Displaying items by tag: SEC

Regulators are looking to get more aggressive about enforcement of Regulation Best Interest (Reg BI) which was passed in 2020. Regulators are particularly focused on sales practices to ensure that fiduciary standards are followed according to a Thomson Reuters article by Richard Satran.

Reg BI mandates that recommendations are offered with impartial advice and explanation of alternatives, including to competing firms. Along with the SEC, Reg BI has also been adopted by the Financial Industry Regulatory Authority (FINRA). 

One challenge for firms and regulators is that automated monitoring of transactions to ensure compliance is lacking. According to Parham Nasseri, VP in product and regulatory strategy at compliance software developer InvestorCOM, Inc: “Putting the risk assessments into a surveillance system for Reg BI compliance involves significantly more challenges than the kind of monitoring that systems have done in the past.” 

New elements to monitor include conflicts of interest, customer profiles, costs, alternative investments, and other client-specific factors. Along with the technological challenges, firms will have to comply with new exam requirements to comply with new sales practice rules. 

Finsum: Reg BI was passed in 2020 but regulators were slow to begin aggressive enforcement given the pandemic. This is changing and firms will be forced to rapidly update sales practices, training, and monitoring.

On Tuesday, the Securities and Exchange Commission announced its examination priorities for 2023. The agency said it is going to focus on Regulation Best Interest, ESG, the new marketing rule, and a host of other issues. When it comes to investigating Reg BI violations, the SEC will zero in on advisors’ recommendations on complex investments such as derivatives and leveraged ETFs, and high-cost and illiquid products such as annuities and nontraded REITs. According to the division, SEC examiners analyzing Reg BI will look at investment advice and recommendations, disclosures made to clients, the processes firms have in place for making best-interest recommendations, and the kind of factors that are considered in light of an investor’s profile, including their goals and account characteristics. The report stated, “Examinations may also focus on recommendations or advice to certain types of investors, such as senior investors and those saving for retirement, and specific account recommendations, such as retirement account rollovers and 529 plans.” The division will also be focusing on the SEC’s new marketing rule, which reached its compliance date last November after taking effect in May 2021. Examiners will be looking at whether advisors have adopted written rules and procedures that “are reasonably designed” to prevent rule violations. Several experts also believe that SEC examiners will expect firms to apply Reg BI standards to ESG recommendations.

Finsum:The SEC's Examinations Division released its annual Exam Priorities this week, detailing its areas of focus for 2023, which includes Reg BI, ESG, and the new marketing rule.

On Monday, the Securities and Exchange Commission warned that broker-dealers are using outdated systems to ensure Regulation Best Interest compliance, resulting in violations in areas such as rollover and account recommendations. In a recently released Risk Alert, the SEC’s exam division points to several compliance deficiencies that it has found during exams. Following Reg BI’s June 30, 2020, compliance date, the Division of Examinations started conducting broker-dealer exams to assess compliance with the rule. The risk alert calls attention to deficiencies noted during exams, and examples of weak practices that could result in deficiencies. The Risk Alert stated that moving forward, the exam division intends to incorporate compliance with Reg BI “into retail-focused examinations of broker-dealers, particularly those that include sales practices within the scope of the examination.” According to the SEC, broker-dealers are relying “heavily on surveillance systems that existed before the effective date” of Reg BI “without considering whether those systems needed modification.” The SEC also found conflict of interest failures such as broker-dealers not having written policies and procedures on how conflicts are to be identified or addressed and failures to disclose information on website postings. Other failures included registered reps acting in multiple roles, and the failure to disclose that these “multiple relationships require disclosures of capacity and may require additional disclosure of conflicts.”

Finsum:The SEC recently issued a Risk Alert, warning broker-dealers that they are using outdated systems to ensure Reg BI compliance, resulting in violations in rollover and account recommendations.

Last year was a notable year for ESG investing. While ESG funds dealt with underperformance, anti-ESG initiatives, and regulation, demand continued to be strong for these funds. This year could be just as eventful for the strategy. First, there were record numbers of shareholder resolutions filed at public companies last year due to the SEC’s friendlier stance on them. That is expected to continue as companies set climate-related targets and shareholders press them on ESG matters. Second, while 57% of institutions expect the energy sector to outperform the market again this year, according to Natixis’ Global Survey of Institutional Investors, 46% said that they are increasing investments in renewables, twice the rate of those increasing investments in fossil fuels. Third, while the SEC has proposed a set of rules designed to help curb greenwashing, firms have a bigger motivator to stop, sweep examinations. According to Michael McGrath, a partner at K&L Gates, “That has had a greater impact on the approaches of firms to their ESG marketing actions thus far than have the new rules. That’s really because firms have an immediate concern that needs to be addressed.” The last theme to watch is anti-ESG initiatives. Asset managers that are focused on sustainable investing will have to accept the fact that they may not be competitive in some markets.

Finsum:2022 was a highly eventful year for ESG investing and this year will be no different due to themes such as shareholder resolutions, increased investments in renewables, SEC sweep examinations, and continued anti-ESG initiatives. 

According to a report by US SIF Foundation, a trade group for the sustainable investment industry, the U.S. market for ESG products is less than half of the size previously reported. Assets in U.S. sustainable investments fell 51% from $17.1 trillion at the beginning of 2020 to $8.4 trillion at the start of 2022. The difference is mainly due to changes in the methodology used to calculate the numbers and the impending tightening of regulation, according to the trade group. Ahead of new fund labeling rules by the SEC, the foundation noted that asset managers were being “more circumspect in what they consider to be assets that incorporate ESG criteria”, which led to “modest to steep” declines in ESG AUM reported compared to 2020. In addition, the 2022 report made a new distinction between firm and fund-level claims to sustainability. For example, it did not include “The AUM of investors that stated they practice firm-wide ESG integration without providing additional information on specific ESG criteria that are used in decision-making and portfolio construction.” Rather, they only included the assets of investors or vehicles that “incorporate one or more specific ESG criteria, plus the assets of funds which specify that ESG or sustainability is integral to its decision-making or portfolio construction.”

Finsum:Due to impending regulatory changes and a new calculation methodology, the U.S. market for ESG products is less than half of the size previously reported.