Jay G. Baris

Jay G. Baris

Morrison & Foerster LLP

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SEC Staff Offers Guidance Regarding Investment Advisers and Proxy Advisory Firms

The SEC’s Division of Investment Management and Division of Corporation Finance published joint guidance on June 30, 2014 regarding investment advisers’ responsibilities in voting client proxies, and two exemptions from the...more

7/3/2014 - Investment Adviser Proxies Proxy Advisors Proxy Voting Guidelines SEC

SEC Staff Closes Loophole on BDC Asset Coverage Requirements

In a Guidance Update published on June 30, 2014 by the SEC’s Division of Investment Management, the staff closed a loophole that allowed business development companies (BDCs) with wholly owned Small Business Investment...more

7/2/2014 - Business Development Companies Debt Securities Guidance Update SBA SEC Subsidiaries

SEC Staff Warns Against “Disclosure Creep”

The staff of the SEC’s Division of Investment Management warned against “disclosure creep” invading fund prospectuses in regulatory guidance posted in June 2014....more

6/30/2014 - Disclosure Disclosure Requirements Investment Funds OCIE Prospectus SEC

SEC Staff: Measure Percentage Ownership by Fund, not by Complex

In its June 2014 Guidance Update, the SEC’s Division of Investment Management said that series funds are individual investment companies for purposes of compliance with certain investor protections, including the 1940 Act’s...more

6/26/2014 - Investors OCIE SEC Series Funds

Investment Management Legal + Regulatory Update -- June 2014

In This Issue: - Regulation ..SEC Begins to Scrutinize Registrants’ Cybersecurity Practices ..SEC Staff Sets Boundaries for Adviser Testimonials in Social Media ..Chair White: SEC to Tackle High-Frequency...more

6/16/2014 - Broker-Dealer Cybersecurity Dark Pool FINRA High Frequency Trading Investment Adviser Issuers JOBS Act Legislative Agendas Marijuana New Legislation Private Equity Funds SEC SEC Commissioner SIFIs Transaction Fees

Spreading Sunshine or Shining a Spotlight?

In a recent speech, Andrew Bowden, Director of the SEC’s Office of Compliance Inspections and Examinations (OCIE) “spread sunshine” on private equity industry practices gathered through so-called “presence exams” of newly...more

5/13/2014 - Compliance Enforcement Actions OCIE Private Funds SEC

SEC Correction: Reinstating an Exception to an Exception to an Exception

No one could be blamed for having difficulty understanding the intricacies of the rules under Section 17(d) of the Investment Company Act, the statute that prohibits “joint transactions” without an SEC order. At the end of...more

4/3/2014 - Compliance Enforcement SEC

Division of Investment Management Lists 2013 Accomplishments; Sets 2014 Agenda

The SEC’s Division of Investment Management summarized its activities in 2013, highlighting its intensified rulemaking program, efforts to identify new and emerging risks and its disclosure initiatives. The Division also took...more

4/2/2014 - Compliance Enforcement SEC

SEC Sanctions Non-U.S. Firm for Failing to Register as Broker-Dealer/Adviser

The SEC charged a non-U.S. multi-national financial institution with a large U.S. presence with violating federal securities laws by providing brokerage and investment advisory services to U.S. clients without registering...more

4/2/2014 - Broker-Dealer Investment Adviser Registration SEC

Private Company M&A Brokers Don’t Need to Register With the SEC as Broker-Dealers

On January 31, 2014, the SEC issued a ground-breaking no-action letter, taking the position that a financial intermediary that limits its business activity to advising privately held companies in M&A transactions need not...more

2/7/2014 - Broker-Dealer No-Action Letters Registration SEC

SEC Sanctions Adviser for Failing to Inform ERISA Clients of Improper Investment Allocation

The Securities and Exchange Commission sanctioned an investment adviser for allowing some of its ERISA plan clients to invest in private placements, even though the issuer specifically restricted investments by ERISA plans. ...more

2/4/2014 - Breach of Contract Cease and Desist Enforcement Actions ERISA Private Placements SEC

SEC Staff Urges Bond Fund Advisers to Reassess Risk Management in Light of Market Volatility

The SEC’s Division of Investment Management recommends that fixed income fund advisers take steps to assess portfolio risk in light of “potential market volatility” and review the adequacy of related prospectus disclosures....more

1/29/2014 - Bonds Investment Adviser Risk Management SEC

Investment Management Legal + Regulatory Update -- December 2013

In This Issue: Regulatory Updates - SEC Continues to Look at a Uniform Fiduciary Standard for Broker-Dealers and Investment Advisers; SEC Grants Unusual Exemptive Relief from Pay-to-Play “Time-Out” Provision;...more

12/11/2013 - Broker-Dealer Compliance Conflicts of Interest Directors Fiduciary Duty FINRA Investment Funds SEC

House Passes Bill to Restore Registration Exemption for Private Equity Fund Advisers

The United States House of Representatives passed a bill on December 4, 2013, that would restore an exemption from registration to advisers of certain private equity funds that limit leverage, an attempt to undo another...more

12/5/2013 - Dodd-Frank Investment Adviser Investment Advisers Act of 1940 Private Equity Proposed Legislation Registration Reporting Requirements SEC

“Guaranteed!” “Protected!” Blog Entry on Fund Names

The SEC’s Division of Investment Management is cracking down on funds that use names that suggest safety or protection from loss. In Guidance Update No. 2013-12, the staff stated that fund names suggesting safety or...more

11/20/2013 - Enforcement Investors Misrepresentation NAV SEC

No-Action Relief Allows Business Development Companies to Hold Shares of Investment Advisers

In two separate no-action letters, the SEC staff quietly expanded the ability of business development companies (BDCs) to invest in registered investment advisers. Section 12(d)(3) of the Investment Company Act of 1940...more

11/19/2013 - Business Development Companies Investment Company Act of 1940 No-Action Letters No-Action Relief SEC

Halloween Shivers: Frightening Times Ahead for RIAs?

Two Halloween announcements by securities regulators may frighten investment advisers. The October 31 statements from the SEC and the North American Securities Administrators Association (NASAA) suggest that federal and...more

11/5/2013 - Compliance Dodd-Frank NASAA OCIE SEC

BDC Reform Bills Face Uncertain Future

Three bills introduced in the House of Representatives that would ease leverage restrictions on business development companies (BDCs) face an uncertain future in light of concerns expressed by the Chair of the Securities and...more

11/4/2013 - Asset Class Business Development Companies Investors SEC Small Business

SEC’s Champ to Fund Directors: Let’s Work Together to Advance a Common Purpose

The Director of the SEC’s Division of Investment Management seeks a “successful collaboration” between fund directors and the SEC staff to further a common purpose: to protect investors....more

10/29/2013 - Compliance Directors Fund Managers SEC

White on Serving as Fund Director: Not for the Uninitiated or Faint of Heart

SEC Chair Mary Jo White dismissed suggestions that the SEC’s recent focus on “gatekeepers,” including fund directors, may drive away qualified candidates “for fear of being second-guessed or blamed for every issue that...more

10/25/2013 - Enforcement Mary Jo White SEC

Financial Fraud Law Report: October 2013 - Insider Trading in Mutual Funds: Do Traditional Theories Apply?

A federal court of appeals recently held out the possibility that insider trading prohibitions — at least under the classic theory — do not apply to mutual fund redemptions. The U.S. Court of Appeals for the Seventh...more

10/25/2013 - Chief Compliance Officers Compliance Fraud Insider Trading Mutual Funds Rule 10b-5 SEC Securities Exchange Act White Collar Crimes

Investment Management Legal + Regulatory Update -- October 2013

- Regulatory Updates: CFTC Adopts “Substituted Compliance” Approach for Registered Investment Companies that are Commodity Pools; SEC’s Final Rules on General Solicitation and Bad Actor Disqualification for Investment...more

10/24/2013 - Audits Bad Actors Broker-Dealer CFTC Commodity Pool Compliance Continuity of Enterprises Dodd-Frank Enforcement FINRA General Solicitation Investment Adviser JOBS Act PCAOB Private Funds Rule 506 Offerings SEC

Division of Investment Management Closes Loophole for Fund Advisers Providing Interim Services “At Cost”

The SEC’s Division of Investment Management has closed a potential loophole in the federal securities laws through which some fund advisers may have attempted to squeeze to avoid registration....more

10/18/2013 - Investment Adviser Investment Management Registration SEC Tax Loopholes

The SEC Will Focus on Fixing “Broken Windows” it Finds in the Securities Industry

In a speech presented to the second annual Securities Enforcement Forum on October 9, 2013, SEC Chair Mary Jo White described a broad expansion of the SEC’s enforcement program to reflect her desire “to see that the SEC’s...more

10/11/2013 - Enforcement Investors Mary Jo White SEC

SEC Sanctions Investment Adviser for Pushing Class A Shares When Investors Qualified to Buy Institutional Class Shares

The Securities and Exchange Commission sanctioned an investment adviser and its owner for failing to seek best execution and breaching their fiduciary duty in selecting mutual fund share classes for three advisory...more

10/3/2013 - Broker Commissions Broker-Dealer Fiduciary Duty Investment Adviser Investment Advisers Act of 1940 Mutual Funds Sanctions SEC

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