
if the client is an affiliate of the investment advisor
if the client is a broker-dealer.
Exceptional circumstances in which it would be allowable for an IA to lend
money to a client are these:
if the IA is a financial institution that normally engages in lending
money
if the client is affiliated with the IA, such as an employee of the IA.
Look Out!Remember, it is OK to borrow from or lend to someone who is an affiliate of the investment advisor or broker-dealer. On the exam,
this is usually referred to simply as "an affiliate". his can be confusing, but these answers are considered correct.
Confidentiality
Confidentiality is required for all aspects of client information, unless the