Kelley A. Howes

Kelley A. Howes

Morrison & Foerster LLP

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SEC Sanctions Investment Adviser For Materially False Advertisements

The SEC recently instituted proceedings against a registered investment adviser and its founder, CEO and majority shareholder for allegedly making material misstatements and omissions regarding the amount of assets...more

9/14/2015 - CEOs Compliance Conflicts of Interest Enforcement Actions False Advertising Investment Adviser Investment Advisers Act of 1940 Material Misstatements Omissions Policies and Procedures Sanctions SEC

SEC Staff Provides Guidance to Clarify Application of Rule Requiring Reporting of Personal Securities Transactions by Investment...

In a June 2015 Guidance Update, the staff of the Division of Investment Management clarified how the code of ethics reporting rules apply to investment advisers. Current rules require certain advisory personnel who...more

7/2/2015 - Ethics Guidance Update Investment Adviser Investment Advisers Act of 1940 Material Nonpublic Information Reporting Requirements SEC

SEC Issues Cybersecurity Guidance for Registered Investment Advisers and Registered Funds

The SEC’s Division of Investment Management issued guidance highlighting the importance of cybersecurity and discussing measures that registered investment companies (“funds”) and registered investment advisers (“advisers”)...more

5/4/2015 - Cybersecurity Investment Adviser Investment Funds New Guidance SEC

Firm Sanctioned for Breach of Fiduciary Duty and Violation of the Compliance Rule

The SEC sanctioned a registered investment adviser for breaching its fiduciary duty by failing to disclose to its clients a conflict of interest created by a portfolio manager’s outside business activity and personal...more

4/23/2015 - Breach of Duty Chief Compliance Officers Conflicts of Interest Fiduciary Duty Investment Adviser Investment Funds SEC

Investment Management Legal + Regulatory Update - February 2015

In This Issue: - SEC Proposes Rule Requiring Hedging Disclosure - SEC Reports the Result of its Cybersecurity Sweep of Broker-Dealers and Investment Advisers - House Passes Bill to Ease Volcker Rule and Other...more

2/27/2015 - Background Checks Broker-Dealer CFTC Compliance Cybersecurity Data Protection Dodd-Frank Enforcement Enforcement Actions Equity Swaps FINRA Hedging Investment Adviser Investment Management OCIE SEC

OCIE Publishes Exam Priorities for 2015

The National Exam Program of the SEC’s Office of Compliance Inspections and Examinations (OCIE) published its examination priorities for 2015 this week. (Last week, FINRA published its priorities, discussed here.) Many of the...more

1/15/2015 - Industry Examinations Investment Adviser OCIE Retirement Plan SEC

Investment Management Legal + Regulatory Update -- September 2014

In This Issue: - Regulation: Long-Awaited Money Market Fund Rules Adopted - SEC Staff Offers Guidance Regarding Investment Advisers and Proxy Advisory Firms - SEC Staff Closes Loophole on BDC Asset...more

9/17/2014 - Banks CFTC Conflicts of Interest CPO Dodd-Frank Enforcement Actions FINRA Hedge Funds Investment Adviser Liquidity Fees Money Market Funds Municipal Advisers NAV Pay-To-Play Proxy Advisors Redemption Gates SEC Strategic Enforcement Plan Whistleblowers

Paying for Playing: SEC Brings First Pay-to-Play Action against an Investment Adviser

The SEC has brought the first action under the “pay-to-play” rule adopted under the Investment Advisers Act. Andrew Ceresney, director of the SEC Enforcement Division, served notice that the SEC “will hold investment advisers...more

7/2/2014 - Affiliates Broker-Dealer Enforcement Investment Adviser Investment Advisers Act of 1940 Pay-To-Play SEC

Something Old, Something New: SEC Brings Action for Prohibited Principal Transactions and Retaliation Against Whistleblower

Clearly signaling its intention to support whistleblowers who provide actionable evidence of wrong-doing, the SEC this week settled the first case brought under the authority granted by the Dodd-Frank Act enabling...more

6/18/2014 - Anti-Retaliation Provisions Dodd-Frank Enforcement Enforcement Actions Hedge Funds Investment Adviser Retaliation SEC Whistleblowers

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

Year-End CFTC Reporting Requirements for Fund Advisers

The National Futures Association (NFA) reminded fund advisers claiming an exemption from registering as a commodity pool operator (CPO) that they must confirm by March 3, 2014 that will continue to rely on the exemption....more

12/12/2013 - CFTC CPO Exemptions Investment Adviser NFA Reporting Requirements Year-End Planning

SEC Staff Elaborates on Venture Capital Adviser Exemption

The SEC’s Division of Investment Management provided advisers to venture capital funds with guidance on fund structures that do not jeopardize an adviser’s ability to rely on the exemption from registration provided by...more

12/5/2013 - Exemptions Investment Adviser Investment Advisers Act of 1940 Registration Reporting Requirements SEC Venture Capital

SEC’s Recent Actions Against Two Investment Advisers Raise Important Lessons for All Investment Advisers

Recently announced cases against two registered investment advisers and certain of their executives serve as timely reminders of where the SEC is focusing its attention. Although the SEC’s actions are based on alleged...more

12/3/2013 - Compliance Enforcement Actions Investment Adviser SEC

SEC Grants Rare Exemptive Relief from Pay-to-Play “Time-Out” Provision

In what may be a case of first impression, the SEC recently granted exemptive relief from Rule 206(4)-5(a)(1) of the Investment Advisers Act of 1940, the “time-out” provision of the pay-to-play rule. In general, Rule...more

11/22/2013 - Exemptive Relief Hedge Funds Investment Adviser Investment Advisers Act of 1940 Pay-To-Play SEC

Uniform Fiduciary Standard Still a Priority, But No Timeline Yet

Both the SEC and FINRA believe that the question of whether a uniform fiduciary standard should be imposed on broker-dealers and investment advisers needs to be resolved. The problem is, neither one seems to have a view...more

11/15/2013 - Broker-Dealer Fiduciary Duty FINRA Investment Adviser SEC

SEC Targets More Firms for Custody Rule Violations

On October 28, 2013, the SEC sanctioned three registered investment advisers for, among other things, violating Rule 206(4)-2 under the Advisers Act (the “Custody Rule”). These settled actions, the subject of a special SEC...more

10/31/2013 - Chief Compliance Officers Custody Rule Customer Funds Enforcement Actions Investment Adviser Penalties SEC

SEC Sanctions Three More Investment Advisers for Compliance Violations

The SEC’s Compliance Program Initiative bore more enforcement fruit. SEC today sanctioned three investment advisory firms for repeatedly ignoring compliance problems. The Initiative targets firms that fail to address...more

10/24/2013 - Compliance Investment Adviser Sanctions SEC

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

SEC Enforcement Division to CCOs: We Are in This Together!

Stephen Cohen, the SEC’s Associate Director of Enforcement, tied robust compliance programs to enforcement “credits”. In remarks to compliance and ethics professionals at the annual conference of the Society of...more

10/15/2013 - Chief Compliance Officers Compliance Ethics Foreign Investment Investment Adviser SEC Whistleblowers

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

SEC Staff: Private Stock Certificates May Not Be Subject to Custody Rule

In a recent IM Guidance Update, the SEC’s Division of Investment Management said that it would not object if registered investment advisers (RIAs) to certain private funds do not maintain “private stock certificates” with a...more

8/23/2013 - Custody Rule Investment Adviser SEC Stocks

Non-U.S. broker-dealers and investment advisers may have U.S. registration requirements when existing clients relocate to the...

The SEC recently reminded non-U.S. broker-dealers and advisers with clients that relocate to the United States that they may be required to register under the U.S. securities laws. On July 31, 2013, the SEC sanctioned a...more

8/7/2013 - Broker-Dealer EU Investment Adviser Investment Advisers Act of 1940 Registration SEC Securities Exchange Act

SEC Adviser Exams Find Widespread Violations of Custody Rule

The SEC’s Office of Compliance Inspections and Examinations reports finding widespread compliance deficiencies related to custody of securities. In its March 4, 2013 National Exam Program Risk Alert, OCIE said that...more

3/8/2013 - Audits Custody Rule Customer Funds Protection Investment Adviser Investors NEP SEC

One Step Closer to a Fiduciary Duty for Broker-Dealers?

More than two years after an SEC Staff study recommended adoption of a uniform fiduciary standard for broker-dealers and investment advisers, the SEC has taken its first significant step towards possible implementation of the...more

3/7/2013 - Broker-Dealer Dodd-Frank Fiduciary Duty Investment Adviser SEC

OCIE to Target Adviser Payments for Fund Distribution, Funds with “Alternative” Strategies and New Advisers

In an attempt to “increase transparency, strengthen compliance, and inform the public and the financial services industry about key risks,” the SEC’s Office of Compliance Inspections and Examinations (OCIE) published its 2013...more

2/25/2013 - Broker-Dealer Conflicts of Interest Corporate Governance Enterprise Risks Fund Distribution Investment Adviser NEP OCIE Revenue Sharing Risk Management SEC

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