NASHVILLE — Non-dealer municipal advisors are unsure which employees at their firms must register as MAs under the Securities and Exchange Commission’s new rule, and want further guidance from both the SEC and Municipal Securities Rulemaking board about how their businesses will be affected by the rule.
They raised the concerns Thursday, at the first day of a meeting of the National Association of Independent Finance Advisors here.
NAIPFA members discussed a wide range of topics related to the MA registration rule. The rule, adopted last month, will be the first permanent regulation of non-dealer advisors despite the fact that they have been required to register under a temporary rule that has now been extended through the end of 2014 to cover the time until the new rule becomes effective 60 days after publication in the Federal Register. The rule was mandated by Dodd-Frank, which says that MAs have a fiduciary duty to put their clients’ interests ahead of their own.
NAIPFA president Jeanine Rodgers Caruso told attendees that the rule represents one of the most important issues in the world of public finance, and said the group will be “ramping up” work on its own recommendations in response to the 777-page SEC release. SEC muni chief John Cross was scheduled to attend to help provide clarification for NAIPFA members, but was forced to cancel the trip due to the federal government shut down that began when Congress failed to approve a continuing resolution authorizing U.S. government spending for the 2014 fiscal year.
Though NAIPFA counsel Nathan Howard, a former practicing municipal advisor and a current attorney at Affinity Law Group, LLC in St. Louis, told attendees that the SEC did a good job crafting the rule, members of the organization are still seeking clarification on whether certain types of analysts they employ would need to register under the new regulatory regime.
The rule requires MA firms to register with both the SEC and MSRB, and also to submit to the SEC a form MA-I for each person engaged in municipal advisory services, which the rule defines as giving particularized advice to a municipal entity on the subject of muni bonds, muni bond proceeds, or muni derivatives.
One conference participant told colleagues that it might not be clear which members of a firm would fall under that umbrella. The information required on the MA-I includes personal information as well as a criminal history, and must be updated promptly if there is any material change to that information. Howard told the group that something like a drunk driving conviction would likely qualify as relevant information that needs to be reported. One advisor asked whether analysts who perform calculations but do not attend sales meetings or speak with clients would need to be included in filings to the SEC.
Howard responded that it was probably not necessary. “The standard here is whether or not they’re engaging in municipal advisory activity,” Howard said. “If you’ve got a guy who’s just crunching numbers in the back room, I think you’ve got a strong argument that guy is not a municipal advisor.”
But another participant said it might be better to register everyone. Even though the SEC has said purely clerical individuals do not fall under the new regime, it remains possible that any analyst might have contact with a client, such as by answering questions by phone. Howard agreed that could cause the MA registration requirement to attach to that person, even if he or she was never intended to be a person knowledgeable about the client and that municipal entity’s situation. That elicited a response from an attendee, who said NAIPFA members should aspire to a higher standard that includes some level of particularized understanding of the client by everyone doing work for a municipality.
The non-dealer MAs also discussed the interaction between the SEC rule and MSRB rule G-23 on activities of financial advisors. Some bond lawyers have speculated that the rule might mean the end of unsolicited dealer firm “pitches” to muni bond issuers, because such a pitch might well cause a municipal advisory relationship to exist. Under the rule, providing general information or facts does not require MA registration. Also, dealers can rely on an exemption that allows them to offer advice if the issuer provides a written disclosure that it will be relying strictly on the advice of its own registered MA.
Though G-23 prohibits a dealer from acting as financial advisor and underwriter on the same deal, dealer groups have suggested that firms could act as a municipal advisor before becoming underwriter later, provided that they disclosed to the issuer that they would not owe a fiduciary duty once they became underwriter.
Though Cross seemed to discourage the idea during a joint Bond Buyer/ Securities Industry and Financial Markets Association Webinar last week, Steve Apfelbacher, an advisor at Ehlers, Inc. said it remains a question.
“I would imagine now there’s going to be quite a lot of pushback,” Apfelbacher said of a possible broker-dealer community response. “We have questions in terms of how G-23 plays into this.”
MSRB executive director Lynnette Kelly and new MSRB board chair Dan Heimowitz said the board will likely take up a fiduciary duty rule first before revisiting past MA rules that were withdrawn after the SEC abandoned an earlier proposed registration rule. Kelly said the MSRB’s new rules would be a fresh take.
“There’s no intent at all to sort of dust of those rules and put them out again,” she said.
The MSRB provided attendees with a small pamphlet explaining the organization’s role and advising MAs to familiarize themselves with the MSRB’s expectations. The board is charged with developing a professional exam for MAs, which Kelly said could be ready by the fall of 2014 if no delays occur. Heimowitz, who replaced Jay Goldstone as chair Oct. 1, assured NAIPFA members their voices would be important in the MSRB’s rulemaking process. “The MSRB is committed to working closely with your industry,” he said.