Privacy and the safeguarding of customer information continues to be an important compliance topic from the SEC’s perspective, including its examination staff.  The SEC’s Office of Compliance Inspections and Examinations (OCIE) recently released a Risk Alert highlighting common examination deficiencies from registered advisers and broker-dealers related to Regulation S-P, a rule requiring that such registrants

On March 11, 2019, the SEC announced that it settled charges against 79 investment advisers who self-reported violations in connection with the SEC’s Share Class Selection Disclosure Initiative (the “Initiative”).  Please see the link below for a Legal Update on this enforcement action, which discusses the Initiative in greater detail as well as the eligibility

On February 28, 2019, the staff of the SEC’s Division of Investment Management granted no-action relief in connection with the 1940 Act’s in-person meeting requirements under Section 15 of the Investment Company Act of 1940 (the “1940 Act”).[1]  This relief would apply to the boards of directors of a registered investment companies (each a “fund”) and would permit them to, under certain delineated circumstances, approve certain investment advisory and principal underwriting contracts of a fund, the 12b-1 plan of a fund and the selection of a fund’s independent public accountant telephonically, either by video conference or by other means by which all participating directors may participate and communicate with each other simultaneously during a meeting.
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In late 2018, the SEC’s Office of Compliance Inspections and Examinations (OCIE) released its 2019 examination priorities, which cover not only investment advisers and registered funds, but also broker-dealers and transfer agents.  To help you digest and better understand these 2019 exam priorities, our Washington, DC-based Investment Management practice has prepared a legal update giving

There’s clearly no summer lull at the SEC Division of Enforcement’s Asset Management Unit—over the past two weeks, we’ve seen a deluge of more cases impacting investment advisers than we’ve seen afternoon thunderstorms (and here in DC, that’s saying something).  In this post I’m going to briefly summarize some of the take-aways for these cases impacting the pay-to-play rule, the “testimonial rule,” and the custody rule.

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Fund managers that are affiliated with U.S. banks, or that have historically courted U.S. banks  (or their affiliates) as investors in their funds, are by now very familiar with the restrictions imposed by the “Volcker Rule” since its adoption in December 2013.  A massive regulatory undertaking, the rule was adopted by five of the U.S. financial regulators (namely, the Federal Reserve, the FDIC, the Office of the Comptroller of the Currency, the SEC, and the CFTC) acting in concert, and resulted in sweeping changes to how U.S. banks and their affiliates make proprietary investments and how they interact with so-called “covered funds.”  From the perspective of a ’40 Act practitioner, it was clear at the time, and has remained so ever since, that the group of august regulators did not, collectively, grasp some of the implications of the way the final regulation approached some issues involving covered funds–including the very way that term was defined.

After several years of Congressional logjam and the regulators addressing some of the more vexing issues in the Volcker Rule through FAQs, we now suddenly find ourselves moving forward with changes to the Volcker Rule on multiple fronts.  Unfortunately–at least from this practitioner’s perspective as an investment management lawyer–most of the changes we’ve seen so far are targeted at the proprietary trading side of the rule, rather than the covered fund side.  That said, there are still a few things on the covered fund side worth mentioning, especially for industry participants interested in making their voice heard by the regulators.


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In April 2018, the SEC proposed an Interpretation Regarding Standard of Conduct for Investment Advisers.  In that proposal, the SEC has proposed to interpret the duty of loyalty (which, combined with the duty of care, constitutes fiduciary duty) as requiring advisers to put client interests ahead of their own and make full and fair disclosure of all material facts of the relationship.  More particularly, the SEC stated that advisers must seek to avoid conflicts of interest and make full and fair disclosure of material conflicts that could affect the relationship.  If you stopped reading the release at this point, you might think this is a clear articulation of what the duty means and how we practice in the area of conflicts.
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As most of you have heard, on March 15, 2018, the U.S. Court of Appeals for the Fifth Circuit issued an opinion vacating, in its entirety, the Department of Labor’s amendment to regulations defining “investment advice” for the purpose of determining who is a fiduciary (the “DOL Fiduciary Rule”) on the basis that the Department violated the Administrative Procedures Act and exceeded its regulatory authority.  The Department had the right to request an en banc review of the decision by the full Fifth Circuit panel within 45 days of the date of the decision and to appeal the decision to the U.S. Supreme Court within 90 days after the date of the decision.  The Department of Labor did not file the request for review or an appeal to the Supreme Court within such deadlines.  On June 21, 2018, the Fifth Circuit issued the mandate implementing its decision to vacate the DOL Fiduciary Rule.
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