News & Analysis as of

Investment Company Act of 1940

SEC Provides Relief For Global Investment Advisers To Comply With EU Markets In Financial Instruments Directive II

In three no-action letters, the SEC has provided some relief for investment advisers in complying with the European Union's overhaul of its securities regulations. Commonly referred to as MiFID II, which is set to take effect...more

U.S. House Bill Aims to Curtail SEC Staff’s Ability to Obtain Algorithmic Trading Source Code

On October 4, 2017, U.S. Representative Sean P. Duffy [R-WI-7] introduced U.S. House of Representatives Bill H.R.3948 entitled the “Protection of Source Code Act.” If enacted, the Bill would amend the Securities Act, the...more

Treasury Report Addresses Regulatory Approaches Affecting Investment Companies and Their Advisers

by Pepper Hamilton LLP on

As required by President Trump’s Executive Order 13772, the U.S. Department of the Treasury issued a report, “A Financial System That Creates Economic Opportunities, Asset Management and Insurance,” addressing the regulatory...more

SEC No Action Letter Regarding Investments in Credit Risk Transfer Securities

On October 16, the SEC Division of Investment Management granted no-action relief in response to a request by Orrick on behalf of Redwood Trust. The Redwood request and the SEC staff response impact the way in which...more

SEC No-Action Letter Regarding Investments in Credit Risk Transfer Securities

On October 16, the SEC Division of Investment Management granted no-action relief in response to a request by Orrick on behalf of Redwood Trust. The Redwood request and the SEC staff response impact the way in which...more

SEC Cautions on Use of Distributed Ledger/Blockchain Technology to Raise Capital

by Carlton Fields on

In July, the SEC issued a report addressing the applicability of U.S. federal securities laws to the offer and sale of securities by "virtual corporations or capital raising entities that use distributed ledger or blockchain...more

Treasury Issues Plan to Streamline Capital Markets Regulation

Pursuant to Executive Order 13772, the Treasury Department has issued a report that identifies laws, treaties, regulations, guidance, reporting and record keeping requirements, and other government policies that promote or...more

At the End of the Rainbow: A Custom Basket?

by K&L Gates LLP on

For several years now, the Securities and Exchange Commission (“SEC”) has placed strict limitations on the composition of exchange-traded fund (“ETF”) creation and redemption “baskets.” Creation and redemption baskets are,...more

Inside the Courts – An Update From Skadden Securities Litigators - September 2017/ Volume 9 / Issue 3

This quarter’s issue includes summaries and associated court opinions of selected cases principally decided between May 2017 and August 2017....more

California Court Applies “Tracing” Requirement to ETF Shareholders Who Sue under Section 11

A California state court held that shareholders of exchange-traded funds (ETFs) have standing to sue under Section 11 of the Securities Act of 1933 (“1933 Act”) for an alleged prospectus misstatement only if they can trace...more

SEC Issues Revised C&DIs Reflecting Updates for Prior Amendments to Rules 147 and 504, the Repeal of Rule 505 and Clean-up Changes

On September 20, 2017, the staff of the SEC’s Division of Corporation Finance issued revised compliance and disclosure interpretations (“C&DIs”) for purposes reflecting updates for prior amendments to Securities Act Rules 147...more

Investment Adviser Compliance with SEC’s Amended Form ADV

by Winstead PC on

Beginning October 1, 2017, investment advisers filing Form ADV with the Securities and Exchange Commission (the “SEC”) must file using the amended form adopted by the SEC on August 25, 2016 (the “Amended Form ADV”). According...more

Capital Formation Bills Advance in the Senate

Last week, the Senate passed three bipartisan bills that promote access to capital for small businesses and startups. The Senate bills, the House corollaries of which originally passed on March 9, 2017, include the...more

Mutual Funds Should Consider Accelerating Filings in Advance of Increase in SEC Registration Fee Rate - August 2017

by Goodwin on

As a result of upcoming increases in securities registration fee rates applicable to mutual funds, funds with fiscal year ends of July or August and net sales should consider accelerating their annual Rule 24f-2 filings....more

ICI Requests Delay and Re-Examination of Liquidity Risk Management and Reporting Modernization Rules

by Dechert LLP on

In a letter to U.S. Securities and Exchange Commission (SEC) Chairman Jay Clayton, the Investment Company Institute (ICI) formally requested a delay and re-examination of certain elements of Rule 22e-4 under the Investment...more

SEC Issues Guidance on Initial Coin Offerings and Digital Assets

by Holland & Knight LLP on

The U.S. Securities and Exchange Commission (SEC) on July 25, 2017, issued a "Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: The DAO," weighing in on what are known as Initial Coin...more

Choice 2.0 and Its Impact on Business Development Companies

In April 2017, the full text of an updated version of the CHOICE Act (CHOICE 2.0) was released followed by a hearing on its contents. On June 8, 2017, the House Financial Services Committee released the draft of CHOICE 2.0, a...more

More Fund Companies Sanctioned for Misusing Fund Assets for Distribution

by Carlton Fields on

The SEC recently settled enforcement actions against William Blair and two Calvert companies for using mutual fund assets to pay distribution-related expenses in violation of Investment Company Act Rule 12b-1 and for certain...more

Eighth Circuit Says No Standing for Fund of Funds’ Shareholders Under Section 36(b)

On July 24, 2017, the U.S. Court of Appeals for the Eighth Circuit affirmed a district court ruling that a shareholder of a fund of funds lacks standing under Section 36(b) of the Investment Company Act of 1940, as amended...more

Blockchain and Digital Token Update: SEC Releases Investigative Report and Investor Bulletin

by Perkins Coie on

On July 25, 2017, the Securities and Exchange Commission (“SEC”) released groundbreaking materials relating to blockchain tokens. These materials provide significant and welcome insight to the SEC’s and its staff’s thinking...more

Investment Companies And Intrastate Offerings

by Allen Matkins on

SEC Rel. No. 33-4434, at 4 (Dec. 6, 1961) [26 FR 11896 (Dec. 13, 1961)Recently, my eye caught the following statement in the SEC’s Intrastate Offering Exemptions: A Small Entity Compliance Guide for Issuers...more

ETF Operational and Regulatory Environment Drives ETF Overisght Issues

by K&L Gates LLP on

Exchange-traded funds share many governance oversight characteristics with traditional mutual funds. While some ETFs have been structured as unit investment trusts that lack a board structure, most ETFs are classi¬ ed as...more

Fund Liquidity Risk Management Task Force

by Dechert LLP on

Implementing the U.S. Securities and Exchange Commission’s (SEC) fund liquidity risk management rules presents distinct challenges for open-end mutual funds and exchange-traded funds (ETFs), and compliance with the rules will...more

Real Estate Fund Advisers And Penumbra Registration

by Allen Matkins on

Last August, the Securities and Exchange Commission adopted amendments to Form ADV, the form used by investment advisers to register with the SEC and with the states. Included in these amendments were changes to allow...more

SEC Staff Relaxes Limitations under 1940 Act to Permit Certain Global “Master-Feeder” Arrangements, Although Obstacles Remain

by Dechert LLP on

The Staff of the U.S. Securities and Exchange Commission (SEC) on March 8, 2017 issued a no-action letter (Staff Letter) in response to a request from Dechert LLP for assurance under Section 12(d)(1) of the Investment Company...more

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