Massachusetts Personal Information Security Law Grandfather Expires March 1, 2012

Massachusetts enacted 201 CMR 17.00: Standards for the Protection of Personal Information of Residents of the Commonwealth, new regulation regarding the safeguarding of Massachusetts residents personal information, in 2009 with compliance date of March 1, 2012. The regulation set standards to be met by persons, including Investment Advisers, with clients residing in Massachusetts to have privacy protection clauses or language contained within the contracts entered into with third party service providers. The compliance requirements of the law and regulations contained a grandfathering provision for any contract entered into prior to March 1, 2010. Under the grandfather provision, Investment Advisers with service provider contracts entered into before March 1, 2010 were deemed to be in compliance even if the contract made no reference to data protection. We’re highlighting the regulation today to remind you the grandfather provision EXPIRES on March 1, 2012. As of this date, all investment advisers with clients residing in the state of Massachusetts must be in compliance with this law, regardless of when the contract was entered into.

What does this mean for you?

If you have clients residing in Massachusetts, you have an obligation to ensure third party service providers you do business with, that may have access to client information, implements and maintain appropriate security measures for the protection of client personal information. The regulation established minimum standards to be met in connection with the safeguarding of personal information, covering both paper and electronic records. Section 17.03(2)(f): “Oversee service providers, by:

1. Taking reasonable steps to select and retain third—party service providers that are capable of maintaining appropriate security measures to protect such personal information consistent with these regulations and any applicable federal regulations; and

2. Requiring such third-party service providers by contract to implement and maintain such appropriate security measures for personal information…”

The contract between the Investment Adviser and service provider must contain language requiring the service provider to have protection measures in place.

We recommend you:

• Review your client list, identify whether you have clients residing in Massachusetts


• Review your contracts with third party providers that may provide services to Massachusetts clients


• If the contracts do not contain the required terms, re-negotiate and execute contracts to be compliant with the regulation Review your Privacy Policy and Procedures, verify against the standards required and ensure the firm is in compliance with the standards and includes all the provisions of Section 17.03: Duty to Protect and Standards for Protecting Personal Information.

If you have clients residing in Massachusetts, it’s critical you address this regulation in a timely manner, as there are penalties for non-compliance.

Red Oak Compliance Solutions is available to help. We can review your privacy policies, assist in the creation or updating of your privacy policies, as well as provide guidance on all of your compliance needs. For more information on the Massachusetts privacy regulations or to request information on how we can help, please contact us.

SEC Modifies Standard for Accredited Investors

The U.S. Securities and Exchange Commission ("SEC") has modified the rules used to determine whether an individual is qualified as an accredited investor. To qualify as an "accredited investor" an investor must have a net worth, alone or with a spouse, greater than or equal to $1 million, excluding the value of the home. The rule also excludes from the $1 million net worth calculation, any liabilities secured by the individual's primary residence. If the secured liabilities exceed the fair market value of the primary residence, then the indebtedness that is greater than the value of the residence is applied against the individual's net worth. In addition, secured loans must have originated more than 60 days prior to the purchase of the unregistered security to prevent individuals from taking out a second line of equity on their home in order to invest in unregistered securities. This new rule will go into effect 60 days after it has been published in the Federal Register.

SEC Penalizes Investment Advisers for Compliance Failures

In 2006 when the SEC implemented Rule 206(4)-7 of the Investment Advisers Act, the “Compliance Rule”, we all knew it was only a matter of time before the deficiencies resulting from that Rule would start to pile up. Not because advisers wish to defraud or hurt their clients, but from a general lack of understanding about what was required. Well today the SEC charged three investment advisers for failing to put in place compliance procedures designed to prevent securities law violations.

The cases are the result of a SEC initiative to proactively prevent investor harm by working closely with agency examiners to ensure that viable compliance programs are in place at firms. When SEC examiners identify deficiencies in a firm’s compliance program, those deficiencies need to be corrected before they lead to other securities law violations that could harm investors. Investment advisers that essentially ignore SEC examination warnings risk being the subject of SEC enforcement actions.

The firms being charged with compliance failures in separate cases today are Utah-based OMNI Investment Advisors Inc., Minneapolis-based Feltl & Company Inc., and Troy, Mich.-based Asset Advisors LLC. The SEC also charged OMNI’s owner Gary R. Beynon, who served as the firm’s chief compliance officer despite living in Brazil and performing virtually no compliance responsibilities. Feltl & Company, Asset Advisors, and Beynon will pay financial penalties and institute a series of corrective measures to settle the SEC’s charges.

In two of the cases, OMNI and Asset Advisors, SEC examiners previously warned the firms about their compliance deficiencies.

“Not all compliance failures result in fraud, but many frauds take root in compliance deficiencies,” said Robert Khuzami, Director of the SEC’s Division of Enforcement. “That simple truth underlies our renewed focus on identifying and charging firms and individuals that fail their legal obligations to maintain adequate compliance programs.”

Carlo di Florio, Director of the SEC’s Office of Compliance Inspections and Examinations, added, “When SEC examiners identify compliance deficiencies, firms are expected to remediate them. The Commission will take enforcement action against registrants that fail to do so.”

Advisers would be prudent to take a look at their compliance programs and see if they are up to the SEC test. If not, be proactive, time and money spent now can minimize your exposure to regulatory deficiencies and possibly fines. If your program is sound, try running a mock audit and see if you can produce everything the SEC would request in a timely manner. Compliance should be an everyday mindset, not a fire drill.

SEC Charges Prominent San Diego Financial Planner with Fraud

Full and complete disclosure to your clients is a critical component of your advisory business. This was illustrated perfectly today when the SEC charged a prominent San Diego-based financial advisor with fraud, accusing him and his firm of failing to disclose to clients a conflict of interest in an investment and lying to and misleading clients about a hedge fund he manages.

The defendant, Kevin O’Rourke, is the founder and president of Western Pacific Capital Management in Del Mar, Calif. He was named a top wealth manager by San Diego magazine in 2008 and 2010. He does not believe he did anything fraudulent and plans to fight vigorously to defend himself. However, this will cost him time, money and reputation. It takes a life time to build a reputation and just a few minutes to sully it.

Most advisors would never intentionally defraud their clients. They work very hard to do what is in their client’s best interests. They want to do all the right things, but sometimes it’s hard to know exactly what to do. The Rules are not always black and white, but subject to interpretation. That is why Advisors need knowledgeable compliance people to help them to make appropriate decisions in these gray areas. Unfortunately, knowledgeable compliance people are not inexpensive or plentiful. But they are worth their weight in gold when you compare their cost to the cost of enforcement. It has traditionally been difficult for compliance officers to measure their worth to the organization by the fine they did not receive or the deficiency that didn’t occur. But today’s action speaks to the need for compliance professionals to partner with Advisers to do what’s right for the client. Today should be the day that you thank your compliance team for protecting your reputation.

To read the full article, click here.

Rules for Registration of Securities-Based Swap Dealers and Major Security-Based Swap Participants

Based upon Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Securities and Exchange Commission voted this week to propose rules that lay out the process where security-based swap dealers and security-based swap participants must register with the Commission. This proposal is now open for comment.

During the SEC’s open meeting to announce this, SEC Chairman Mary L. Schapiro commented, "Registering the major market participants in the largely unregulated security-based swap markets is a critical step toward better protecting investors. Today's proposal draws from our experience with registration rules regarding broker-dealers - rules that are familiar to many market participants."

The proposed rule will be published in the Federal Register with a 60-day public comment period. The Commission will then review the comments it receives and consider those comments in determining whether to adopt the proposed rules.

To read the entire article, please click here Registration of Securities-Based Swap Dealers and Major Security-Based Swap Participants.

Social Media Sites for Registered Investment Advisers

It is official, social media madness has taken over. Do you feel like you are behind the times because you do not have a social media presence? Not sure how to approach this hot topic? Social media sites are useful business tools for investment advisers. However, you have to decide how much time you want to devote to social media and what the compliance concerns are surrounding its use.

So far the only guidance has come from FINRA, but the US Securities and Exchange Commission ("SEC") has done sweeps and definitely has this on their radar screen. While the SEC has not released any specific guidance on this topic, there are existing rules that investment advisers should be familiar with when using social media. Rule206(4) of the Investment Advisers Act of 1940 considers any information posted online by an adviser to be an advertisement. This means that all profiles and posts to social media sites would be considered advertisements that are subject to all the advertising regulations. This includes all the disclosure requirements, especially as it relates to performance.
Rule206(4)-1 of the Investment Advisers Act of 1940 prohibits testimonials so advisers have to be careful about allowing comments on their sites by clients. LinkedIn allows users to make recommendations. While these recommendations are good for promoting your business, they are considered testimonials by the SEC and are prohibited. The "Like" functionality on Facebook is another issue. The SEC will probably consider this to be a testimonial as well so this feature should be prohibited.

Remember, record retention is part of the SEC requirements and it can be quite challenging to capture all the changes that have to be archived from social media sites. This includes the instant messenger features as well as emails to and from these social media sites. You need to have a way to capture it and maintain it for not less than five years from the end of the fiscal year during which the “adviser last published or distributed the advertisement”.

While this is by no means a complete listing of everything you should take into consideration before joining the social media frenzy, it’s a good starting point.

Congress Hearing on Investment Advisor SRO

On September 13th , the House Committee on Financial Services held a hearing to discuss forming a self-regulatory organization ("SRO") for investment advisers. There have been three options floating around about this issue and the committee looked at these three options: (1) have the U.S. Securities and Exchange Commission ("SEC") charge a user fee to help fund the need for more frequent regulatory examination, (2) create an independent SRO to regulate investment advisers, or (3) give FINRA the authority to serve as the investment adviser SRO. There were eight individuals that testified in front of the Committee. The breakdown of the opinions of these individuals was very interesting. You can see what their thoughts were in the chart below: