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

In its ongoing sweep on electronic communications, the SEC’s Division of Enforcement is increasingly scrutinizing recordkeeping obligations under the Investment Advisers Act of 1940. The regulator recently announced settlement orders with total penalties exceeding $81 million against five broker-dealers, seven dually registered broker-dealers and investment advisers, and four affiliated investment advisers. The charges, according to the SEC’s February 9, 2024, press release, were “for widespread and longstanding failures by the firms and their employees to maintain and preserve electronic communications.” This article summarizes the key features of the orders and provides insights from industry experts on where the enforcement sweep fits in the context of previous efforts to regulate off-channel communications, the risk that excessive enforcement efforts will dilute the SEC’s message, the questionable impact of self-reporting and how firms should proceed next. See “SEC Charges 11 More Wall Street Firms With Widespread Records Failures” (Sep. 13, 2023).

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