Sure Steps For Preventing Investment Analyst Fraud

Although remarkably broad, neither subsection is self-explanatory

. For example, both use the word any to report the means for acting fraudulently or deceitfully , though not one of these means is defined.

Nevertheless, common sense dictates that the intent was to proscribe positive categories of conduct, such as intentionally making material misstatements about the firm's investment performance return to lure clients, receiving a bribe to tout a clearly valueless stock, intentionally overcharging clients or stealing client assets. This type of historically in the past fraudulent conduct, where a fiduciary affirmatively acts against the interest of its client, falls within a plain reading of the provisions.

Provisions have already written by Supreme court to cover a wide selection of facts and circumstances, the Supreme Court's decision in SEC v. Capital Gains Research Bureau, Inc. established an expansive legal framework for defining them. Consistent with Congress's purpose in passing the act, the Court first determined that the investment adviser serves as a fiduciary to its clients, though the term never appears in the act. Under this fiduciary duty, an investment adviser was held to have "an affirmative duty of utmost lovely faith and full and fair disclosure of all material facts." The Court went on to note that in enacting these provisions Congress intended to "eliminate, or at least to expose, all conflicts of interest which might incline an investment adviser--consciously or unconsciously--to render advice which was not disinterested." Consequently, the Court viewed the act as "directed not only at dishonor, but also conduct that tempts dishonor."

DISCLOSURE IS KEY

Within this framework, the Court held that the "fraud or deceit" language of section 206(2) ought to not be interpreted narrowly or technically. In lieu it ought to be construed broadly and remedially to cover instances where an adviser failed to disclose to the client all material facts, including an adviser's conflicts of interest with its client. For example, the Court held that the investment adviser violated this duty by "scalping." This occurred when the adviser bought a security that it finally recommended to clients, then bought the same security for clients (thereby driving up the cost), and finally sold its shares at a profit. In doing so, the adviser had failed to disclose to its clients all the material facts surrounding this investment recommendation--namely, the 's conflict of interest when it recommended a stock not as a disinterested adviser, but as part a process to profit personally. The Court also made it clear that under section 206(2) the SEC may charge a violation although it did not establish that a client was actually injured due to the failure to disclose, nor that the adviser intended to injure the client. In light of this interpretation an adviser's failure to disclose material facts, including material conflicts of interest with its clients, could constitute a violation.Not surprisingly, other courts have followed this lead by holding that an adviser may violate the act through either a material misrepresentation or an omission. In essence, an adviser must take right care to keep away from misleading clients by opening material conflicts of interests to its clients and potential clients.

by: Robert Spencer

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