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Beginning in January 2001, investment advisers registered with the Securities and Exchange Commission (“SEC”) will begin filing their registration forms electronically through the new Investment Adviser Registration Depository (IARD). The IARD is a Web‐based filing system operated by NASD Regulation (the NASD‐R), that will enable advisers and their representatives to submit their filings with the SEC and state regulators electronically similar to the current method used by broker‐dealers to submit filings on the Web CRDSM system. Other significant aspects of the new system include the ability for investors to search the IARD database to get current information about advisers, including the services they provide, fees they charge, their conflicts of interest, and disciplinary history. To finance the development and operation of the IARD, advisers will now be required to pay initial and annual filing fees to the NASD‐R.

The aim of this paper is to provide hedge fund and other private fund managers with a brief recap of regulatory changes in 2010 and a reminder of certain “best practices” they should consider as they prepare for 2011.

The paper provides 2010 regulatory highlights, including relevant provisions of the Dodd‐Frank Wall Street Reform and Consumer Protection Act, the Pay‐to‐Play Rule, and amendments to Form ADV. It outlines issues for consideration in 2011, including preparation for SEC registration (if applicable), review of compliance policies and procedures, updating Form ADV, Form D and Blue Sky Filings, “custody rule” (Rule 206(4)‐2 under the Advisers Act) compliance, other regulatory filings that may be required (including Form 13F, Schedule 13D/13G, and Forms 3, 4, and 5), CFTC regulatory requirements for investment managers who trade or advise others on trading commodity futures contracts, certain tax considerations (including foreign bank, brokerage and other financial account (FBAR) reporting requirements), the Foreign Tax Compliance Act of 2009 (FACTA)), ERISA and Department of Labor considerations, fee deferral arrangements, and offering document updates.

This summary is not intended to provide a complete list of an investment manager's obligations relating to its compliance with applicable rules and regulations or to serve as legal advice. It does not address any non‐US or state law requirements and has not been tailored to the specific needs of a particular investment manager's business.

This paper provides useful summary practical guidance from experienced financial institutions lawyers.

Wrap fee programs are an increasingly popular product offered by broker‐dealers and investment managers to their clients. Wrap fee programs present unique issues under both the Investment Company Act of 1940 (“Investment Company Act”) and the Investment Advisers Act of 1940 (“Advisers Act”), the two primary bodies of law that govern the product and those who offer and manage it. The regulations and rules under those Acts applicable to wrap fee programs and related interpretive statements made by the SEC staff, however, are wide ranging and have not been provided in a single format. This article attempts to present a comprehensive discussion on the regulation of wrap fee programs, as well as the many compliance issues associated with these programs. The article is delivered in two parts. Part I, presented in this issue, addresses the regulation of wrap fee programs under the Investment Company Act. Part I also begins a review of unique issues arising under the Advisers Act, including registration requirements for wrap fee sponsors and other persons who manage or offer the product to their clients, as well as required contents for wrap fee brochures and related disclosure issues. Part II, which will be presented in the next issue, will discuss additional Advisers Act issues such as suitability, fees and advertising. It also will briefly review issues arising under the Securities Exchange Act of 1934 (“Exchange Act”) and the Employee Retirement Income Security Act of 1974 (“ERISA”).

To explain proposed rules and amendments recently issued by the USA Securities and Exchange Commission (SEC) that would impose more detailed reporting requirements for investment advisers that file Form ADV. A companion article describes the SEC’s proposed registered investment company reporting rules which were issued simultaneously.

Describes the SEC’s reasoning for collecting more detailed data, introduces the proposed separate account reporting requirements for SEC-registered investment advisers, explains proposed amendments to Part 1A of Form ADV, describes a proposed codification of SEC staff positions that provide for so-called “umbrella registrations” by closely related advisory firms, and details two proposed amendments to Advisers Act Rule 204-2, the books and records rule, which would require investment advisers to maintain additional materials related to the calculation and distribution of performance information.

Many questions still remain as to how the final rules will eventually take shape; however, it is evident that investment advisers will be subject to a wider array of reporting requirements. Investment advisors are likely to incur increased costs as a result of the proposed rules and amendments, and production of the reports could necessitate a revamp of their various internal procedures. Also, access to additional and enhanced information will have consequences for investment companies with respect to SEC examinations and enforcement activity.

Investment advisers should understand that detailed new regulatory reporting is coming and, more specifically, separately managed account clients of investment advisers should be made aware of the proposed reporting requirements.

Practical guidance from experienced investment funds lawyer.

On October 26, 2004 the Securities and Exchange Commission (the “SEC”) adopted new rules and rule amendments under the Investment Advisers Act of 1940 (the “Advisers Act”) that will require most hedge fund managers to register with the SEC as investment advisers by February 1, 2006. The actions taken by the SEC will necessitate that hedge fund managers begin preparing for SEC registration at least four to six months in advance of registration. In light of these new rules, this article summarizes: The significant provisions of the Advisers Act that hedge fund managers will need to become familiar with; The SEC registration process that a hedge fund adviser will have to follow; The SEC inspection program and some practical tips that hedge fund advisers should consider implementing. Because the regulatory framework imposes a variety of obligations and prohibitions on hedge fund managers, who, up until now, have operated without significant regulatory oversight, we recommend that fund managers who are likely to become subject to the registration rules should, well in advance of the February 1, 2006 registration deadline, familiarize themselves with the legal and operational changes that will affect them and assemble the information they will need to commence and complete the registration process. This article is designed to introduce fund managers to that framework.

This article takes a close look at the requirements of the 1940 Investment Advisors Act for both registered and unregistered investment advisors — such as hedge funds and private equity funds. It highlights the significant issues that arise from the regulation for unregistered funds that are considering the consequences of SEC registration. It also reviews briefly the requirements of the Act that are already applicable to unregistered investment advisors.

The author, both an attorney and CPA, explores the complex and perhaps out‐of‐date Advisors Act Rule 206(4)‐2, the Custody Rule. He explores the rule and the obligations and concerns that arise when an investment advisor is deemed to have custody.

A hedge fund manager typically falls within the definition of an “investment adviser” under the Investment Advisers Act of 1940 (“Advisers Act”). Persons who fall within this definition generally must register with the SEC and are subject to all applicable requirements under the Advisers Act and it related rules. However, the Advisers Act and its rules currently provide an exemption from SEC registration that is available to many hedge fund managers. In light of recent suggestions by SEC officials to greatly restrict or eliminate the exemption, this article summarizes the most significant consequences of SEC registration for hedge fund managers.

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.

On October 26, 2004, the Securities and Exchange Commission (the “Commission” or the “SEC”) adopted a new rule and related amendments requiring, among other things, that hedge fund managers register with the SEC under the Investment Advisers Act of 1940, as amended (the “Advisers Act”) by February 1, 2006. In this article, we refer to the totality of the recent rulemaking as the “new rules.” The new rules and a lengthy interpretive release (the “Adopting Release”) were made available to the public on December 2, 2004.The new rules only slightly modify the text of the proposed rules published by the SEC on July 20, 2004. We will refer to the July 20, 2004 rules as the “proposed rules.” The proposed rules, which were opposed by two of the five SEC commissioners at the time they were announced, provoked a loud outcry and strong opposition. According to the Adopting Release, the SEC received 161 comment letters from investors, hedge fund managers, mutual fund managers, law firms, and others. Of these, only 36 supported the proposed rules, 83 argued against them, and the remainder presented a neutral view. The objections included “concerns about the costs of compliance under the new rule[s], questions about [SEC] effectiveness in preventing hedge fund fraud, and the potential intrusiveness of [SEC] oversight of hedge fund managers.”