SEC Commissioner Gallagher Rages Against The Dying Light In Two Dissents

June 18, 2015

After four years of service, Republican Securities and Exchange Commission ("SEC") Commissioner Daniel M. Gallagher announced in May 2015 that he will be leaving the SEC once a replacement is appointed. Commissioner Gallagher is not going quietly into that good night but, to the contrary, rages against his dying tenure light.  

In a recent published statement concerning his votes against two regulatory settlements by investment advisers Blackrock Advisors, LLC and SFX Financial Advisory Management Enterprises, Inc., Gallagher explains his concern about what he sees as dubious regulation through enforcement actions. His rationale for declining to support the settlements is largely premised upon his concerns for the consequences of holding Chief Compliance Officers accountable pursuant to what he considers an often inappropriate "strict liability" standard.

The Settlements

In The Matter Of Blackrock Advisors, LLC and Bartholomew A. Battista, Respondents. (Order Instituting Administrative And Cease-And-Desist Proceedings, Making Findings, and Imposing Remedial Sanctions and A Cease-And-Desist Order; Investment Advisers Act Of 1940 Release No. 4065; Investment Company Act Of 1940 Release No. 31558; Administrative Proceeding File No. 3-16501 / April 20, 2015),

As alleged in the Blackrock OIP's "Summary":

1. This matter concerns investment adviser BlackRock's failure to disclose a conflict of interest involving the outside business activity of one of its portfolio managers. Daniel J. Rice, III was a well-known, long-standing top-performing energy sector portfolio manager. Rice joined BlackRock in 2005 and managed BlackRock energy-focused registered funds, private funds, and separate accounts. In 2007, Rice founded Rice Energy, L.P. - a Rice family-owned-and-operated oil and natural gas production company. Rice was the general partner of Rice Energy and personally invested approximately $50 million in the company. Rice's three sons were the CEO, CFO, and VP of Geology of Rice Energy. In February 2010, Rice Energy formed a joint venture with Alpha Natural Resources, Inc. ("ANR"), a publicly-traded coal company held in the BlackRock funds and accounts managed by Rice. By June 30, 2011, ANR stock was the largest holding (9.4%) in the Rice-managed $1.7 billion BlackRock Energy & Resources Portfolio, primarily as a result of ANR acquiring two other public companies held in that portfolio. BlackRock knew of Rice's involvement with and investment in Rice Energy as well as the joint venture with ANR, but failed to disclose Rice's conflict of interest to the BlackRock funds' boards of directors or to BlackRock advisory clients. 
2. BlackRock also failed to adopt and implement written compliance policies and procedures reasonably designed to prevent violations of the Advisers Act and the rules thereunder, as required by Section 206(4) of the Advisers Act and Rule 206(4)-7 thereunder, concerning the outside activities of its employees, including how they should be assessed and monitored for conflict purposes, and when an employee's outside activity should be disclosed to the BlackRock funds' board of directors or to BlackRock advisory clients. BlackRock's chief compliance officer ("CCO"), Bartholomew A. Battista, caused BlackRock's compliance-related violations. 
3. BlackRock and Battista also caused the registered funds' failure to have the funds' chief compliance officer report to the funds' boards of directors - in violation of Rule 38a- 1(a)(4)(iii)(B) under the Investment Company Act of 1940 - Rice's violations of BlackRock's private investment policy. BlackRock and Battista knew about Rice's violations, and knew or should have known that they were not reported to the funds' boards.

In the Matter of SFX Financial Advisory Management Enterprises, Inc. and Eugene S. Mason, Respondents. (Order Instituting Administrative And Cease-And-Desist Proceedings, Making Findings, and Imposing A Cease-And-Desist Order; Investment Advisers Act Of 1940 Release No. 4116; Administrative Proceeding File No. 3-16591 / June 15, 2015) 

As alleged in the SFX OIP's "Summary":

From 2006 through 2011, Brian Ourand ("Ourand"), while SFX's Vice President and President, misappropriated at least $670,000 in assets from three client accounts. During this time, SFX failed to supervise Ourand and also committed compliance failures. In particular, SFX failed to adopt policies and procedures reasonably designed to prevent the misappropriation of client assets, failed to implement the policies it did have, violated the custody rule, and falsely stated in its Form ADV that it reviewed client accounts used for bill-paying services. SFX also failed to conduct its annual compliance review in 2011. Mason, SFX's Chief Compliance Officer ("CCO"), caused SFX's failure to implement its compliance policies, conduct an annual review and is responsible for a material misstatement in a Form ADV filing.

Apologist or Champion?

As is often the case with Commissioner Gallagher, many will be appalled by his position as little more than a apology for inept and inefficient industry compliance; others, however, will applaud him for trying to provocatively generate a debate about uncomfortable issues.  Out of a deep respect for my readers -- among which are regulators, compliance officers, producers, and public investors -- I will not weigh in on this debate and leave it to you to read the commissioner's commentary and reach your own conclusions.

Also READ: "Failed Email Review Offers Example Of Hidden Compliance Costs" ( Blog by Bill Singer, June 5, 2015)

Commissioner Daniel M. Gallagher
June 18, 2015

I recently voted against two settled SEC enforcement actions involving alleged violations of Investment Advisers Act Rule 206(4)-7 by chief compliance officers ("CCOs"): In the Matter of Blackrock Advisors, LLC (April 20, 2015)[1] and In the Matter of SFX Financial Advisory Management Enterprises, Inc. (June 15, 2015).[2] I have long called on the Commission to tread carefully when bringing enforcement actions against compliance personnel.[3] These recent actions fly in the face of my admonition, and I feel compelled to explain my rationale for dissenting.

In Blackrock, the Commission charged a CCO with causing the firm's Rule 206(4)-7 violations in connection with his alleged failure to ensure that the firm had compliance policies and procedures to assess and monitor the outside activities of employees and disclose conflicts of interest to fund boards and advisory clients. In SFX, the Commission alleged that a CCO failed to implement compliance policies and procedures that, if carried out appropriately, would have detected an alleged multi-year theft of client assets by the president of the firm. In both instances, the Commission's order states that the CCO was responsible for the implementation of the firms' policies and procedures.

Both settlements illustrate a Commission trend toward strict liability for CCOs under Rule 206(4)-7. Actions like these are undoubtedly sending a troubling message that CCOs should not take ownership of their firm's compliance policies and procedures, lest they be held accountable for conduct that, under Rule 206(4)-7, is the responsibility of the adviser itself. Or worse, that CCOs should opt for less comprehensive policies and procedures with fewer specified compliance duties and responsibilities to avoid liability when the government plays Monday morning quarterback.

I am especially worried about the potential impact of this trend on small advisers, as it appears that many such advisers have just one set of policies and procedures covering both compliance and business functions. At these firms, there is a significant risk that by taking ownership of the implementation of the policies and procedures, CCOs could unwittingly also be taking ownership of business functions, subjecting them to strict liability whenever there is a violation of the securities laws.

Much of the blame, of course, can be laid at the feet of Rule 206(4)-7 itself, which is not a model of clarity. The rule merely states that registered investment advisers are required to "[a]dopt and implement written policies and procedures reasonably designed to prevent violation[s]" of the Advisers Act and its rules,[4] but offers no guidance as to the distinction between the role of CCOs and management in carrying out the compliance function. And in the eleven years since the rule was adopted, the Commission has not issued any guidance about how to comply with the rule.

Unfortunately, the only guidance market participants have at their disposal are enforcement actions, which in some cases have unfairly contorted the rule to treat the compliance function as a new business line, with compliance officers assuming the role of business heads. On its face, Rule 206(4)-7 speaks directly to the responsibility of the adviser, but all too often, the Commission interprets the rule as being directed at CCOs. The rule expressly states that the firm must designate a CCO to administer its compliance policies and procedures.[5] At the end of the day, ultimate responsibility for implementation of policies and procedures rests with the adviser itself.

The Commission needs to be especially cognizant of the messages it sends to the compliance community, and in particular to CCOs of investment advisers. To put it bluntly, for the vast majority of advisers, CCOs are all we have. They are not only the first line of defense, they are the only line of defense. There are nearly three times as many investment advisers registered with the SEC than there are broker dealers - approximately 11,700 investment advisers versus about 4,200 broker-dealers - yet the SEC devotes roughly the same amount of resources to examining broker-dealers as it does to investment advisers. And unlike the brokerage industry, there is no SRO interposed between the SEC and advisers. Given the vitally important role played by compliance personnel, I am very concerned that continuing uncertainty as to the contours of liability under Rule 206(4)-7 will disincentivize a vigorous compliance function at investment advisers.

One thing is certain: we should not be resolving this uncertainty through enforcement actions. There are, of course, situations where CCOs should be held accountable for violations of the securities laws. However, as regulators, we should strive to avoid the perverse incentives that will naturally flow from targeting compliance personnel who are willing to run into the fires that so often occur at regulated entities. This includes exercising restraint and discretion even at the investigation stage. The psychological impact, and in many cases reputational damage, that can come with months or years of testimony, the Wells process, and settlement negotiations can be just as chilling as the scarlet letter of an enforcement violation.

The Commission must take a hard look at Rule 206(4)-7 and consider whether amendments, or at a minimum staff or Commission-level guidance, are needed to clarify the roles and responsibilities of compliance personnel under the rule so that these individuals are not improperly held accountable for the misconduct of others. The status quo simply will not do. As it stands, the Commission seems to be cutting off the noses of CCOs to spite its face.

[1] SEC Charges BlackRock Advisors With Failing to Disclose Conflict of Interest to Clients and Fund Boards, SEC Rel. No. 2014-71 (Apr. 20, 2015), available at

[2] Investment Advisory Firm's Former President Charged With Stealing Client Funds, SEC Rel. No. 2015-120 (June 15, 2015), available at

[3] See, e.g., SEC Commissioner Daniel M. Gallagher, Remarks at "The SEC Speaks in 2012" (Feb. 24, 2012) (cautioning against holding compliance personnel liable for failure to supervise), available at; Remarks at The 2013 National Compliance Outreach Program for Broker-Dealers (Apr. 9, 2013) (noting expanded scope and complexity of compliance function at regulated entities and resulting increase in potential liability for compliance personnel), available at; Introductory Remarks at The Evolving Role of Compliance in the Securities Industry Presentation (May 12, 2014) (addressing increasingly important role of compliance function at regulated entities), available at

[4] 17 CFR 275.206(4)-7 (2004), Compliance procedures and practices.

[5] Id.