Speech by SEC Staff:
Remarks before the Fund of Funds Forum
Gene A. Gohlke1
Associate Director Office of Compliance Inspection and Examinations
U.S. Securities and Exchange Commission
New York, NY
November 14, 2005
SEC Expectations for Regulatory Compliance
Good afternoon. I am pleased to be here and have this opportunity to talk with such a large group of people that are involved with the management and operations of funds of hedge funds. Some and perhaps many of you are from firms that have recently or that will in the near future be registering with the SEC as investment advisers. Others of you work for firms that have been with us for many years. For those of you in the first two groups I welcome you to the community of registered advisers. Because we will now be working with each other on a more regular basis, I think it is particularly appropriate to talk about the subject of regulatory compliance. Regulatory compliance is an area we pay much attention to as we interact with advisers. You and your firms should plan to focus attention on this area as well.
During the next 30 minutes, I will talk about conflicts of interest in the investment advisory business and the relatively new SEC rule that provides some guidance regarding how advisers should manage their conflicts of interest and other activities that may cause them to violate the Investment Advisers Act of 1940. I will also talk about our inspection program for advisers and then end with some thoughts, actually 10 points, advisers should consider in preparing for an SEC inspection. During the remaining 30 minutes or so, we can engage in a dialog following a question and answer format.
Before I go further, I must give the standard SEC disclaimer, which is:
"My remarks represent my own views and not necessarily the views of the Commission, the individual commissioners or my colleagues on the Commission's staff."
Before getting into the subject of conflicts of interest, I thought it would be useful to cover some background information about our current population of registered advisers.
As of October 31, 2005 9,057 advisers were registered with the SEC. That is an increase of almost 6% from the same time last year. Based on information filed by advisers on Form ADV and compiled in the IARD database, 4,300 or 47% of these advisers told us that either they or an affiliate managed a private investment fund.
The IARD database shows that the total number of private investment funds managed by registered advisers and their affiliates was about 10,000 and the total assets of these private funds was about $1.5 trillion. There is clearly some amount of double counting in these numbers. Nevertheless, the amount of private fund assets managed by registered advisers and their affiliates is substantial on an absolute basis but is still relatively small in relation to the total $27 trillion of assets under management by all SEC registered advisers.
Now having "done the numbers", lets move on and consider conflicts of interest in the context of regulatory compliance.
CONFLICTS OF INTEREST
Conflicts of interest - "they are everywhere" and are particularly prevalent in the investment advisory business because investment advisers have a fiduciary relationship with their clients. As fiduciaries, advisers must put clients' interests first when making decisions and undertaking transactions affecting clients' assets and other interests. From what I know about the advisory business, most of the activities in the average shop affect client interests, so conflicts of interest are factors that every adviser should have on its radar screen.
Some of the areas in which conflicts of interest may exist in the business of fund of hedge fund managers:
- Allocations of investment opportunities among clients.
- Fund manager's relationships with managers of one or more of the underlying hedge funds.
- Manager's affiliate's banking and investment banking relationships with issuers of securities held in underlying hedge funds.
- Advisers to underlying hedge funds purchasing for those funds interests in instruments underwritten or distributed by a fund manager or its affiliates.
- Proprietary trading by the manager or personal trading by its staff.
- Side letter agreements with certain investors in a managed fund.
- Valuations of interests in underlying funds held by a fund of hedge funds.
- Calculation of fund of hedge funds' performance numbers especially when performance that is below a high water mark is the only factor preventing an adviser from getting an incentive allocation.
I know of only two ways in which advisers can handle their conflicts of interest and remain within an acceptable level of regulatory compliance:
- Eliminate the arrangements or activities that create the conflict
- Disclose each conflict fully and fairly and then manage the adviser's affairs so impact of a conflict on clients and fund investors will be consistent with the disclosures made.
Considering the conflicts listed above, I think it would be very difficult for most advisers to eliminate such conflicts and stay in business. Thus, the only alternative remaining for most advisers is to identify, disclose and effectively manage their conflicts of interest.
Unfortunately, we have seen numerous instances in which advisers have failed to disclose or manage one or more of their conflicts and the frequent result is that clients are harmed. A few examples of these rather common situations include:
- Adviser uses clients' assets to get products and services that are well outside the safeharbor for research.
- Advisers use clients' assets to encourage referrals from brokers of clients or fund investors.
- Advertised performance is inappropriately inflated so as to make the firm or its managed funds more attractive to prospective clients or fund investors.
- Certain profitable investment opportunities are allocated to insiders' accounts rather than to clients.
- Certain profitable investment opportunities are allocated to clients with performance fees while clients that do not pay performance fees do not participate in these opportunities.
Because conflicts of interest are so widespread and are often a subtle and "natural" part of an adviser's regular business, advisers can easily overlook certain conflicts of interest until a bad situation happens and the firm has a significant regulatory problem or client litigation. Therefore, advisers ought to devote considerable attention to identifying, disclosing and managing their conflicts of interest if they want to be in business for the long term.
Almost two year ago, the Commission adopted Rule 206(4)-7, the "Compliance Rule" because, as stated in the release accompanying the Rule, the Commission was concerned that many advisers were not paying sufficient attention to their fiduciary duties and conflicts of interest that can cause them to violate the Advisers Act. This rule applies to all SEC registered advisers.
The Compliance Rule requires that advisers do three things:
- Establish a set of policies and procedures that are designed reasonably to prevent violations of the Advisers Act; the accompanying release states that these policies and procedures should also be designed to:
- Detect violations of the Advisers Act that have occurred and,
- b. Correct promptly any violations that have occurred.
- Review, no less frequently than annually, the operation of its compliance program and make whatever changes are needed to ensure the program's continued effectiveness.
- Designate a Chief Compliance Officer, a CCO, to administer its compliance program.
While the rule is very specific in requiring advisers to establish compliance programs and designate CCOs, the rule does not mandate specific compliance policies and procedures. Nor does the rule lay out the specific responsibilities that attach to the position of CCO. The rule gives advisers wide latitude in these areas to establish the specifics of their compliance programs and the duties of their CCOs so that each program can be finely tailored to reflect the specific facts and circumstances and address the myriad conflicts of interest, of each individual firm.
The release accompanying the rule does identify nine areas in which there is potential for significant compliance breeches and directs that advisers give particular attention to these areas in developing their compliance policies and procedures. These areas are:
- Portfolio management processes.
- Trading practices.
- Proprietary trading and trading by insiders for personal accounts.
- Disclosures to clients including fund governing entities.
- Safeguarding clients' assets.
- Valuation of clients' assets.
- Accuracy and safeguarding of information including client information.
- Marketing activities.
- Business continuity plans.
The release accompanying the compliance rule also provides some guidance regarding how advisers should go about establishing their compliance programs.
Risk Assessment: The Release suggests that a starting point in creating policies and procedures begins with identifying all of the conflicts of interest that might arise from the transactions, situations, and arrangements present in an adviser's business and how the Advisers Act could be breeched as it staff does its work. This process is often called risk assessment and the output of this process an "inventory of risks".
Creating Policies and Procedures: Once an adviser has identified and assessed the risks present in its business, it is then in a position to draft policies and procedures to address each of these risks. These policies and procedures, which should include relevant supervisory procedures, provide guidance to advisory staff regarding how risks should be handled to comply with the Advisers Act. These policies and procedures should also include the methods by which the adviser will identify breeches that will inevitably occur as a result of mistakes, misinterpretations and deliberate actions to try and circumvent these policies and procedures.
Although not discussed in the Release, one of the means advisers can use to identify violations of the Advisers Act is quality control testing - that is, transaction by transaction testing coupled with exception reporting to management responsible for an activity. Another is forensic testing - or periodic testing that is focused on evaluating whether the outcomes of operational and investment activities over time are consistent with expectations.
Implementation: An adviser's compliance policies and procedures should be implemented in ways that recognize principles of sound management and effective internal controls. These principles include such factors as clear assignment of responsibility for activities and control points to individuals, separation of functions to establish a system of checks and balances, exception reporting to identify outlier conditions and a process for escalation or taking situations up the chain of command for consideration and resolution at an appropriate level of authority.
Observing and following the guidance and requirements covered in the Compliance Rule and its accompanying release, together with a common sense evaluation of an adviser's business practices and its relationships with affiliates and business partners, should assist advisers in achieving a high level of regulatory compliance. Following this guidance should also allow firms to handle effectively the conflicts of interest that are an inherent part of their business. Advisers should be aware, however, that achieving this goal requires the active participation and support of a firm's entire staff including its senior management.
To work through a short example of how an adviser's process might work in creating its compliance program, let's take a closer look at how an adviser to a fund of hedge funds might go about establishing a compliant process for valuing the fund's assets.
The adviser should begin by having staff that will be involved with valuations, as well as its risk manager and CCO, work though the conflicts of interest and other valuation issues that might arise that would cause the valuations used to be inaccurate and possibly violate the Adviser Act. Important considerations this group should keep in mind are the disclosures the fund has made to its investors regarding its valuation policies. A number of the issues that this group would/should consider are listed in the Attachment.
Once these and other possible risks/compliance issues are identified, knowledgeable staff of the adviser should then create policies and procedures that address each of these risks. Such policies and procedures might include some or all of the good practices shown in the Attachment.
After these policies and procedures have been adopted, they should then be implemented using recognized principles to achieve effective management of the fund's valuation processes and control over the NAVs calculated and reported to fund investors.
In addition to directing advisers to establish and maintain effective compliance policies and procedures through rulemaking, the SEC exam staff also checks up on what advisers are actually doing in regard to regulatory compliance by conducting a program of oversight examinations. Our examinations involve both on-sight visits to advisers' offices and mailed requests that information be provided by return mail. Exam staff anticipates including all newly registered advisers to private investment funds within our existing inspection program. Our inspection program includes several different types of examinations.
Cause exams. These are exams triggered by complaints, tips, media reports and output of our risk assessment processes that identify specific advisers or funds that have a high probability of problematic activities such as making misleading disclosures, using false performance information to lure clients, stealing investment opportunities from clients or outright theft of clients' assets. Conducting these exams has the highest priority and the focus of these exams is on the questionable conduct that led us to the firm.
Routine exams. Exam staff divides the population of registered advisers into two groups; those with high and low risk profiles and conduct routine exams of firms in each group.
Firms are rated as high risk based on three criteria:
- Amount of assets under management,
- Responses in Form ADV, and
- Existence of a weak compliance environment.
Exam staff thinks advisers with a higher risk profile need frequent scrutiny and we accomplish that objective by planning to conduct a routine exam every three years.
Firms rated lower risk include all remaining advisers. The lower risk firms are not examined on a cyclical basis. Instead, firms in this group that are to be examined during a year are selected randomly from the population of lower risk firms. By using a random selection methodology, any firm in the population is subject to being selected for an exam in any year. Because of the statistical approach used to select these firms, results of these exams are used to benchmark our risk assessment procedures and also to identify emerging risks or new developments that may need further evaluation by SEC staff.
As part of each routine exam, exam staff also inspects all registered funds and the books and records of private funds managed by the adviser. Examiners review and evaluate the effectiveness of compliance policies and procedures and interact with adviser and fund CCOs. Examiners focus their attention on areas within these firms where they perceive the existence of significant conflicts of interest. Examiners also conduct forensic tests in critical areas, those areas of the firm in which there are significant conflicts of interest or where hidden schemes and arrangements might flourish. One of the outcomes of these routine exams is an updated risk rating of the adviser and any registered funds it advises. These exam-based risk ratings are developed based primarily upon our evaluation of the advisers/funds' compliance program and compliance culture.
Risk Targeted Sweep exams. These exams are designed to probe areas of emerging or resurgent risks that examiners identify. Such risks may be identified through our internal risk assessment program or may be an area of concern identified during one or more routine exams that we may want to explore on a broader basis. Examiners start a sweep depending on issues that arise and the number started will vary from year to year. The results of each sweep are reported to the Commission and occasionally a public report is issued. Where appropriate, we intend to summarize our observations from a sweep in a new publication called the CCObserver that the staff will be producing for adviser and fund CCOs.
COMMUNICATING EXAM FINDINGS
After the work on an exam has been finished, the exam team will typically communicate the results of its work to the adviser using one of two types of letters (in addition to conducting an exit interview during which examiners will orally summarize major issues identified during the inspection). The most frequently used letter is called a "deficiency" letter. In such a letter, the exam team summarizes the compliance issues it has identified that need corrective action by the firm and asks the firm to respond to the letter in writing with a description of the actions it has, is or intends to take to address the issues raised.
The second type of letter used is called a "no further action" letter. As its name implies, this letter tells the firm that the exam work has been completed and there are no outstanding issues that the staff needs to bring to the firm's attention.
Let me digress a moment here and note that this type of letter merely indicates that an exam has been completed without the need for further action. The letter does not say or imply that the firm has no compliance issues, but only that there are no such issues that the exam team is aware of that need to be brought to the firm's attention for remedial action at that time. If your firm receives such a letter and is tempted to advertise it or post it on your website, keep in mind Section 208(a) of the Advisers Act, which generally states that it is unlawful for a registered adviser to represent or imply that it has been sponsored, recommended, or approved by any agency of the United States.
STEPS TO TAKE TO PREPARE FOR AN SEC EXAM
During a typical year, exam staff conducts inspections of 1,200 to 1,500 advisers, depending on the mix of exam types and the issues identified during these exams. Even though many of these exams are conducted of advisers selected randomly, there is a good likelihood that your firm will be selected for an inspection. There are a number of steps that in my opinion an adviser can take to prepare for the day when the firm will be visited by an SEC exam team.
Of course, following these steps won't guarantee receipt of a "no further action" letter, but I suspect they might help the exam process go more smoothly. I also suspect that my list might look quite different from the advice given by outside counsel that you often hear presented at conferences. If you listen closely, however, I think you will hear a refrain throughout my list: compliance needs to start long before an SEC exam of your firm is scheduled to have any hope of receiving a no further action letter at the completion of the exam.
- Senior management establishes and maintains an effective, compliance oriented, tone at the top, which is the basis for establishing a robust culture of compliance throughout the firm.
- The firm creates, implements and updates an effective compliance program that covers all aspects of its activities and addresses all conflicts of interest on a continuing basis.
- An essential aspect of the firm's compliance program is the application of forensic tests in critical areas that may harbor possible illegal acts, schemes and arrangements.
- The firm designates a CCO that is knowledgeable regarding the Advisers Act, competent regarding compliance programs and issues and is empowered to require compliance by all staff of the adviser.
- The firm's CCO is an effective advocate for and consultant on compliance matters through out the firm, has the full support of senior management and is the "go to" person for compliance issues.
- Responsibility for implementing compliance policies and procedures is specifically identified with individual managers at all levels throughout the firm and these persons are held accountable for effectively supervising their staff in the implementation of compliance policies and procedures and for compliance failures in their areas of responsibility; firm's CCO ensures that firm's compliance policies and procedures, including those for detecting and correcting problems, are being effectively implemented by the firm's business people.
- Appropriate attention is given to ensuring that full and fair disclosures to clients/fund boards of all material conflicts of interest are made on an ongoing basis.
- Adviser acts promptly to remedy the inevitable compliance breeches that occur and uses such events to evaluate whether their occurrence indicates the existence of compliance weaknesses that need to be addressed.
- Firm is aware of the usual range of information staff requests during inspections and is prepared to respond promptly and fully to specific requests for documentary information including appropriate and timely handling of information that may be protected under the attorney-client privilege.
- Managers and other staff throughout the firm are ready and able to respond fully to staff questions raised during discussions; the relationship between examiners and staff of the firm is cordial and cooperative and not adversarial.
Conflicts of interest - they are everywhere in the advisory business. The astute adviser recognizes this fact and creates a culture of compliance within the firm that includes a compliance program that effectively and proactively addresses these conflicts as well as all other factors that may cause the firm to violate the Adviser Act and designates a knowledgeable, competent and empowered CCO to administer its compliance program. In my view, advisers who do these things, while not anxious to undergo an SEC inspection, should have little at risk if such a visit takes place and should have more than an even chance of concluding the experience with minimal or no comments from the exam staff regarding significant regulatory compliance issues that need to be addressed.
Good Practices Fund of Hedge Fund Valuation/Calculation of Nav
- Over or understated NAVs that could occur if valuation policies and procedures used by an underlying hedge fund are weak, circumvented or deliberately ignored by its manager in calculating that fund's NAV.
- Non-current valuations from underlying funds are not recognized as such and are used to calculate the NAV of the fund of funds.
- Fund of hedge fund manager inflates value of one or more underlying funds in calculating NAV to keep performance of fund of funds above a high water mark so an incentive fee can be charged.
- The fund of funds fair value procedures may not be implemented timely, fully or fairly.
- Mistakes are made in calculating a fund's NAV or in allocating a fund's net assets among its owners.
Policies and Procedures
- Fund of funds will only invest in underlying funds that give portfolio transparency.
- Fund of funds will only invest in underlying funds whose financial statements are audited by an accounting firm active in the hedge fund industry.
- Fund of funds will only invest in underlying funds that use an independent administrator to value holdings and calculate NAV.
- Fair value procedures are to be adopted by and can only be changed with approval of the fund's governing body or entity.
- Fair value procedures provide guidance on when they are to be used.
- NAVs reported by underlying funds are compared to summary information contained in audited financial statements and tax reporting forms provided by underlying funds and discrepancies are followed up and resolved.
- Monthly performance and change in NAV of each underlying fund is analyzed in the context of expectations of what performance of the underlying fund should be in light of each fund's objectives and sector investments and market returns in those sectors during the month. All outlier conditions are investigated and resolved.
- Differences between NAVs of underlying funds used to calculate fund of funds NAV and realized NAVs used to price interests in underlying funds which are redeemed are analyzed to determine if, over time, patterns of over or under valuation are evident.
- Regular testing is conducted of differences between fair values used in place of actual NAVs for underlying funds and subsequent NAVs reported by underlying funds to determine if, over time, patterns of over or under valuation are evident which may require changes in fund of funds fair value procedures.
- Over longer periods of time, actual returns in market sectors in which underlying funds are invested are compared to changes in NAV reported by such underlying funds and to the reported performance of the fund of funds to look for discrepancies that may be indicative of valuation issues by either underlying funds or the fund of funds.