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

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

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.

SEC December Activities Implementing Dodd-Frank

The SEC staff continues to carry out the rulemaking and proceed with the studies mandated by the Dodd-Frank Act.

The SEC’s  “Implementing the Dodd-Frank Wall Street Reform and Consumer Protection Act” web page consolidates links to all of the SEC’s related accomplishments to date, includes a calendar of its planned activities implementing the Dodd-Frank Act through July 2011 and provides a link to comments the SEC has received on both rulemaking and planned studies.

In November, the SEC proposed the following: an anti-manipulation rule for security-based swaps, a Whistleblower Incentives and Protection Program, rules regarding the registration and regulation of security-based swap repositories and security-based swap reporting and, most recently, exemptions from investment adviser registration for venture capital firm advisers and certain private fund advisers, as well as rules and changes to forms to implement the transition of mid-sized investment advisers from SEC to State regulation.

Highlights of the December, 2010 calendar most relevant to hedge funds and investment advisers include: Continue reading

SEC To Propose Hedge Fund Manager Registration Rules

The SEC continues to closely follow its calendar of anticipated Dodd-Frank rulemaking activity and has posted a notice of an Open Meeting, to be held on Friday,  November 19, 2010 at 10:00 a.m.

The SEC plans to propose  Investment Advisers Act of 1940 rules:

  • requiring advisers to hedge funds and other private funds to register with the SEC;
  • addressing reporting by certain investment advisers that are exempt from registration;
  • increasing the statutory threshold for SEC  registration of investment advisers from $25 million in assets under management to $100 million;
  • implementing new exemptions from the registration requirements  for advisers to venture capital funds and advisers with less than $150 million in private fund assets under management in the United States; and
  • clarifying the meaning of certain terms included in a new exemption for foreign private advisers.

The SEC will consider proposed security-based swaps rules: Continue reading

SEC November Activities Implementing Dodd-Frank

The SEC staff continues its hard work on the rulemaking and studies mandated by the Dodd-Frank Act, signed into law by President Obama on July 21, 2010.

The SEC’s webpage captioned “Implementing the Dodd-Frank Wall Street Reform and Consumer Protection Act” consolidates links to all of the SEC’s related accomplishments to date, and includes a calendar of its planned activities implementing the Dodd-Frank Act through July 2011.

Highlights of the November, 2010 calendar relevant to hedge funds and investment advisers include:

  • §§407 and 408: Propose rules implementing the exemptions from registration for advisers to venture capital firms and for certain advisers to private funds
  • §410: Propose rules and changes to forms to implement the transition of mid-sized investment advisers (between $25 and $100 million in assets under management) from SEC to State regulation, as provided in the Act
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Joint Statement by CFTC Chairman Gary Gensler and European Commissioner Michel Barnier on the Financial Reform Agenda

Washington, DC –United States Commodity Futures Trading Commission (CFTC) Chairman Gary Gensler and European Commissioner Michel Barnier spoke today and reaffirmed their strong determination to cooperate closely in strengthening the global financial system. Specifically, Chairman Gensler and Commissioner Barnier discussed regulatory reform of the over-the-counter (OTC) derivatives markets with respect to Dodd-Frank Wall Street Reform and Consumer Protection Act and the September 2010 European proposal for a Regulation on OTC derivatives, central counterparties and trade repositories. Continue reading