Upcoming 2012 SEC Regulatory Deadlines

Congratulations to all newly registering investment advisers that have submitted their Forms ADV Part 1A and Part 2A via the Investment Adviser Registration Depository (“IARD”)  in anticipation of the March 30, 2012 deadline! The Securities and Exchange Commission (“SEC”) generally has up to 45 days after receipt of the Form ADV to declare the registration effective and generally will notify an adviser via email once its registration is declared effective.  Registrations may be declared effective at any time during that 45-day period. An adviser can also check on IARD under the heading “Registration/Reporting Status” to see if its registration has been declared effective.

Below is a review and reminder of certain of the annual regulatory requirements that may be applicable to investment advisers. This is not intended to be an exhaustive list of  SEC regulatory requirements and does not cover state-specific requirements.  In particular, it should be noted that the below information does not address any regulatory filings or reports required by the Internal Revenue Service, Department of the Treasury (such as TIC forms) or the Commodity Futures Trading Commission (“CFTC”).  We expect to release future articles on other required regulatory filings. The information below is for informational purposes only and is not legal advice. Continue reading

SEC Provides Guidance on Registration of Advisers Related to Registered Investment Advisers

On January 18, 2012, the Securities and Exchange Commission (the “SEC”)  issued a No-Action letter (the “2012 ABA Letter”) to the American Bar Association (the “ABA”), Business Law Section, providing guidance as to when certain entities affiliated with a registered investment adviser would be permitted to rely on the registered investment adviser’s registration, and would not be required to register separately as investment advisers under the Investment Advisers Act of 1940 (the “Advisers Act”).  The 2012 ABA Letter confirms the SEC’s guidance on these issues in Question and Answer G.1. of its December 8, 2005 letter addressed to the ABA’s Subcommittee on Private Investment Entities and responds to additional related questions.  Question and Answer G.1. is referred to as the “2005 ABA Letter” and is further described below.  The continued applicability of the 2005 ABA Letter had been called into question by the amendments resulting from the repeal of the section 203(b)(3) private adviser exemption under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). Continue reading

HedgeOp Merges with the IMS Group

HedgeOp Compliance, LLC has announced today that it is merging with The IMS Group, a leading European governance, risk and compliance services group. The enlarged Group has offices in London, New York, Boston and San Francisco, with more than 100 staff supporting approximately 700 investment management firms globally. Please visit HedgeOp’s website to read the full press release.

Recent SEC Investment Adviser Enforcement Cases – Deficient Compliance Programs and Aberrational Performance

HedgeOp would like to take the opportunity to highlight recent enforcement actions brought by the SEC Enforcement Division’s Asset Management Unit and remind all about the importance of  implementing a thorough compliance program and of maintaining a robust culture of compliance.

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Insider Trading Action: Exchange-Traded Funds (“ETFs”)

The SEC appears to be focusing on markets and products not previously investigated in the insider trading context. According to Sanjay Wadhwa, Associate Director of the SEC’s New York Regional Office and Deputy Chief of the Market Abuse Unit, the SEC is “aggressively working to identify and prosecute illegal insider trading across multiple markets and derivatives products regardless of the complexity of the trading pattern that we have to unravel in our investigations.”
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Final Form PF Approved by CFTC

Recently, the Commodity Futures Trading Commission (the “CFTC”) approved joint final rules under the Commodity Exchange Act (the “CEA”) and the Investment Advisers Act of 1940 (the “Advisers Act”) and the final Form PF (report by private fund advisers). The new rules implement provisions of Title IV of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). Continue reading

SEC Database Improves Tracking of Tips and Complaints

The SEC received heavy criticism for their failure to conduct a proper investigation into early tips received relating to the Madoff scandal.   In response, they have developed the Tips, Complaints and Referrals Database (the “TCR Database”) which significantly improves their ability to track and respond to tips and complaints on potential wrongdoers.  The TCR Database has emerged alongside a new program by the FBI’s criminal profiling group in Quantico, Va. that is creating a series of behavioral composites to help agents investigate white collar crime.

In recent years, financial crimes have been on the rise.

In the US government’s 2010 fiscal year, the FBI’s economics crime unit reports the bureau had 1,703 active securities and commodities fraud investigations, a 41 percent increase over the number of active investigations in 2008.  Over the past year, the amount of monetary penalties the SEC has imposed on wrongdoers has almost tripled…

Prior to the creation of the TCR Database tips would come in via phone calls, e-mails, faxes and even handwritten letters into the SEC’s 11 regional offices and Washington headquarters and often were not properly recorded or followed up. The TCR database now provides a systematic and organized approach to reviewing the information provided by tipsters, whistle-blowers and self-regulatory organizations.  Once a tip or complaint is entered into the system through the online questionnaire available in the TCR Database portal, about 2,300 SEC employees can see it, analyze the information and add to it.

While the TCR Database can not yet be cross-checked against other internal databases or against trading activity, company filings or news feeds, it is a start and a positive reform and improvement for the SEC.

SEC To Finally Clarify Registration Extension?

Weeks after an unofficial comment by a senior SEC staffer, we may finally find out the plans for a registration extension for hedge fund and other private fund managers. The SEC announced that it will be holding an Open Meeting on June 22nd where Item 1 of discussion includes:

The Commission will consider whether to adopt new rules and rule amendments under the Investment Advisers Act of 1940 to implement provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act. These rules and rule amendments are designed to give effect to provisions of Title IV of the Dodd-Frank Act that, among other things, increase the statutory threshold for registration of investment advisers with the Commission, require advisers to hedge funds and other private funds to register with the Commission, and address reporting by certain investment advisers that are exempt from registration.

Hopefully this will finally allow worried managers to know whether or not they will have until next year to file their Form ADVs. We will keep you posted of any developments coming out of the meeting.

SEC Adopts Final Rules for Whistleblower Provisions under Dodd-Frank

The U.S. Securities and Exchange Commission (the “SEC”) voted 3-2 on May 25, 2011 to adopt final rules implementing whistleblower provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The rule is called “Securities Whistleblower Incentives and Protection” which falls under Section 21F of the Securities and Exchange Act of 1934.

The new rule will require the SEC to pay an award, subject to certain limitations, to eligible whistleblowers who voluntarily provide the SEC with original information about a violation of federal securities laws that leads to successful enforcement of a covered judicial or administrative action, or a related action. Further, employers are prohibited to retaliate against employees that provide the SEC with information about possible violations.

FINRA 5131 Anti-Spinning Rule Delayed

On May 18, 2011, the U.S. Securities and Exchange Commission approved certain amendments to the originally adopted version of FINRA Rule 5131 (the “anti-spinning rule”).  Most importantly, the recent amendments delay the implementation date from May 27, 2011 until September 26, 2011.  In addition, the old FINRA Rule 5131(b)(1) is deleted.  Such provision had required FINRA members to establish and maintain policies and procedures to ensure that investment banking personnel have no involvement or influence in the new issue allocation decisions of FINRA members.

The rule change can be found here.