SEC

SEC Adopts Amendments to Form ADV

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On August 25,  2016, the Securities and Exchange Commission (SEC) adopted amendments to Form ADV that are designed to provide additional information regarding advisers, including information about their separately managed account business, incorporate a method for private fund adviser entities operating a single advisory business to register using a single Form ADV, and make clarifying, technical and other amendments to certain Form ADV items and instructions. The SEC also adopted amendments to the Investment Advisers Act of 1940 books and records rule.

In particular, the amendments to Part 1A of Form ADV are intended to provide a more efficient method for the registration on one Form ADV of multiple private fund adviser entities operating a single advisory business (“umbrella registration”). Although under existing staff guidance a large number of advisers have already been making umbrella registration filings, the method outlined in the staff guidance for filing an umbrella registration was limited by the fact that the form was designed for a single legal entity. These amendments are intended to eliminate confusion for filers and the public. Press release.

New Jersey Appellate Court Clarifies Definition of Compensation under Advisers Act

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On August 12, 2016, the United States Court of Appeals for the Third Circuit affirmed the decision of the District Court of New Jersey and held in United States v. Everett C. Miller that the defendant was an “investment adviser” within the meaning of the Investment Advisers Act of 1940 (the “Advisers Act”), notwithstanding defendant’s arguments that he did receive “compensation” and was not engaged “in the business” of acting as an investment adviser.

The Advisers Act does not explicitly define “compensation” or what constitutes being engaged “in the business.”  Consequently, the Court of Appeals based its decision on a 1987 Release issued by the Staff of the Securities and Exchange Commission (Investment Advisers Release No. 1092) which states, in part: “The Staff considers a person to be ‘in the business’ of providing advice if the person . . . holds himself out as an investment adviser or as one who provides investment advice.” In reaching its decision that the defendant provided advice for “compensation,” the Court recognized that the Advisers Act also does not define “compensation.”  The Court again cited the SEC Release which defines compensation as “any economic benefit, whether in the form of an advisory fee or some other fee relating to the total services, rendered, commissions, or some combination of the foregoing . . .” and concluded that: “It is not necessary that an investor pay a discrete fee specifically earmarked as payment for investment advice.”  Opinion.

SEC Proposes Amendments to Update and Simplify Disclosure Requirements as Part of Overall Disclosure Effectiveness Review

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On July 13, 2016, the Securities and Exchange Commission proposed amendments to various disclosure provisions in order to eliminate duplicative provisions and modernize the relevant requirements.   After the proposed amendments are published in the Federal Register, the comment period will be open for 60 days. Release. Proposed Rule.

SEC Proposes Rules to Enhance Order Handling Information Available to Investors

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On July 13, 2016, the Securities and Exchange Commission proposed rules that “for the first time would require broker-dealers to disclose the handling of institutional orders to customers … [and] would expand the information included in existing retail order disclosures.” After the proposed rules are published in the Federal Register, the comment period will be open for 60 days. Release. Proposed Rule.

SEC Proposes Rule Requiring Investment Advisers to Adopt Business Continuity and Transition Plans

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On June 28, 2016, the Securities and Exchange Commission proposed a new rule that would require registered investment advisers to adopt and implement written business continuity and transition plans.  In announcing the proposed rule the SEC stated that:  “The proposed rule is designed to ensure that investment advisers have plans in place to address operational and other risks related to a significant disruption in the adviser’s operations in order to minimize client and investor harm.”

The risks identified by the SEC include: business disruptions – whether temporary or permanent – such as a natural disaster, cyber-attack, technology failures, and the departure of key personnel.

The proposed rule also would require an adviser’s plan to include policies and procedures addressing the following specified components: maintenance of systems and protection of data; pre-arranged alternative physical locations; communication plans; review of third-party service providers; and plan of transition in the event the adviser is winding down or is unable to continue providing advisory services.

The proposed rule and rule amendments also would require advisers to review the adequacy and effectiveness of their plans at least annually and to retain certain related records.

In addition to the proposed rule, SEC staff issued related guidance addressing business continuity planning for registered investment companies, including the oversight of the operational capabilities of key fund service providers.

The proposed rule can be found by clicking here. Comments are due on or before September 6, 2016.

SEC Adopts Rule on Disclosure of Payments by Resource Extraction Issuers

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On June 27, 2016, the Securities and Exchange Commission announced that it adopted rules, mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act, to require resource extraction issuers to disclose payments made to governments for the commercial development of oil, natural gas or minerals.  The rules are intended to promote greater transparency regarding payments related to resource extraction. Release. Final Rule.

SEC Approves IEX Proposal to Launch National Exchange, Issues Interpretation on Automated Securities Prices

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On June 17, 2016, the Securities and Exchange Commission (“SEC”) approved the application of Investors’ Exchange LLC (“IEX”) to register as a national securities exchange. Prior to transitioning its operation to a national securities exchange, IEX must satisfy certain standard conditions specified in the SEC’s order, such as “participating in a variety of national market system plans and joining the Intermarket Surveillance Group.”

Additionally, the SEC issued an updated interpretation to the Order Protection Rule under Regulation NMS. The SEC’s updated interpretation determined that a small delay or “speed bump” when accessing automated securities prices will not “prevent investors from accessing stock prices in a fair and efficient manner consistent with the goals of the Order Protection Rule.” Release.

SEC Proposes Rules to Modernize Property Disclosures for Mining Registrants

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On June 16, 2016, the Securities and Exchange Commission (“SEC”) announced that it had proposed rules to update the disclosure requirements for mining properties. The proposed revisions are meant to align disclosure requirements with “current industry and global regulatory practices and standards.” The proposed rules would, among other updates, revise Regulation S-K to include in a new subpart the SEC’s mining property disclosure requirements. The proposed rules would also rescind Industry Guide 7. Release.