California’s Corporate Securities Law of 1968 defines and provides for the comprehensive regulation of most, but not all, investment advisers. Some investment advisers are subject to an entirely different law found in the California Civil Code – Section 3372.
Section 3372 applies to any person “engaged in the business of advising others for compensation as to the advisability of purchasing, holding or selling property for investment and who represents himself or herself to be an expert with respect to investment decisions in such property, or any class of such property”. The scope of Section 3372 is similar, but not the same as, Corporations Code Section 25009 which defines “investment adviser” for purposes of the CSL. Both statutes refer to compensation, advising others, and being engaged in business. The scope of Section 3372, however, is much broader. Whereas Section 25009 is limited to advice with respect to “securities” (a term defined in Corporations Code Section 25019), Section 3372 refers to advice concerning “property” (a term that it does not define). Section 3372 also includes a requirement that the person represent himself or herself to be an “expert”. Under the statute, a person can make this representation by representing that he or she is a “financial planner,” “financial adviser,” “financial counselor,” “financial consultant” or an “investment adviser,” “investment counselor” or “investment consultant” or that he or she renders “financial planning services,” “financial advisory services,” “financial counseling services,” “financial consulting services” or “investment advisory services,” “investment counseling services” or “investment consulting services” or makes substantially equivalent representations with respect to such person’s business or qualifications.
Section 3372 isn’t a registration statute nor does it proscribe any particular activities. Rather, it is a liability statute. It provides that anyone who falls within its scope is liable to any person to whom such advisory services are furnished for compensation and who is damaged by reason of such person’s reliance upon such services. Liability under the statute is for the amount of the investment adviser’s compensation and for damages. However, there is no liability if the investment adviser proves that his or her services were performed with the due care and skill reasonably to be expected of a person who is such an expert.
Interestingly, investment advisers registered under the CSL are not subject to liability under Section 3372. The statute specifically excludes:
- Any person, when engaged in the purchase or sale of tangible personal property for his or her own account, and the agents and employees of such persons; and
- Any person, and the agents and employees of such person, licensed under, exempted from licensing under, or not subject to licensing under by reason of an express exclusion from a definition contained in, the Commodity Exchange Act, the Investment Advisers Act of 1940, the California Commodity Law, the Corporate Securities Law of 1968, the Insurance Code, the Real Estate Law, or any state or federal law for the licensing and regulation of banks or savings and loan associations.