Kelley A. Howes

Kelley A. Howes

Morrison & Foerster LLP

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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

SEC’s Final Municipal Advisor Registration Rules Will Take Effect on July 1, 2014

The Securities and Exchange Commission’s (SEC) temporary stay on its final municipal advisor rules under Section 15B of the Securities Exchange Act of 1934 (the “Exchange Act”) expires July 1, 2014. Accordingly, municipal...more

6/27/2014 - Dodd-Frank Final Rules Form MA MSRB Municipal Advisers Registration SEC Securities Exchange Act

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

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

Money Market Reform Inches Forward

The staff of the SEC’s Division of Economic and Risk Analysis (DERA) made available its analyses of data and academic literature relevant to pending money market fund reform. DERA said that the analyses could assist the...more

3/26/2014 - Financial Regulatory Reform Money Market Funds SEC

NEP Announces Never-Before-Examined Initiative

The SEC’s Office of Compliance Inspections and Examinations (OCIE) announced this week that its National Exam Program (NEP) launched an initiative to “engage with” investment advisers that have never been examined by the SEC....more

2/24/2014 - Dodd-Frank Form ADV NEP OCIE SEC

SEC Staff Offers Roadmap for Alternative Investment Due Diligence Processes

The SEC believes that investment advisers, including pension consultants, are increasingly recommending that their clients invest a portion of their portfolios in private alternative investment funds. In light of that trend,...more

2/12/2014 - Compliance Due Diligence Investors OCIE Risk Management 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 Compliance Outreach Program Reinforces Familiar Themes

Last week, key members of the SEC’s staff reinforced their expectation that CCOs and other gatekeepers should help the SEC with its core mission of protecting investors, promoting fair, orderly and efficient markets and...more

2/5/2014 - Compliance SEC

SEC: Adviser Violated Advisers Act by Charging Performance Fees to Non-Qualified Clients

A recent SEC enforcement action illustrates the challenge of complying with changing regulations, particularly for newly registered advisers. The SEC found that the adviser violated the prohibition against charging...more

1/2/2014 - Compliance Dodd-Frank Fees Investment Advisers Act of 1940 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

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

Investment Advisory Committee Recommends Rulemaking on Uniform Fiduciary Standard

Last week, the SEC’s Investment Advisory Committee recommended that the SEC enact rules to impose a fiduciary duty on broker-dealers when they provide personalized investment advice to retail investors. The Committee’s draft...more

11/26/2013 - Broker-Dealer Dodd-Frank 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

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

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 Uniform Fiduciaries Act

SEC Won’t Object To Aggregation of Certain Client Investments in Private Funds

In a Guidance Update published this week, the SEC’s Division of Investment Management said that it would not object if related investment advisors registered jointly with the SEC and operating a single advisory business...more

11/7/2013 - Aggregation Rules Compliance Investment Advisers Act of 1940 Private Funds 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

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’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

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

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

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