The House Financial Services Committee Wants to be Your Friend

Congressman Bachus must have let one of his grandkids near the computer. The House Committee on Financial Services, of which Congressman Bachus is the chairman, has jumped into the world of social media. They have a Twitter feed, a YouTube Channel, a Facebook page and a blog: The Bottom Line.

Even though the SEC has not yet come out with its final whistleblower rule, the committee has set up its own whistle blower form. They have a comment box so you can send comments about legislation.

As for the blog,

“We will bring to your attention what we think is important and interesting. We will post what we’re reading and what we’re thinking. We will post short reaction pieces and longer thought pieces. We will blog about ideas and policies that we support and that we don’t support. We will try to entertain. Most importantly, we will try to engage our readers.”

It’s a nice, although extremely partisan, attempt to provide more information. I’m all for open government and an open discussion of the issues. Maybe using these communication channel will help bring more openness. Maybe they will just bring more grandstanding and partisan bickering.

One of the features on the committee’s website is Collateral Damage: the real impact of the Democrat’s bailout bill.  I get the sense that the website is more about political propaganda than open government.

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Are Real Estate Fund Managers Registered with the SEC?

Last year, I looked a the top 30 real estate private equity fund managers to see which are already registered with the SEC. The 2011 version of the PERE 30 just came out, so I decided to look at the list again.   (Disclosure: my company is on the list.)

It was mostly re-shuffling, but three new names were added to the list. One is registered as an investment adviser and the other two are not. Of the three that fell off the list, two were registered.

1 The Blackstone Group Yes
2 Morgan Stanley Real Estate Investing Yes
3 Tishman Speyer
4 Colony Capital Yes
5 Goldman Sachs Real Estate Principal Investment Area Yes
6 Beacon Capital Partners
7 LaSalle Investment Management Yes
8 The Carlyle Group Yes
9 Prudential Real Estate Investors Yes
10 Lone Star Funds Yes (Hudson Advisers)
11 Westbrook Partners
12 AREA Property Partners
13 MGPA
14 KK daVinci Advisors
15 CB Richard Ellis Investors Yes
16 Shorenstein Properties
17 Rockpoint Group
18 Lubert-Adler Real Estate Yes
19 Citi Property Investors Yes
20 Walton Street Capital Yes
21 Starwood Capital Group Yes
22 Bank of America Merrill Lynch Global Principal Investments Yes
23 (new) TA Associates Realty Yes
24 (new) GI Partners
25 Lehman Brothers Real Estate Private Equity Yes
26 (new) KSL Capital
27 Aetos Capital Yes
28 Angelo, Gordon & Co Yes
29 Hines
30 Grove International Partners
x -off the list Heitman Yes
x-off the list Rockwood Capital
x-off the list RREEF Alternative Investments Yes

 

If you do the math, now 18 of the top 30 are already registered with the SEC as Investment Advisers. I expect to see several more in the “yes” column before the registration deadline under Dodd-Frank. The question is whether that deadline will be July 21, 2011 or sometime in the first quarter of 2012.

The PERE 30 measures capital raised for direct real estate investment through commingled vehicles, together with co-investment capital, over the past five years.

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Compliance Bits and Pieces for May 6

Here are some compliance-related stories that recently caught my eye:

Investing in an ethical corporate culture by Aarti Maharaj in Corporate Secretary

Companies are starting to distinguish between non-financial and financial risks in order to continue improving their overall governance and business structures. But non-financial risks, such as ethics, still don’t get the attention they deserve from industry experts. And this could have real – and financial – implications for your company.

Buffet, Sokol and Reporting to the SEC by Tom Fox

We certainly applaud the fact that Buffet timely notified the SEC. However, to publicly praise someone for conduct which may have violated securities law and led to that employee’s resignation and expect such praise to send a signal of reproach still leaves us, as it did initially with Andrew Ross Sorkin, “scratching my head about his reaction.”

Avon Probe Expands To Countries Beyond China by Joe Palazzolo in WSJ.com’s Corruption Currents

Avon Products Inc.’s probe into possible bribery of foreign officials has found evidence of improper payments to government officials in several countries beyond the probe’s original focus of China, The Wall Street Journal reported. The probe has uncovered millions of dollars of questionable payments to officials in Brazil, Mexico, Argentina, India and Japan that may have violated the Foreign Corrupt Practices Act, the Journal reported, citing a person familiar with the matter. The payments date back as far as 2004.

Russia Criminalizes Foreign Bribery by Joe Palazzolo in WSJ.com’s Corruption Currents

Russian President Dmitry Medvedev, who has made tamping down on corruption his signature issue, signed a bill on Wednesday outlawing foreign bribery and allowing prosecutors to seek large fines instead of prison sentences for graft. The law pushed Russia closer to accession to the Organization for Economic Cooperation’s anti-bribery convention, a key anti-corruption benchmark and a prerequisite for full membership to the OECD, which Russia has sought since 2009.

On a lighter note, Causation, Correlation and Your Dog from Doghouse Diaries
Correlation

Near Misses, Catastrophes, and Compliance

The theme of the April edition of the Harvard Business Review is “Failure.” As scary as that term is in the world of compliance, “catastrophe” is even scarier. That means that the failure resulted is real, significant damage.

But you can learn from failures. You can especially learn from others’ failures.

In How to Avoid Catastrophe, Catherine H. Tinsley, Robin L. Dillon, and Peter M. Madsen look at “unremarked small failures that permeate day-to-day business but cause no immediate harm.” Their research has revealed a pattern: “Multiple near misses preceded (and foreshadowed) every disaster and business crisis we studied, and most of the misses were ignored or misread.” (Sorry, you need a subscription to read the entire HBR article.)

They come up with seven strategies that can help an organization recognize near misses and root out the error behind them. These seem very applicable to compliance programs.

  1. Heed high pressure. The greater the pressure to meet performance goals, the greater likelihood that managers will discount near miss signals.
  2. Learn from deviations. Don’t just recalibrate operations, focus on the significance of the change.
  3. Uncover root causes. Don’t just correct the symptoms.
  4. Demand accountability. Require managers to justify their assessments of near misses.
  5. Consider worst-case scenarios. people tend to not think of the possible negative consequence of a near miss. Walk through a situation where the near-miss does not miss.
  6. Evaluate projects at every stage. Take a look at your successful projects, not just your failures.
  7. Reward owning up. Don’t punish errors, but reward those who uncover near misses.

The authors:

Failure and Compliance

The theme of the April edition of the Harvard Business Review is “Failure.” That’s a scary term in the world of compliance. Generally, that means you’ve got government regulators or enforcement personnel sitting in your offices. And they are not happy. Failure and compliance can mean disciplinary action, fines, or jail time.

But you can learn from failures. You can especially learn from others’ failures.

Ethical Breakdowns by Max H. Bazerman and Ann E. Tenbrunsel takes an insightful look at ethical breakdowns and comes up with five barriers to an ethical organization. (Sorry, you need a subscription to read the entire HBR article.)

  • Ill-conceived goals
  • Motivated blindness
  • Indirect blindness
  • Slippery slope
  • Overhauling outcomes

An ill-conceived goal is the classic failure seen in sales targets, revenue projections, and stock price targets. If you give mechanics a sales goal of $147 hour they can very easily lapse into fixing things that were not broken rather than being more efficient. Sears encountered this problem in the 1990s.

The authors lump a few things into the motivated blindness category, but most notably included are conflicts of interest. They use the failure of rating agencies during the financial collapse as one example. Since the rating agencies are paid by the issuer instead of the buyer of securities, they have a misalignment of motivation. They end up serving the one who pays them, leading to lax ratings and competition for business. That means they may have rated something higher than they should have. (That’s a big understatement.)

Indirect blindness is when third parties are involved. What caught my eye was an experiment examining perceptions of an increase in the cost of a pharmaceutical drug. In the first scenario, the drug company raises the price from $3 to $9. In the second scenario, the drug company sells the rights to a smaller company who then increases the price to $15. The first scenario was judged more harshly, even though it resulted in a lesser price.

We’ve all been concerned about the slippery slope. Little lapses lead to a culture of lapses, eventually leading a big failure. The authors present some interesting research showing how this works and that it is a real problem. From a compliance perspective, they focus on auditors and how good accountants can do bad audits.

The final category is the one I found the most intriguing: overvaluing outcomes. The author’s research showed an inclination to judge actions based on outcomes rather than the behavior. One example is a research failure.

In the scenario A, a researcher pulls four subjects back into the results after they were removed for technicalities. However, the researcher thinks their data is appropriate. When adding them back in, the results shift and allows the drug to go to market. Unfortunately, the drug ends up killing six people and is pulled from the shelves.

In scenario B, a researcher makes up four more data points for how he believes subjects are likely to behave. The drug goes to market, becomes profitable and effective.

The participants in the author’s experiment judged the researcher in scenario A much more critically than the researcher in scenario B. The problem is that the person B had the bigger ethical lapse and worse behavior. It’s just that the outcome, largely by luck, was worse in A than B.

They extrapolate the findings to the situation where a manager is overlooking ethical behaviors when outcomes are good and unconsciously helping to undermine the ethical culture of an organization.

The Monstrous Size of Dodd-Frank

“What is 20 times taller than the Statue of Liberty, 15 times longer than “Moby Dick” and would take the average reader more than a month to read, even if you hunkered down with it for 40 hours a week?”

If you’ve been Dodd-Frank’ed, you know the answer.

The last round of financial overhaul was the Sarbanes-Oxley Act that came out of the Enron scandal. SOx weighs in at 66 pages. Dodd-Frank eats that for breakfast; It’s in heavyweight class at 849 pages.

That is just the legislation. Dodd-Frank put a big burden on financial regulators to work out the details to implement their vision (as myopic as it may be at times).

“In addition to the 30 rule-making procedures that already have missed the deadline set by Congress, 145 are supposed to be completed by year end…. Officials at the SEC, on the hook for more Dodd-Frank-related regulations than any other U.S. agency, have finished six rules, proposed 28 additional rules, missed deadlines on 11—and still have 50 to go, on which they have yet to issue any proposals.”

So far the regulatory “process has produced more than three million words in the Federal Register—or more than 3,500 11-inch-high pages.” And almost 2/3 of the rules required by Dodd-Frank have not even been proposed.

Congressman Barney Frank thinks missing the deadlines is no a big deal. “There is no penalty for not meeting the deadline,” Mr. Frank said during a webinar sponsored by the National LGBT Bar Association. “There’s no gun at their heads. Nobody gets fired.”

Sources:

Massachusetts Is Looking to Dodd-Frank Investment Advisers and Fund Managers

Just to keep you on your toes if you have less than $150 million under management, states are now filling in the gaps left by Dodd-Frank. If you are under that threshold, you lose the ability to register with SEC and now have to look to at being regulated at the state level.

Massachusetts used to have a very broad exemption if your clients were all “institutional buyers.”

An investing entity whose only investors are accredited investors as defined in Rule 501(a) under the Securities Act of 1933 (17 CFR 230.501(a)) each of whom has invested a minimum of $50,000.

For a private fund manager, this was a great exemption since their investors would need to be accredited investors. As long they kept capital commitments at a minimum of $50, 000 they could usually take advantage of this exemption.

The Massachusetts Secretary of State has proposed removing this exemption as well as cleaning up other aspects of investment adviser/fund manager regulation to get ready for Dodd-Frank.

The proposal would also create new Massachusetts registration exemptions for advisers whose only clients are “venture capital funds” or funds excluded from the definition of “investment company” under Section 3(c)(7) of the Investment Company Act. As you might expect, the term “venture capital fund” would be defined by reference to the SEC’s definition of the term. The SEC has proposed a draft definition of venture capital fund, but not yet finalized it.

What is abundantly clear is that the SEC has run out of time it trying to meet the July 21, 2011 deadline in Dodd-Frank. It’s time to raise the white flag and move the deadline. Since the SEC has not yet finalized the rules, regulated parties would have no time to understand the rules and get changes in place by July 21. Given that thousands of advisers are being kicked out of SC registration and over to state registration, the states do not have the rules in place to deal with the regulatory changes.

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Employment Opportunity – Senior Compliance Role

I occasionally get calls from people looking to hire compliance personnel. Here is the latest:

  • Private Equity firm looking to expand its compliance team
  • Senior compliance role reporting to the CCO
  • Company is a prominent PE firm based in TX with a large office in San Francisco
  • Knowledge of Investment Advisers Act essential
  • Experience reviewing marketing material and interacting with investor relations and fund raising required
  • Firm has a small compliance team so it is expected that this person will be willing to take on a variety of responsibilities
  • JD not required
  • Relocation available

If you are interested, you can drop me a note on the Compliance Building hotline: [email protected].

Compliance Bits and Pieces for April 29

Here are some recent compliance-related stories that caught my eye:

SFO GC resigns: SFO future cast into further doubt in The Bribery Act .com

We’re delighted to congratulate Vivian Robinson QC on his reported move today from the SFO to join a US law firm, Richmond Virginia headquartered McGuire Woods, in the near future. We’ve enjoyed working together with Vivian over recent months and look forward to doing so during the remainder of his time at the SFO.

Vivian’s move places in the spotlight once again the current uncertainty surrounding the future of the SFO.

Examining Bernie Madoff, ‘The Wizard Of Lies’ on NPR’s Fresh Air

The first journalist to interview Bernie Madoff after the money manager was sentenced to 150 years in prison says she was struck that Madoff hadn’t fundamentally changed.

Even behind bars, says New York Times financial writer Diana Henriques, Madoff was a “fluent liar.”

“The magic of his personality is how easy it is to believe him — almost how much you want to believe him,” she tells Fresh Air’s Terry Gross. “For example, he assured me in that first interview — and in emails subsequently that we exchanged — that he wasn’t going to talk to other writers. … Of course, it wasn’t true, he was talking to others. It was all a lie.”

Whistleblower Rules May Not Be Ready Until Summer by Joe Palazzolo in WSJ.com’s Corruption Currents

After missing an April deadline, the Securities and Exchange Commission said it now expects to finalize rules for its whistleblower program by July, reports Dow Jones’ Jessica Holzer. Congress had given the SEC until April 21 to write rules for the program, which was created in the Dodd-Frank law nine months ago. The commission plans to adopt rules sometime between now and the end of July, according to a revised schedule on the agency’s website.

Risk Disclosures and Form ADV Part 2 for Fund Managers

If you’re a fund manager getting ready to register because you’ve been Dodd-Frank’ed, then you are likely in the middle of drafting Part 2 of Form ADV, the brochure. One item that caused my to pause was the risk factor requirements in Item 8.

8.B:  For each significant investment strategy or method of analysis you use, explain the material risks involved. If the method of analysis or strategy involves significant or unusual risks, discuss these risks in detail. If your primary strategy involves frequent trading of securities, explain how frequent trading can affect investment performance, particularly through increased brokerage and other transaction costs and taxes.

Fund sponsors spend a great deal of time, money, and energy drafting risk factors for their fund’s private placement offering memorandum.

Do you need to duplicate those risk factors in response to 8B or can you ignore them?

The SEC staff answered that question about Part 2 of Form ADV.

Question II. 4

Q: Item 8.B of Part 2A requires an adviser to explain the material risks for each significant investment strategy or method of analysis the adviser uses. Does Item 8.B require an adviser that uses pooled investment vehicles as a significant investment strategy or method of analysis to duplicate the risk disclosures contained in a prospectus or other offering document for the pooled investment vehicle?

A: An adviser may satisfy the requirement of Item 8.B by providing a brief explanation of the material risks for each strategy and referring clients to the prospectus, offering memoranda, or other documents that a client participating in the pool will or has received that set out a more detailed discussion of risks. (Posted March 18, 2011)

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