In a bold move aimed at strengthening the integrity of the financial industry, the U.S. Securities and Exchange Commission (SEC) has recently announced a series of charges against several broker-dealers, dually registered broker-dealers and investment advisers, as well as affiliated investment advisers. The common thread? A failure to maintain and preserve essential electronic communications.
The SEC’s investigations revealed a disturbing trend among these firms, with employees engaging in unauthorized communication methods known as “off-channel communications.” From text messages to other personal channels, these employees were found to have discussed their employers’ business matters outside the scope of approved communication channels.
The SEC’s crackdown was not limited to the firms themselves. The investigations also uncovered that the investment adviser firms’ employees were exchanging off-channel communications related to recommendations, proposed advice, and advice given to clients. This breach of trust and transparency was a clear violation of the SEC’s recordkeeping provisions.
The consequences of these compliance failures were swift and severe. The SEC imposed significant financial penalties, totaling more than $81 million, on the sixteen firms involved. But the punishment did not stop there. Each firm was ordered to cease and desist from future violations and received a formal censure, a stain on their reputation that could have far-reaching implications.
To ensure that these firms address the root causes of their non-compliance, the SEC has mandated that they retain independent compliance consultants. These consultants will be tasked with conducting comprehensive reviews of the firms’ policies and procedures regarding the retention of electronic communications on personal devices. Additionally, they will assess the firms’ frameworks for addressing employee non-compliance with these critical policies.
The SEC’s crackdown on these recordkeeping violations serves as a stark reminder of the importance of maintaining robust compliance practices. Firms that fail to prioritize the proper management and preservation of electronic communications risk facing severe financial and reputational consequences. As the financial industry continues to evolve, the SEC’s unwavering commitment to oversight will undoubtedly shape the future of compliance and investor protection.
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Mr. Smith is a highly-experienced securities lawyer, chief compliance officer, and business attorney with over 24 years of experience strengthening the legal and compliance functions of investment advisers, broker-dealers, and investment vehicles.
July 24, 2024
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