For the foreign investment adviser wishing to do business in the USA, the regulatory climate has never been more propitious. This paper describes the recently restructured…
Abstract
For the foreign investment adviser wishing to do business in the USA, the regulatory climate has never been more propitious. This paper describes the recently restructured framework of federal and state law and regulation applicable to non‐US advisers that provide investment advisory services to US clients, whether from abroad or through a US subsidiary or affiliate. For those advisers that will register either themselves or subsidiaries or affiliates as investment advisers in the US, the paper first describes the requirements of the Investment Advisers Act of 1940 (Advisers Act), rules thereunder and significant interpretations and discusses the SEC's recent enforcement priorities. It then discusses the scope of and limitations imposed under recent interpretations permitting non‐US advisers that register in the USA to comply with US restrictions only in connection with their US clients. Finally, the paper discusses other legal and regulatory provisions that apply if the adviser offers interests in a pooled investment vehicle (ie an investment company) in the USA.
For the sponsor or manager of a non‐US investment fund, the mantle of US laws and regulations surrounding the offering of fund shares to US investors can be mystifying. In an…
Abstract
For the sponsor or manager of a non‐US investment fund, the mantle of US laws and regulations surrounding the offering of fund shares to US investors can be mystifying. In an effort to simplify and clarify the legal miasma, the US Congress and Securities and Exchange Commission (SEC) have in the past year taken action to facilitate the offering of interests to more sophisticated investors in both foreign and domestic private investment funds. This paper describes the recent legislation enacted by Congress, rules and interpretations issued by the SEC and its staff to implement and effectuate the legislation and strategies for privately offered investment companies to take advantage of the new, more liberal regulatory scheme.
ANTHONY S. EVANGELISTA and MARYBETH SORADY
Valuation of portfolio securities continues to hold the limelight in the arena of mutual fund regulation. For the last four years, mutual fund regulators have repeatedly…
Abstract
Valuation of portfolio securities continues to hold the limelight in the arena of mutual fund regulation. For the last four years, mutual fund regulators have repeatedly emphasized the need to adopt or revise procedures to address valuation issues that address modern market conditions resulting from such forces as globalization and the development of derivatives and other exotic securities.
Peter J. Shea, Kathleen H. Moriarty, Kenneth M. Rosenzweig, Marybeth Sorady and Gregory E. Xethalis
The purpose of this article is to explain the implications for registered fund advisors of the February 9, 2012 final amendments the Commodity Futures Trading Commission (CFTC…
Abstract
Purpose
The purpose of this article is to explain the implications for registered fund advisors of the February 9, 2012 final amendments the Commodity Futures Trading Commission (CFTC) made to its Rule 4.5 exemption from commodity pool operator (CPO) registration for registered funds.
Design/methodology/approach
This article explains how amended Rule 4.5 will be applied to advisors and sub‐advisors of registered investment companies and the managers of foreign corporations controlled by registered investment companies. The article also describes the expected impact of the CPO compliance regime under a proposed harmonization of CFTC CPO regulation with Securities and Exchange Commission regulation of registered fund advisers.
Practical implications
All registered fund advisers should conduct a review of each of their registered funds' portfolios, investment strategies and marketing materials to evaluate their status as CPOs by the compliance deadline. Advisers who cannot comply with the amended Rule 4.5 by the compliance deadline should prepare for CPO registration.
Originality/value
The paper provides practical guidance from experienced financial services lawyers.
Details
Keywords
Marybeth Sorady, Daren Domina, Wendy Cohen, Fred Santo, Henry Bregstein, Meryl Wiener, Marilyn Okoshi and Jack P. Governale
This paper aims to explain the rules recently adopted by the Securities and Exchange Commission under the provisions of the Dodd‐Frank Wall Street Reform and Consumer Protection…
Abstract
Purpose
This paper aims to explain the rules recently adopted by the Securities and Exchange Commission under the provisions of the Dodd‐Frank Wall Street Reform and Consumer Protection Act relating to the increased asset threshold for federal registration as an investment adviser, the new exemptions from investment adviser registration (including the exclusion of “family offices” from the definition of an investment adviser), the enhanced reporting obligations imposed on registered and certain exempt advisers, and the definition of a “qualified client” for purposes of applying the performance fee rule under the Investment Advisers Act.
Design/methodology/approach
This paper summarizes the principal content of the Rules and explains their application to investment advisers, focusing in particular on analyzing the impact of the Rules on US and non‐US advisers to private funds.
Findings
The Rules clarify important aspects of the Dodd‐Frank amendments to the Investment Advisers Act and expand the scope of certain registration exemptions as they relate to foreign advisers. The Rules also expand significantly the family office exclusion from investment adviser status.
Originality/value
The paper provides expert guidance from experienced financial services lawyers.