Latest SEC Sweep of Off‑Channel Communications Both Befuddles and Turns Up the Heat on Investment Advisers

The SEC’s ongoing sweep on electronic communications has largely resulted in enforcement actions against broker-dealers under the Securities Exchange Act of 1934. The Commission’s attention is slowly shifting, however, as the SEC’s Division of Enforcement (Enforcement) is increasingly scrutinizing investment advisers’ recordkeeping obligations under the Investment Advisers Act of 1940. On February 9, 2024, the SEC issued a press release (Press Release) announcing charges against five broker-dealers; seven dually registered broker-dealers and investment advisers; and four affiliated investment advisers. Per the Press Release, the charges were “for widespread and longstanding failures by the firms and their employees to maintain and preserve electronic communications.” The firms admitted the facts set out in their respective SEC orders (Settlement Orders) and agreed to pay total penalties exceeding $81 million. This article summarizes the key features of the Settlement Orders and provides insights from industry experts, including where the enforcement sweep fits in the context of previous SEC efforts as to off-channel communications, the risk that excessive Enforcement efforts will dilute the SEC’s message, the questionable impact of self-reporting and how fund managers should proceed next. For coverage of previous off-channel communications enforcement actions, see “U.K. Penalizes Morgan Stanley for Lax Electronic Communications Practices” (Nov. 30, 2023); and “Recent Developments in SEC, DOJ and Civil Litigation Efforts Targeting Off‑Channel Electronic Communications” (Jul. 13, 2023).

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