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Article
Publication date: 2 July 2018

Vadim Avdeychik and Justin Capozzi

This paper aims to provide an overview of recent US Securities and Exchange Commission (SEC) Division of Investment Management staff (“Staff”) guidance related to…

Abstract

Purpose

This paper aims to provide an overview of recent US Securities and Exchange Commission (SEC) Division of Investment Management staff (“Staff”) guidance related to investment funds registered under the Investment Company Act of 1940 that seeks to provide exposure to cryptocurrencies or cryptocurrency-related products.

Design/methodology/approach

This paper provides analysis regarding the Staff’s view on registered investment companies that intend to invest in cryptocurrencies or cryptocurrency-related products, including an overview of the questions posed by the Staff with respect to registered investment companies that seek to hold cryptocurrencies or cryptocurrency-related products, which are divided into five categories: valuation, liquidity, custody, arbitrage (for exchange-traded funds) and potential manipulation and other risks.

Findings

The Staff is asking for additional information from industry participants to fully analyze and evaluate registered investment companies that seek to invest in cryptocurrencies.

Practical implications

The industry should continue to provide information to the Staff with the short-term goal of fostering an open dialogue and with the long-term goal of launching a registered investment company that invests in cryptocurrencies or cryptocurrency-related products.

Originality/value

This paper provides practical guidance from experienced lawyers of the Investment Company Act and Securities Act.

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Article
Publication date: 4 September 2017

Mark Amorosi, George Zornada, Todd Gibson, Joel Almquist and Pablo J. Man

To analyze the recent SEC no-action relief allowing a non-US investment company to invest as a feeder fund in a US registered open-end management investment company

Abstract

Purpose

To analyze the recent SEC no-action relief allowing a non-US investment company to invest as a feeder fund in a US registered open-end management investment company without complying with all of the conditions of Section 12(d)(1)(E) of the Investment Company Act of 1940.

Design/methodology/approach

This article discusses the various conditions that a non-US investment company investing as a foreign feeder in a US registered open-end management investment company must satisfy in order to avoid complying with certain provisions of Section 12(d)(1)(E) of the Investment Company Act of 1940. In addition, the article analyzes certain potential tax and regulatory challenges facing firms seeking to rely on the relief.

Findings

This article concludes that the SEC no-action relief is an incremental step in reducing barriers to global distribution of US registered funds and may marginally increase the use of cross-border master-feeder arrangements as contemplated by the no-action letter. Nevertheless, this article cautions that significant impediments to global distribution of US registered funds remain, including tax withholding and non-US law issues.

Originality/value

This article contains valuable information about the regulatory impediments to global distribution of US registered funds, as well as learned assessments of the impact of recent developments in this space by experienced securities lawyers.

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Article
Publication date: 8 June 2012

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…

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

Journal of Investment Compliance, vol. 13 no. 2
Type: Research Article
ISSN: 1528-5812

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Article
Publication date: 1 March 1997

Marybeth Sorady

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.

Details

Journal of Financial Regulation and Compliance, vol. 5 no. 3
Type: Research Article
ISSN: 1358-1988

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Article
Publication date: 29 November 2011

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…

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.

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Article
Publication date: 1 January 2005

Ricardo W. Davidovich

In the wake of the Securities and Exchange Commission’s (the “SEC”) adoption of new rule 203(b)(3)‐2 under the Investment Advisers Act of 1940, as amended (the “Advisers…

Abstract

In the wake of the Securities and Exchange Commission’s (the “SEC”) adoption of new rule 203(b)(3)‐2 under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), many investment advisers that provide advisory services to hedge funds, and that previously had benefited from an exemption from federal registration under the Advisers Act, now will find that they are no longer eligible for such exemption. They will have to become federally registered investment advisers. As a result, such advisers will find themselves subject to a variety of rules and regulations regarding various compliance matters. Significantly, for the first time these advisers also may be able to market their services

Details

Journal of Investment Compliance, vol. 5 no. 4
Type: Research Article
ISSN: 1528-5812

Keywords

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Article
Publication date: 13 March 2009

Richard K. Matta

The purpose of this paper is to provide an overview of how the Employee Retirement Income Security Act (“ERISA”) of 1974, as amended , applies to securities professionals…

Abstract

Purpose

The purpose of this paper is to provide an overview of how the Employee Retirement Income Security Act (“ERISA”) of 1974, as amended , applies to securities professionals such as registered investment advisers, registered broker‐dealers and individual registered representatives and financial planners who advise, manage, or trade for investment portfolios of private employee benefit plans and individual retirement accounts.

Design/methodology/approach

The paper is designed as a primer to familiarize securities professionals with the terminology, scope and subject‐matter of ERISA as it applies to benefit plan investment transactions. When appropriate, the regulatory framework of ERISA is compared and contrasted with the more familiar securities law regulatory scheme.

Findings

The various Federal laws loosely known as “ERISA” significantly impact securities professionals in connection with the marketing of financial products and services to employee benefit plans, including IRAs, and it is critical that securities professionals have a general overview of how they do so.

Research limitations/implications

The research set out is only a broad summary, and covers an area of law that is rapidly developing. It should not be considered a definitive summary of the law but a starting‐point for further, in‐depth inquiry.

Practical implications

Any financial professional seeking to develop or market financial products and services to benefit plans can use the paper to become familiar with the framework and terminology of ERISA.

Originality/value

This is a reprint of a paper first published in 2004, with extensive revisions to reflect sweeping changes in the law and new developments in the financial marketplace, plus an overview of “hot topics”.

Details

Journal of Investment Compliance, vol. 10 no. 1
Type: Research Article
ISSN: 1528-5812

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Article
Publication date: 1 January 2004

Richard K. Matta

The following is an overview of how the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), applies to securities professionals such as registered

Abstract

The following is an overview of how the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), applies to securities professionals such as registered investment advisers (“RIAs”) and registered broker‐dealers who advise, manage, or trade for investment portfolios of employee benefit plans subject to ERISA. The principal focus of this outline is on securities registered under the Securities Act of 1933 (the “1933 Act”) and the Securities Exchange Act of 1934 (the “1934 Act”), and securities of investment companies registered under the Investment Company Act of 1940. Many of these principles also will apply directly to unregistered securities, as well as to other investments offered by banks, insurance companies, commodity trading advisers and real estate advisers, though there may be some variation.

Details

Journal of Investment Compliance, vol. 5 no. 1
Type: Research Article
ISSN: 1528-5812

Keywords

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Article
Publication date: 1 January 2005

Carolyn E. Taylor

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…

Abstract

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.”

Details

Journal of Investment Compliance, vol. 5 no. 4
Type: Research Article
ISSN: 1528-5812

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Article
Publication date: 1 April 2006

Thomas S. Harman and Monica L. Parry

To discuss factors that a private fund advisor should consider in its decision to remain registered with Securities and Exchange Commission (SEC) or to deregister in light…

Abstract

Purpose

To discuss factors that a private fund advisor should consider in its decision to remain registered with Securities and Exchange Commission (SEC) or to deregister in light of the D.C. Court of Appeals June 2006 decision in Goldstein v. Securities and Exchange Commission.

Design/methodology/approach

Analyzes and compares the advantages and disadvantages of staying registered and deregistering; discusses the requirements of state registration for advisers that are note registered with the SEC; and analyzes the consequences to private fund advisors if the SEC does not repropose certain rule amendments adopted along with Rule 203(b)(3)‐2 concerning bookkeeping, performance fees, and custody.

Findings

Advisers should carefully consider their facts and circumstances and their business plans when analyzing the consequences of deregistration with the SEC – most importantly, the possibility of multiple state registration – before filing to deregister. Especially if the SEC restores the rule amendments the Goldstein decision struck down, staying with the SEC – the regulator you know – may be better than registering with a state.

Originality/value

Provides an up‐to‐date analysis of factors that private funds should consider concerning SEC registration in light of the recent Goldstein decision.

Details

Journal of Investment Compliance, vol. 7 no. 2
Type: Research Article
ISSN: 1528-5812

Keywords

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