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”). 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. Continue Reading SEC Staff Grants Limited No-Action Relief Regarding the In-Person Board Meeting Requirement under the Investment Company Act
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 an overview of the exam priorities specific to investments advisers, a brief description of certain key SEC 2018 enforcement actions involving investment advisers as well as certain suggested practice points that advisers may want to consider in response to these priorities and enforcement actions (see link below for the full legal update).
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. Continue Reading A New Standard for Investment Adviser Fiduciary Duty?
In the past 2 years, we have seen a clear uptick in desk exams by the SEC’s investment adviser examination staff. These “desk” exams consist of the staff sending a preliminary document request (the same as they would if they intended to arrive in person), reviewing the materials presented, and then typically sending additional requests. Sometimes requests from the staff can reach double digits depending upon what information is previously submitted. Following that production, and any subsequent follow-up phone calls, the staff typically issues a deficiency letter and the registrant responds.
There are pros and cons to this kind of exam. Continue Reading SEC Desk Exams: Up Close But Not Personal