SEC Amends Pay-to-Play Rule

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On June 22, 2011, the Securities and Exchange Commission (“SEC”) released amendments to Rule 206(4)-5 (the “Rule”) under the Investment Advisers Act of 1940 (the "Advisers Act"), which places restrictions on political contributions by an investment advisor or its covered associates, and prohibits the engagement by an investment advisor of unregulated third party solicitors to solicit government entity clients on its behalf.

As initially adopted, investment advisors subject to the Rule included investment advisors registered with the SEC, as well as advisors operating under the exemption from registration provided by Section 203(b)(3) of the Adviser’s Act (the former “private adviser” exemption, which was repealed by the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”)). In order to harmonize the Rule with the Dodd-Frank Act, the SEC has extended the application of the Rule to include any advisor that is exempt from registration by reason of the exemptions provided by (i) Section 203(b)(3) of the Advisers Act, as amended by the Dodd-Frank Act (the “foreign private adviser” exemption for non-U.S. managers with limited U.S. activities), (ii) Section 203(l) of the Advisers Act (the “venture capital fund adviser” exemption for managers whose only clients are qualifying venture capital funds), or (iii) Section 203(m) of the Advisers Act (the “private fund adviser” exemption for managers whose sole clients are private funds, and who manage assets of less than $150 million in the aggregate).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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