Displaying items by tag: SEC

Providers of ETFs that invest based on principles of environmental, social, and governance (ESG) are facing headwinds from multiple sides. First, they are about to be hit with a batch of new rules from the SEC. Secondly, they have been put directly in the middle of a political battle between those for ESG and those who think it is just woke capitalism. On the SEC front, the agency recently published the results of two consultations. The first was on proposals to change the so-called Names Rule. The SEC wants to strictly define how a fund’s constituent investments should be reflected in its name. The second was on proposals for requirements on ESG disclosures for investment advisers and investment companies. On the political front, Florida passed a resolution in August that bans its pension fund managers from considering ESG with regard to their investing strategies. During the same month, Texas criticized BlackRock and nine European financial groups for boycotting the fossil fuel industry.

Finsum:ESG ETF providers are facing criticism on both the regulatory and political fronts.

At the 2022 PLANADVISER National Conference, which was recently held in Scottsdale, Arizona, three staffers from the SEC provided an in-depth discussion on multiple topics, which included best practices that firms should consider putting in place to avoid any Reg BI issues. According to the SEC staffers, under Reg BI, when making a recommendation to a retail customer, a brokerage professional must act in the best interest of the retail customer at the time the recommendation is made, without placing their own financial or other interests ahead of the retail customer’s interests. Their recommendations included: avoiding compensation thresholds that disproportionately increase compensation through incremental increases in sales, minimizing compensation incentives for employees to favor one type of account over another, eliminating compensation incentives within comparable product lines, and implementing supervisory procedures to monitor recommendations.

Finsum:At a recent conference, three members of the SEC provided a list of recommendations for advisors to implement to avoid running afoul of Reg BI.

According to the SEC’s draft strategic plan for the next four years, the agency plans on shifting its enforcement focus regarding Reg BI to “making a recommendation.” The SEC’s Strategic Plan for 2022-2026 states that the agency intends to bring cases that matter to “all parts of the SEC’s mission.” This includes failure to act in a retail customer’s best interests when making a recommendation, among other items. Kurt Gottschall, a partner in Haynes Boone, and a former director of the SEC’s Denver Regional Office told ThinkAdvisor that the language “indicates the SEC is ready to move beyond basic compliance and disclosure obligations to scrutinize the placement of retail investors’ funds in advisory versus brokerage accounts, whether complex or risky products were offered to those investors, and registered representatives’ consideration of costs.”

Finsum:Based on the language in the SEC’s four-year strategic plan, advisors and Broker-dealers will need to pay more attention to compensation arrangements and product placements.

Fund giant BlackRock is warning regulators that the SEC's new proposed rules to fight greenwashing by fund managers could create more confusion and lead investors to think their holdings are more socially conscious than they are. Specifically, the firm is concerned over a key detail in the proposal that would require managers to say how ESG issues fit into strategies that also consider other factors. It sent a letter to the SEC arguing that the detail could mislead investors about how much environmental, social, and governance issues factors into stock and bond decisions. The SEC had proposed new regulations for ESG funds in May, which are expected to be finalized in the coming months. BlackRock’s argument has been echoed by industry trade groups such as the Investment Company Institute and the Managed Funds Association. However, these arguments are unlikely to stop the SEC’s crackdown on ESG labels.

Finsum:Blackrock sent a letter to the SEC warning that the new proposed rules on ESG labels will only muddy the waters.

Western International Securities Inc., which is the first broker-dealer to be sued by the SEC for alleged violations of its Regulation Best-Interest fiduciary rule, is expected to spend at least $1 million on its defense. The broker-dealer is accused of failing to meet its fiduciary obligations by selling $13.3 million in high-risk, unrated junk bonds that were not in the best interest of retirees and other risk-averse retail customers. Western said it plans to “actively defend” itself against the SEC’s allegations. Brian Rubin, a partner at Eversheds Sutherland LLP, estimated that Western’s legal fees will cost anywhere from several hundred thousand dollars to well over $1 million. He believes that it’s likely that the SEC demanded too much to settle due to it being its first Reg BI enforcement case. Since the conduct took place after the effective date of Reg BI in June 2020, the SEC brought the charges under Reg BI as opposed to its predecessor suitability standard. 

Finsum: Western International Securities is expected to spend at least $1 million on attorney fees as it fights the first Reg BI lawsuit.