More On Legal & Compliancefrom The Advisor's Professional Library
- Risk-Based Oversight of Investment Advisors Even if the SEC had a larger budget and more resources, it is doubtful that the Commission would have the resources to regularly examine all RIAs. Therefore, the SEC is likely to continue relying on risk-based oversight to fulfill its mission of protecting investors.
- Disaster Recovery Plans and Succession Planning RIAs owe a fiduciary duty to clients to prepare for disasters and other contingencies. If an RIA does not have a disaster recovery plan, clients financial well-being may be jeopardized. RIAs should also engage in succession planning, ensuring a smooth transaction if an owner or principal leaves.
The Supreme Court issued two rulings on Wednesday: one stating that the Securities and Exchange Commission must bring securities fraud cases within five years of when the fraud occurred, and another making it easier for shareholders to bring class-action lawsuits.
In the first case, Gabelli et al v. the SEC, plaintiffs sought to dismiss the SEC’s 2008 civil case against them for aiding and abetting investment advisor fraud from 1999 to 2002. The plaintiffs invoked the five-year statute of limitations under the Investment Advisers Act and pointed out that the complaint “alleged illegal activity up until August 2002 but was not filed until April 2008.”
The District Court agreed and dismissed the civil penalty claim, but the Second Circuit reversed, accepting the SEC’s argument that because the underlying violations sounded in fraud, the “discovery rule” applied, meaning that the statute of limitations did not begin to run until the SEC discovered or reasonably could have discovered the fraud.
However, the Supreme Court ruled Wednesday that “the five-year clock … begins to tick when the fraud occurs, not when it is discovered.”
In the second case, Amgen Inc. et al. v. Connecticut Retirement Plans and Trust Funds, the Supreme Court ruled that shareholders of Amgen Inc. could sue the biotechnology company as a group without first having to show that misinformation had materially and fraudulently inflated its stock price, according to Reuters.
Shareholders, led by the Connecticut Retirement Plans and Trust Funds, had accused the Thousand Oaks, Calif.-based Amgen of misleading them between April 2004 and May 2007 by exaggerating the safety of its anti-anemia drugs, Aranesp and Epogen, Reuters reported.
Meanwhile, the Financial Industry Regulatory Authority said Tuesday that it is in the process of appealing the recent decision by a FINRA disciplinary panel to uphold Charles Schwab’s decision to include a class-action waiver in its customer arbitration agreements.
The waiver requires that all disputes between Schwab and its customers be arbitrated, and waives each party’s right to bring class-action claims against the other.