Jay G. Baris

Jay G. Baris

Morrison & Foerster LLP

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Examination Priorities for 2017 from FINRA and OCIE

In these uncertain times, the predictability and regularity of the annual priorities letters from FINRA and the Securities and Exchange Commission’s (SEC) Office of Compliance Inspections and Examinations (OCIE) is...more

2/23/2017 - Anti-Money Laundering Broker-Dealer Cybersecurity ETFs Examination Priorities FINRA Investment Adviser OCIE Retail Investors SEC Securities Transactions

SEC 2017 Exam Priorities: Key Takeaways

Amid the extensive list of exam priorities for this year, there are several highlights that will require attention from operations personnel - Far from the White House and the halls of Congress, compliance officers are...more

2/16/2017 - Investors OCIE Retail Investors SEC SEC Examination Priorities Senior Investors Trump Administration

The Future of Investment Management Regulation: What to Expect in 2017

In this fast-changing regulatory environment, the long-term consequences – both intended and unintended – of recent White House actions remain uncertain, but looking into our crystal ball, we see certain trends emerging....more

2/15/2017 - Asset Management DOL Fiduciary Rule Investment Companies Investment Management Presidential Memorandum SEC Two For One Rule

Investment Management Legal + Regulatory Update – February 2017

REGULATION - DOL Issues Additional Guidance on Fiduciary Rule - On January 13, 2017, the U.S. Department of Labor (“DOL”) issued a second set of guidance on its new fiduciary rules, which are scheduled to become...more

2/2/2017 - Attorney-Client Privilege Broker-Dealer Brokers Capital Acquisition Broker (CAB) Conflicts of Interest Cross-Selling DOL Examination Priorities Exploitation Fiduciary Rule FINRA Investment Adviser Liquidity Risk Management Rule Mutual Funds OCIE Pay-To-Play Sales Load Variations SEC Section 36(b) Swing Pricing Trustees

Structured Thoughts: News for the financial services community, Volume 8, Issue 1

U.S. Court of Appeals Upholds SEC’s Backtesting Finding - In a 2016 case before the U.S. Court of Appeals for the D.C. Circuit, a former investment adviser lost a petition to review and vacate the decision of an SEC...more

1/25/2017 - Broker-Dealer DOL Examination Priorities Fiduciary Rule FINRA OCIE SEC

Mutual Funds Come Clean: Brokers Can Set Fund Share Sales Charges

The staff of the SEC’s Division of Investment Management effectively allowed brokers to determine the commissions they will charge their customers who buy “Clean Shares” of mutual funds. In a “no-action” letter...more

1/24/2017 - Brokers Division of Investment Management Fiduciary Rule Investment Company Act of 1940 Mutual Funds No-Action Letters SEC

OCIE 2017 Exam Priorities: Focus on Retail, Elderly and Retirement Investors; Market Risks

The SEC’s National Examination Program (NEA) of the Office of Compliance Inspections and Examinations (OCIE) announced that its examination priorities in 2017 will focus on three general areas: retail investors, risks...more

1/13/2017 - Anti-Money Laundering Cybersecurity ETFs FINRA Money Market Funds OCIE Retail Investors SEC SEC Examination Priorities

A Case of Appendicitis: SEC Staff Guidance on Sales Load Variation Disclosures Sends Funds Scrambling

A Guidance Update published in December 2016 by the SEC’s Division of Investment Management has sent funds scrambling to beef up prospectus disclosures to accommodate changes to fees charged by financial intermediaries before...more

1/9/2017 - Broker-Dealer Conflicts of Interest DOL Guidance Update Intermediaries Investment Management SEC

FINRA Issues 2017 Examination Priorities Letter

Introduction - Consistent with prior practice, with the arrival of the new year, FINRA has published its key examination priorities. As in prior years, the letter covers a broad array of topics. This year’s topics...more

1/9/2017 - Broker-Dealer Examination Priorities FINRA Investors SEC

Unfinished Business: SEC Chair Details Rules Ready to Go

In a letter dated December 12, 2016, to the Chair of the Senate Committee on Banking Housing and Urban Affairs, SEC Chair Mary Jo White took issue with a request to defer consideration of new rulemaking during the...more

12/29/2016 - Bank Holding Company Broker-Dealer Derivatives Investment Companies SEC Shareholders Swap Dealers

Big Regulatory Changes in Store for Funds and Advisers? No One Knows for Certain, but Here’s Our Best Guess

While no one knows for sure what the future holds for investment management regulation, the tea leaves indicate that we may expect a slowdown on new regulations, some pullback on parts of the Dodd-Frank Wall Street Reform and...more

12/8/2016 - Accredited Investors Broker-Dealer Business Development Dodd-Frank DOL Enforcement ETFs Fiduciary Rule Independent Director Investment Adviser Investment Companies Investment Management Presidential Elections SEC SIFIs Transition Team Trump Administration Volcker Rule

SEC Approves New Liquidity Risk Management Rules; Swing Pricing Rules

The SEC today unanimously approved “transformational” new rules requiring liquidity risk management programs. The SEC also approved a swing pricing rule by a vote of 2-1, with Commissioner Piwowar voting against...more

10/14/2016 - EFTs Liquidity Mutual Funds Risk Management SEC

SEC Adopts New Reporting Rules for Mutual Funds

A split SEC today approved new rules addressing mutual fund disclosures and liquidity. Chair White and Commissioner Stein voted yes; Commissioner Piwowar voted no. Here are the highlights of the new reporting...more

10/13/2016 - Liquidity Mutual Funds Reporting Requirements SEC

SEC FY 2016: A Record Year for Enforcement Cases Against Funds and Advisers

On October 11, 2016, the Securities and Exchange Commission announced that it prosecuted a record number of enforcement cases against investment advisers and investment companies in the fiscal year ended September 30, 2016....more

10/13/2016 - Disgorgement Enforcement Actions FCPA Investment Adviser Investment Companies Penalties SEC

Randy “Tandy” Dandy No More

On October 5, 2016, the SEC unceremoniously dropped a long-standing requirement that issuers affirmatively state that they will not raise the SEC review process and acceleration of effectiveness as a defense to legal...more

10/7/2016 - SEC SEC Comment Letter Process Tandy Letter

House Bill Would Ease Regulatory Restrictions to Private Fund Advisers

On September 9, 2016, the U.S. House of Representatives approved a bill that would amend the Investment Advisers Act of 1940 to modernize certain disclosure requirements and lessen regulatory burdens on private fund advisers....more

9/22/2016 - Disclosure Requirements Dodd-Frank Form ADV Investment Advisers Act of 1940 Popular Private Funds SEC Small Business

The SEC Adopts Amendments to Form ADV and Recordkeeping Rule: Advisers Now Required to Disclose Information About Separately...

The Securities and Exchange Commission (SEC) recently amended Form ADV to require investment advisers to disclose more information about their separately managed account business, aggregate data related to the use of...more

9/1/2016 - Asset Class Books & Records Borrowers Custodians Derivatives Disclosure Requirements Form ADV Investment Adviser Investment Advisers Act of 1940 Private Equity RAUM Recordkeeping Requirements SEC Umbrella Registration

Investment Management Legal + Regulatory Update - August 2016

Regulation - Next on the SEC’s Regulatory Agenda: A Chief Valuation Officer? - First, the SEC required funds to designate a chief compliance officer. Then, the SEC proposed that funds designate a liquidity...more

8/16/2016 - Advisors Act Auditors BDC Broker-Dealer Business Continuity Plans Business Development Companies CFTC Commodity Futures Contracts Commodity Pool Customer Due Diligence (CDD) ETFs FinCEN FSOC OCIE Private Equity Qualified Client Risk Management SEC

SEC Eases Regulatory Burden for Listing Actively Managed ETFs

The Securities and Exchange Commission took a step toward streamlining the approval process for actively managed ETFs last week by approving rule proposals from two securities exchanges....more

7/25/2016 - BATS Exchange ETFs Investment Company Act of 1940 Listing Standards SEC Securities Exchange Act

SEC Proposes Business Continuity and Transition Rules for Advisers While Staff Publishes Similar Guidance for Funds

The SEC’s Division of Investment Management published regulatory guidance on June 28, 2016, highlighting the need for registered investment company complexes to review their business continuity plans to ensure they are...more

7/5/2016 - Business Continuity Plans Investment Adviser Investment Funds Investment Management Registered Investment Companies (RICs) SEC

SEC Charges Private Fund Administrator with “Gatekeeper Failures”

Add fund administrators to the list of service providers the SEC expects to act as “gatekeepers.” In two separate settled actions last week, the SEC found that a private fund administrator “caused” the managers’ unregistered...more

6/24/2016 - Disgorgement Enforcement Actions Fund Managers Investment Adviser Penalties Private Equity Funds SEC Unregistered Funds

SEC Staff Throws Funds a Lifeline on Auditor Independence (For Now)

The SEC’s Division of Investment Management provided temporary relief from the headache created for funds when the failure to meet the provisions of the so-called “loan rule” may disqualify fund auditors from being...more

6/22/2016 - Accountants Audits Enforcement Actions Financial Statements Fund Managers Loans No-Action Letters PCAOB Regulation S-X SEC

Next on the SEC regulatory agenda: a chief valuation officer?

First, the Securities and Exchange Commission required funds to designate a chief compliance officer. Then, the SEC proposed that funds designate a liquidity risk manager, and after that, a derivatives risk manager. Can a...more

6/21/2016 - Board of Directors Chief Compliance Officers Corporate Officers Dodd-Frank Fair Market Value FSOC Liquidity Risk Management SEC Valuation Experts

FINRA Proposes Initial Round of Amendments to Communications Rules

In May 2016, FINRA filed with the SEC proposed revisions to its communications rules that include a few substantive revisions to existing rules, ease some burdensome filing requirements, and leave the door open for future...more

6/7/2016 - Amended Regulation Disclosure Requirements Educational Communications Rule Filing Requirements FINRA Investment Companies Investor Protection Rule 2210 SEC

MJW to FSOC:  We’re On It

In a keynote address before the Investment Company Institute on May 20, 2016, SEC Chair Mary Jo White signaled to the Financial Stability Oversight Counsel (FSOC) that the SEC is “working hard” to finalize rules that address...more

6/2/2016 - Asset Management Banking Regulators Cybersecurity Derivatives EFTs FSB FSOC Investment Companies Mary Jo White SEC

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