COMPLY-Five ways advisers can prep for their first U.S. SEC exam

Thu Jan 16, 2014 8:00am EST

Jan 16 (Reuters) - The top U.S. securities regulator says its examiners will finally get around to knocking on doors at some of the thousands of investment advisers it has never met, including some waiting for more than a decade for the agency to come calling.

While the U.S. Securities and Exchange is responsible for overseeing most independent investment advisers, it doesn't examine the vast majority of them often, and some, not at all. The agency, which examines about 9 percent of roughly 11,000 investment advisers per year, has long argued that it does not have enough examiners, or the budget, to keep up with the industry's growth.

The new focus - raised after years of criticism that some advisers are slipping through the cracks - is not a guarantee that the SEC will actually visit a neighborhood near you. But it is certainly a wake-up call to prepare for whatever questions examiners may throw, compliance professionals say.

The SEC's focus on "never-before examined advisers" is one of the agency's 2014 examination priorities, according to a list published by the SEC's Office of Compliance Inspections and Examinations (OCIE) on January 9.

These advisers tend to counsel individual investors and are not the same as the roughly 1,500 other advisers who counsel hedge funds and private equity funds and are subject to a different type of SEC exam program.

The agency is honing in on some 1,000 traditional investment advisers who have been registered with the SEC for more than three years, but who were never examined, according to Jane Jarcho, who heads OCIE's exam program for investment advisers and investment companies. There are roughly 11,000 investment advisers registered with the SEC.

The SEC will tackle exams for advisers it never reviewed in two ways: a broad look at some firms, to determine risks, such as shoddy supervision, they may pose to the investing public. At other firms, examiners will dive deeply into one or two areas, such as marketing or managing conflicts of interest.

Firms at which the SEC uncovers problems typically have a chance to make things right, such as reimbursing excess fees to customers. But examiners often refer egregious violations to the SEC's enforcement division, which can fine or suspend advisers.

Not all compliance professionals are convinced that the SEC will have the resources it needs to plod through everyone on its list. "In my mind, it's fifty-fifty whether they'll actually pull it off," said Steven Thomas, director of Lexington Compliance, a Sioux Falls, South Dakota-based consultancy for investment advisers.

A $1.1 trillion spending bill unveiled by U.S. lawmakers on Tuesday suggests that Thomas may be right. It would allot the U.S. Securities and Exchange Commission $1.35 billion for the fiscal year ending September 30, 2014. An SEC spokesman said the figure could limit the agency's ability to bolster its enforcement and examinations programs.

Nonetheless, investment advisers should prepare, even if they ultimately never hear from the agency, said Nancy Lininger, head of The Consortium, a compliance consultancy in Camarillo, California. The risk of not being prepared is too steep, Lininger said, especially given a new focus on robust enforcement by new SEC Chairwoman Mary Jo White.

Advisers can prep by directing their compliance officers to do these five things now:

1. Organize the basics: There are some records that the SEC typically wants to see, so don't put yourself in the position of scrambling for them at the last minute, says Korrine Kohm, a vice president with Ascendant Compliance Management in New York. For example, employees should complete a questionnaire every year about their compliance with the firm's policies and procedures. That may include answering questions about whether they've made political contributions, a violation that can prevent advisers from doing business with government clients for two years. Employee questionnaires are easy to catch up on if firms are behind, Kohm says.

2. Review your firm's public disclosure document: Businesses change, but many firms never update information about their business that they file with the SEC in the mandatory disclosure known as Form ADV, said Kohm. Big changes that advisers sometimes neglect to report are a spike in their assets under management or getting into an additional line of business, such as managing a new private fund, Kohm says.

3. Test yourself: Study lists of information and documents the SEC requested in examination letters it previously sent to other firms, says Salvatore Faia, president of Vigilant Compliance, LLC, a consultancy in Philadelphia. You can get them from compliance consultants and organizations such as the National Society of Compliance Professionals, who often keep redacted copies of letters as resources for clients and members. Then, try to gather the same information in a "mock process" at your own firm, says Faia.

4. Update and tailor your compliance manual: Many investment advisers, especially one or two person shops, buy pre-packaged compliance manuals that outline polices for everything from disclosures to archiving e-mails. But these manuals typically do not align with a firm's specific business model, says Brian Hamburger, president and chief executive of MarketCounsel, a compliance consultancy in Englewood, New Jersey.

For example, a firm that pursues a new type of business, such as advising an employer-sponsored retirement plan, should update the manual to include policies for complying with regulations in that practice area, Hamburger says.

5: Clear the compliance officer's plate: Chief compliance officers often have too many other jobs, said The Consortium's Lininger. For example, they many also be the firm's rainmaker and chief technology officer. Playing catch-up at a firm that has never been examined, especially this year, can be even more overwhelming to a compliance officer who has two other jobs, said Lininger. Make a business decision to shift the extraneous work to others or hire more help.