John O'Brien

John O'Brien

Morgan Lewis

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SEC Examiners Focused on Fund Share Class Conflicts of Interest

OCIE recently published a Risk Alert announcing that it will examine the potential conflict of interest created by registered investment advisers being financially incentivized to recommend certain share classes to clients....more

7/25/2016 - 529 Plans Compensation Agreements Conflicts of Interest Disclosure Requirements Enforcement Actions Fiduciary Duty FINRA Investment Advisers Act of 1940 OCIE Registered Investment Advisors SEC Share Classes

Sub-Advisers Get Relief from Custody Rule’s Surprise Exam Requirement

Recent SEC staff no-action letter allows certain sub-advisers to avoid the burdensome surprise examination requirement under the Custody Rule. On April 25, the US Securities and Exchange Commission (SEC) staff provided...more

5/13/2016 - Custody Rule Investment Adviser No-Action Relief SEC

Understanding The SEC’s Proposal on Funds’ Use of Derivatives and Other Financial Transactions

On December 11, 2015, the US Securities and Exchange Commission (SEC) voted 3–1 in favor of proposing a new rule—Rule 18f-4 (Proposed Rule) under the Investment Company Act of 1940 (1940 Act). If adopted, the rule will have a...more

3/25/2016 - Derivatives Investment Advisers Act of 1940 Investment Companies Rule 18f-4 SEC

SEC Staff Publishes Guidance on Fund Disclosure of Current Market Conditions

The Guidance emphasizes the importance of reviewing market conditions and the related effect on fund investments on an ongoing basis and ensuring that fund disclosure is appropriately up-to-date....more

3/23/2016 - Disclosure Requirements Financial Markets Fund Managers Investment Funds Market Conditions SEC

SEC Staff Issues Guidance on Mutual Fund Distribution Arrangements

Recently issued SEC staff guidance reminds mutual fund directors of their obligations to evaluate fund payments to financial intermediaries and emphasizes investment advisers’ and other service providers’ obligation to...more

1/29/2016 - Board of Directors Guidance Update Intermediaries Investment Adviser Investment Company Act of 1940 Mutual Funds SEC

SEC Requests Public Comment on Transfer Agent Regulation Proposal and Concept Release

SEC proposal would modernize the regulation of the transfer agency industry, particularly with respect to mutual funds. Last month, the US Securities and Exchange Commission (SEC) issued an Advance Notice of Proposed...more

1/16/2016 - Advanced Notice of Proposed Rulemaking (ANPRM) Corporate Issuers Mutual Funds OCIE Public Comment Registration Requirement Reporting Requirements SEC Transfer Agents

SEC Proposes Requirements for Funds’ Use of Derivatives and Other Financial Transactions

If adopted, the proposed requirements would significantly alter funds’ ability to enter into derivatives and other financial transactions, present new operational challenges, expand reporting requirements, and impose new and...more

12/15/2015 - Board of Directors Derivatives Investment Companies Proposed Regulation Reporting Requirements SEC

NYSE Arca Proposes to Flag ETP Trades that Deviate Significantly from Prevailing Market Prices

NYSE Arca’s proposal would use a two-part test to identify aberrant prices in trades of exchange-traded products and then warn the market of such trades in an effort to deter further pricing dislocations....more

12/4/2015 - Comment Period Exchange-Traded Products Investment Companies Investor Protection NYSE Proposed Regulation

SEC Exam Staff Shares Observations on Outsourced Chief Compliance Officers

Firms that use third-party CCOs or that rely on financial intermediaries that have outsourced their compliance functions should consider taking a fresh look at their compliance structure in the wake of this guidance....more

11/20/2015 - Chief Compliance Officers Corporate Counsel OCIE Outsourcing Risk Alert SEC Young Lawyers

NYSE Arca Withdraws Active ETF Generic Listing Standards Proposal as SEC Focus on ETFs Continues

Withdrawal comes within days of SEC Chair White and Commissioner Aguilar issuing public statements regarding ETFs. On October 19, the US Securities and Exchange Commission (SEC) published a notice stating that NYSE Arca,...more

10/29/2015 - ETFs Exchange-Traded Products Investor Advisory Committee Liquidity Listing Standards NYSE Pricing Proposed Regulation Public Comment SEC Transparency

SEC Proposes Liquidity Risk Management Rules for Open-End Funds

In the second step of its five-part plan to enhance registered funds regulations, the SEC has proposed new requirements on portfolio liquidity, risk monitoring, and board oversight. At an open meeting held on September...more

9/28/2015 - Comment Period Disclosure Requirements ETFs Investment Company Act of 1940 Liquidity Risk Management Rule Mary Jo White Mutual Funds New Regulations Proposed Regulation Registered Funds Reporting Requirements SEC Share Redemption Shareholders Swing Pricing

BE-180 Deadline Approaching: Fund Managers, Private Funds, and Registered Investment Companies May Be Required to File

The November 1, 2015 deadline is approaching for US financial services providers—including many US fund managers, private funds, and registered investment companies—to file a BE-180 with the US Department of Commerce....more

9/18/2015 - BE-180 BEA Benchmarks Filing Deadlines Financial Institutions Fund Managers Investment Companies Private Funds Surveys Time Extensions U.S. Commerce Department

Update on Proposed Listing Standards for Active ETFs

The SEC needs more time to consider generic listing standards for active ETFs. On September 2, the US Securities and Exchange Commission (SEC) published a notice (Notice) designating a longer period of time to consider...more

9/10/2015 - ETFs Listing Standards NYSE Proposed Regulation SEC

“Pay to Play” Developments

Based on recent announcements from the SEC and its Staff, changes may be forthcoming for advisers’ use of third-party solicitors for government entity clients....more

7/29/2015

SEC Seeks Public Input on Exchange-Traded Product Trading Issues

Growth in the ETP industry has led the SEC to seek public comment on a variety of topics related to the listing and trading of ETP shares. On June 12, the US Securities and Exchange Commission (SEC) issued a release (the...more

7/2/2015 - Arbitrage Broker-Dealer Exchange-Traded Products Exemptive Relief Investment Adviser Investors Listing Standards Market Pricing No-Action Relief Public Comment SEC Securities Exchange Act

Update on Proposed Listing Standards for Active ETFs

The SEC is considering an amended proposal by NYSE Arca to adopt generic listing standards for actively managed ETFs. On June 5, the US Securities and Exchange Commission (SEC) issued an order (the Order) instituting...more

6/15/2015 - ETFs Listing Rules NYSE SEC Securities Exchange Act

SEC Proposes Rules Affecting Funds and Advisers

Proposals would impose new disclosure requirements designed to enhance the SEC’s ability to monitor the industry. On May 20, the US Securities and Exchange Commission (SEC) unanimously approved proposals intended to...more

5/26/2015 - Comment Period Investment Adviser Investment Funds Mary Jo White Proposed Regulation Recordkeeping Requirements Reporting Requirements SEC

SEC Considers Active ETF Listing Standards, Approves Paired Class ETP

Although the proposed listing standards could significantly reduce regulatory barriers, commissioner dissent in exchange-traded product order underscores regulatory concerns about novel products....more

3/20/2015 - ETFs Listing Standards Regulatory Reform SEC

SEC to Approve “Exchange-Traded Managed Funds”

The new product will have characteristics of both mutual funds and exchange-traded funds. On November 6, the U.S. Securities and Exchange Commission (SEC) issued a notice indicating that it intends to grant exemptive...more

11/13/2014 - Amended Regulation ETMFs Exemptive Relief Nasdaq SEC

The New Era of Money Market Fund Regulation

On July 23, 2014, the U.S. Securities and Exchange Commission (SEC) voted 3–2 to significantly amend the regulatory framework of money market mutual funds (MMFs), particularly Rule 2a-7 under the Investment Company Act of...more

10/2/2014 - Disclosure Requirements Floating NAV Liquidity Fees Money Market Funds Redemption Gates Regulatory Agenda Regulatory Standards Reporting Requirements SEC Stress Tests

SEC Approves General Solicitation in Private Offerings and Proposes Further Regulation D Amendments

On July 10, 2013, the U.S. Securities and Exchange Commission (SEC) issued a series of three releases — referred to in this White Paper as the General Solicitation Release, the Bad Actors Release, and the Proposing...more

7/25/2013 - Advertising Bad Actors Dodd-Frank General Solicitation JOBS Act Marketing Private Placements Regulation D Rule 144A SEC

SEC Warns About Exemptive Order Compliance

Division of Investment Management's guidance reminds firms to comply with conditions and representations in exemptive orders and notes that consequences for noncompliance may be "severe."...more

5/20/2013 - Compliance ETFs Exemptive Orders OCIE OIG SEC

SEC Settles Suit for Misleading Advisory Contract Approval Disclosure

Settlement with mutual fund directors and service providers serves as a reminder of responsibilities for disclosures relating to the approval of investment advisory contracts and provides insight into SEC enforcement...more

5/10/2013 - Advisory Contracts Disclosure Requirements Investment Adviser Investment Company Act of 1940 Mutual Funds SEC Settlement

FINRA Formalizes Position on Pre-Inception Index Performance Data

Interpretive letter outlines the conditions for the use of exchange-traded product marketing materials containing pre-inception index performance, including disclosure requirements, performance presentation standards, and a...more

4/26/2013 - Compliance Disclosure Requirements Exchange-Traded Products FINRA Institutional Investment

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