COGNITIVE DISSONANCE: STATES WITH EXPANDED INVESTMENT ADVISER REGULATORY RESPONSIBILITIES LIKELY TO RECEIVE STAGNANT OR REDUCED FUNDING

This coming summer over 4,000 mid-size investment advisory firms will fall under the auspices of a new regulator: their home state. No longer will they be regulated by the SEC, which managed to conduct regulatory examinations of less than 15% of the approximately 12,000 investment advisers it regulated in 2010. The Dodd-Frank Act's shift of a segment of this nearly unregulated group was intended to improve this situation. But over one-third of the 4,100 investment advisers making the migration will have a new state regulator with either no regular examination program or with an umbilical cord to one of the worst budget crises in the nation: New York, California, Illinois and Massachusetts. And while the regulatory staffs in each of these states are among the best of the best, the situation begs for an answer better than: “we will be able to handle it.” Not only does this answer strain credulity, it seems to ignore the initial premise behind the regulatory shift and expansion of power advocated by state regulators: that they would improve investor protection by doing more and by doing it better than the SEC in the area of regulatory audits for mid-market advisers.

The current lack of a convincing and comprehensive public answer or plan by state regulators in response to the skeptics left the door open for the brokerage industry's self-regulatory organization to insert its foot. Apparently FINRA has recommended that it, or a SRO sister-to-be-created, should fill the feared void. Trade associations haven't missed the opportunity to join the turf war either, with the Financial Services Institute backing FINRA and the Investment Adviser Association siding with the state regulators. This author for one, has no interest in joining the fray and is confident that the data for a more informed evaluation and decision making process will be available in a year or two.

Assuming the states will find a way to digest the new regulatory burdens on the way, investment advisers should begin preparing for the advent of more frequent exams, audits, follow-up inquiries, remedial plans and enforcement actions. Lest I miss the opportunity for a plug – Cosgrove Law, LLC has experience assisting mid-market advisers with compliance issues, regulatory inquiries and enforcement actions.

For more information, or a different take on what I discussed in this entry, see The Wall Street Journal's January 3^rd article on the issues and NCSL.org.