On April 30, the U.S. Circuit Court of Appeals for the District of Columbia Circuit vacated a Securities and Exchange Commission order imposing sanctions. The court held that an investment advisory firm and its owners did not violate Section 207 of the Investment Advisers Act of 1930, 15 U.S.C. § 80b-7, by negligently omitting material facts from the firm’s Form ADV. (See Robare Group, Ltd., et al. v. SEC, No. 16-1453.)
In September 2014, SEC Enforcement charged the petitioners, The Robare Group and its two principals, with violations of Sections 206(1), 206(2) and 207 of the Advisers Act, alleging that they willfully failed to disclose a revenue-sharing arrangement through which the firm received compensation when its clients invested in certain mutual funds. After an administrative law judge dismissed all charges, the SEC reviewed the case de novo and determined that, while the record did not support a finding of scienter, the petitioners violated: (i) Section 206(2) of the Advisers Act by negligently failing to disclose the revenue-sharing arrangement adequately to customers and (ii) Section 207 of the Advisers Act by failing to disclose the revenue-sharing arrangement to the SEC on the firm’s Form ADVs. As a result, the SEC imposed a $50,000 civil monetary penalty on each of the petitioners.
The petitioners appealed the decision to the D.C. Circuit, arguing, inter alia, that “the Commission erred in ruling that [the petitioners] violated Section 207 of the Advisers Act by willfully omitting material information about the [revenue-sharing arrangement]” despite the lack of substantial evidence to establish that they willfully omitted material facts.
Section 207 of the Advisers Act provides the following: “It shall be unlawful for any person willfully to make any untrue statement of a material fact in any registration application or report filed with the Commission under Section 203 or 204 of the Advisers Act, or willfully to omit to state in any such application or report any material fact which is required to be stated therein” (emphasis added).
While the parties agreed that the term “willfully” in Section 207 required the petitioners to have “intentionally commit[ed] the act which constitutes the violation,” they disagreed over what constituted “the act.” Specifically, the petitioners took the position that a violation of Section 207 requires an intentional misrepresentation or omission of a material fact, whereas the SEC asserted that an adviser violates Section 207 by intentionally completing or filing a Form ADV that turns out to contain a material misrepresentation or omission.
The D.C. Circuit held that, while substantial evidence supported the SEC’s negligence-based findings with respect to the Section 206(2) violation, “the Commission’s findings of willful violations under Section 207 based on the same negligent conduct are erroneous as a matter of law.”
In agreeing with the petitioners’ reading of Section 207’s willfulness requirement, the Court stated, “Intent and negligence are regarded as mutually exclusive grounds for liability. Any given act may be intentional or it may be negligent, but it cannot be both” (with internal quotations and citations omitted). Accordingly, the Court held that, in order to violate Section 207, at least one individual must have subjectively intended to omit the material information from the Form ADV.
Thus, the D.C. Circuit found that, because the SEC found there to be no scienter, the SEC could not support a Section 207 violation by the petitioners based on the finding that they negligently omitted the revenue-sharing arrangement from the Form ADV, which did not amount to willful conduct. As a result, the Court remanded the case to the SEC to determine a suitable fine for just The Robare Group’s negligent violation of Section 206(2).
The SEC staff is likely evaluating what this opinion means for its enforcement program. Specifically, there is now a significant question about whether this decision upends the long-standing SEC position that administrative proceedings can brought under Exchange Act Sections 15(b)(4) and (b)(6) and Advisers Act Sections 203(e) and (f), which also require a “willfulness” finding, based on just the barest minimum of understanding, as many have said, “not sleepwalking.” In the ubiquitous footnote included in every proceeding instituted under those sections, the SEC states:
A willful violation of the securities laws means merely “’that the person charged with the duty knows what he is doing.’” Wonsover v. SEC, 205 F.3d 408, 414 (D.C. Cir. 2000) (quoting Hughes v. SEC, 174 F.2d 969, 977 (D.C. Cir. 1949)). There is no requirement that the actor “‘also be aware that he is violating one of the Rules or Acts.’” Id. (quoting Gearhart & Otis, Inc. v. SEC, 348 F.2d 798, 803 (D.C. Cir. 1965)).
How the SEC comes out on the question of whether this is still a valid position for them to take in future settlements and litigated administrative proceedings may have a profound impact going forward.
As for the SEC’s immediate consideration for this case and other pending matters, while this finding will make it harder for the SEC to bring Section 207 in the absence of a scienter finding, negligently drafted disclosures may still subject advisers to liability under Section 206(2). Furthermore, while, as noted above, the necessary “willful” finding is a jurisdictional requirement to initiate a proceeding pursuant to Advisers Act Section 203(e), the SEC may still initiate cease-and-desist proceedings pursuant to Section 203(k) of the Advisers Act and obtain monetary penalties. Negligence is enough to bring a cease-and-desist proceeding and obtain a penalty.
In addition, the decision makes it clear that relying on industry standards does not necessarily serve as a defense to negligence where, as the D.C. Circuit found here, The Robare Group’s principals recognized that the payment arrangement “created potential conflicts of interest and that they knew of their obligation to disclose this information to clients.” (See Robare at 12-13.) The Court determined that the numerous violations of the defendants’ fiduciary duty were unreasonable and thus negligent.
One benefit of the D.C. Circuit ruling is that it may be easier to settle a matter without a finding of willfulness, as statutory disqualification will be avoided. (A finding by the SEC that a person or firm acted willfully is a disqualifying event according to Section 3(a)(39) of the Exchange Act.)
Should you wish to discuss the D.C. Circuit’s decision, please contact one of the authors or any of McGuireWoods’ securities enforcement and regulatory attorneys.