The New Change in ERISA’s “Fiduciary” Definition and its Effect on Private Fund Managers

Lauren Mack Compliance, Investment Advisers

Broadened Scope of ERISA Fiduciary Rules After several years of debate and revision, a Department of Labor (DOL) regulation, revising the definition of a “fiduciary” as it applied to investment managers, became applicable on June 9, 2017.  The new regulation expands the definition of “fiduciary” under the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code of 1986, as amended, to …

Silicon Valley VC Seeks to Crowdfund 100mm with JOBS Act

Simon Riveles Uncategorized

500 Startups, a Silicon Valley venture capital fund known for its startup incubator, said on Thursday it would generally solicit investments from the public for its third fund. Prior to the JOBS Act going into effect last year, 500’s attempt to generally solicit the public would have drawn the ire of the Securities & Exchange Commission.  Now, the Act’s general solicitation provision allows private funds—500 …

California Private Funds Managing Public Retirement Plans Face New Disclosures

Ben Levkov Uncategorized

California Private Funds Managing Public Retirement Plans Face New Disclosures Reporting and disclosure requirements for managers of “alternative investment vehicles” (an “AIV”) in California just became more complex with Governor Jerry Brown’s signing of a new amendment to California law, specifically aimed at transparency for fees and expenses associated with investment by State and Local pension and retirement plans.  The new provision, AB 2833, provides …

Newly Created “Capital Acquisition Broker” Rule Reduces Regulatory Burdens on Some Broker-Dealers

Lauren Mack Broker Dealer Registration, Compliance, FINRA, SEC

By Greg Caramenico and Lauren Mack On August 18th, the Securities and Exchange Commission (“SEC”) approved a Financial Industry Regulatory Authority Inc. (“FINRA”) rule that establishes less burdensome regulations for “Capital Acquisition Brokers” (“CABs”), which are a subclass of broker-dealers that engage only in limited activities. CABs can elect to be governed by the new rules by converting their current FINRA membership or by submitting a new …

Federal Courts Now Available for Trade Secret Misappropriation Claims

Simon Riveles Uncategorized

By Lauren Mack On May 11, 2016, President Obama publicly signed into law the Defend Trade Secrets Act (the “DTSA”), a long anticipated piece of legislation that creates a federal cause of action for trade secret misappropriation claims. Unlike claims of copyright, trademark, and patent infringement, trade secret misappropriation claims could not be brought by plaintiffs in federal court until now. What Are Trade Secrets? …

Debate Over Accredited Investor Definition Gaining Momentum

Simon Riveles Accredited Investor, Private Placement, SEC

Discussions surrounding the accredited investor definition have crescendoed of late, demonstrating a sharp divide in opinion among regulators. On one side lies the North American Securities Administrators Association (“NASAA”), the lobbying group that represents the state securities administrators. The NASAA published a comment letter on the definition on May 25, 2016, evidencing a highly conservative approach.[1] The group relies on investor protection concerns in calling …

SEC Issues Notice of Intent to Raise Net Worth Threshold for Qualified Clients

Simon Riveles Investment Advisers, Qualified Client

By William Kelly and Simon Riveles On May 24, 2016, the Securities and Exchange Commission (“SEC”) published a notice of its intent to issue an order increasing the net worth threshold for “qualified clients,” as defined in Rule 205-3 under the Investment Advisers Act of 1940, as amended (the “Advisers Act”). The Advisers Act generally prohibits SEC-registered investment advisers from charging any client a performance-based …

Which Regulation D Exemption is Suitable for Your Venture?

Simon Riveles Capital Raising, Reg D Rule 506

By Lauren Mack Companies seeking to raise capital – whether through selling equity, convertible notes, or any other security – in the United States must navigate a complex landscape of securities laws and regulations. They are subject not only to federal regulations, but also the laws of each state in which an investor (or soon-to-be investor) resides. The general rule under federal law is that …

SEC Staff Issues Report and Recommendations in Connection with Changes to the Accredited Investor Standard

Simon Riveles Accredited Investor, Dodd-Frank, SEC

By William Kelly and Simon Riveles On December 18, the SEC staff issued a report summarizing its review of the accredited investor definition. The report offers historical and current analyses of the definition, evaluates relevant comments on and suggested modifications to the definition, and considers alternative approaches under federal and state securities laws for identifying financially sophisticated investors. The report concludes with SEC staff recommendations …

CFTC Approves NFA Cybersecurity Interpretive Notice

Simon Riveles CFTC, Compliance, CPO, CTA, Cyber-security, Futures

By William Kelly Acknowledging the rapid evolution of information technology and correspondent threats, on August 20, 2015 the National Futures Association (“NFA”) issued an Interpretive Notice addressing cybersecurity concerns. The Interpretive Notice established general requirements relating to the information systems security programs (“ISSPs”) of futures commission merchants, commodity trading advisors, commodity pool operators, introducing brokers, retail foreign exchange dealers, swap dealers, and major swap participants …

Proposed IRS Regulations Target Management Fee Waivers in Exchange for Partnership Interests

Simon Riveles IRS

By Lauren Mack On July 22, 2015, the IRS issued a notice of proposed rulemaking regarding the classification of management fee waivers in exchange for partnership interests as disguised payment for services. Under the proposed regulations, allocations of income to partners that provide services to the partnership that lack “significant entrepreneurial risk” will be recharacterized by the IRS as payments for services. Background In 1984, …

FinCEN Proposes Long-Expected AML Rule for Investment Advisers

Simon Riveles Anti-Money Laundering, FINCEN, Investment Advisers

By William Kelly On August 25th, the Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) proposed a new rule applicable to investment advisers. At its core, the proposal seeks to extend anti-money laundering (“AML”) obligations imposed under the Bank Secrecy Act (“BSA”) to registered investment advisers. This proposal comes as little surprise, as the Treasury Department has long contemplated the extension of AML regulations to investments …

SEC Issues New Guidance on General Solicitation and Advertising in Regulation D Offerings

Simon Riveles Capital Raising, Compliance, Jobs Act, Reg D Rule 506

By Lauren Mack On August 6, 2015, the SEC’s Division of Corporation Finance (“DCF”) updated its Compliance and Disclosure Interpretations (“CDI”) with eleven new CDI on general solicitation and advertising in Regulation D offerings. That same day, the DCF also issued a no-action letter finding that an online venture capital firm’s procedures for creating online pre-existing substantial relationships did not constitute general solicitation and advertising …

AIFMD and Potential Extension of the EU Passport to the U.S

Simon Riveles Uncategorized

By Lauren Mack and Simon Riveles The Alternative Investment Fund Managers Directive (“AIFMD”) governs Alternative Investment Fund Managers (“AIFMs”) and Alternative Investment Funds (“AIFs”) in the European Union (“EU”) and seeks to harmonize the applicable regulations throughout the member states of the EU. Among its regulations are two different paths that AIFMs planning to market to EU investors may take: (a) minimum requirements for the …

Real Estate Fund Managers: Is Investment Adviser Registration Required?

Simon Riveles Uncategorized

By William Kelly Firms and individuals required to register as investment advisers and associated persons face a throng of regulatory requirements and restrictions. Under the Investment Advisers Act of 1940 (“Advisers Act”), investment advisers with assets under management (“AUM”) of $100 or more generally must register with the SEC. Registered investment advisers must maintain extensive records and are subject to ongoing SEC examination and reporting …

SEC Unanimously Approves Regulation A+ Rules

Simon Riveles Capital Raising, Regulation A+, SEC

On Wednesday March 25th, 2015, the Securities & Exchange Commission (SEC) unanimously adopted amendments to Regulation A. Due to its low dollar threshold and failure to preempt state blue sky laws, Regulation A has heretofore been a little utilized exemption from registration for certain smaller offerings by private companies. The amendments, mandated by Title IV of the JOBS Act, and commonly known as Regulation A+, …

Simon Riveles, Chairman of the HFA’s Regulatory and and Government Advisory Board, Comments on Impact of Raising Accredited Investor Net Worth Requirements by the SEC

Simon Riveles Accredited Investor, SEC

On October 7, 2014, The Hedge Fund Association (“HFA”), an international not-for-profit organization representing the interests of investors, hedge funds and service providers, has submitted a comment letter, which can be found at HFA-SEC-Comment-Letter, to the U.S. Securities and Exchange Commission’s (SEC) as the regulatory agency considers proposed changes to the definition of an “accredited investor” under Rule 501 of Regulation D. On behalf of the …

CFTC Issues Guidance to Exempt CPOs Seeking to Generally Solicit

Simon Riveles Uncategorized

By Matt McCullough and Eugene Schlesinger On September 9, the Commodity Futures Trading Commission (CFTC) issued CFTC Letter No. 14-116 in response to requests that it harmonize its regulations with Rule 506(c)’s general solicitation provision. Rule 506(c) lifted the prohibition on issuers, including hedge fund managers, from engaging in “general solicitation.” General solicitation includes advertisements in periodicals, on television, radio or public websites, and seminars …

SEC Considers Change to Accredited Investor Standard

Simon Riveles SEC

Under the Dodd-Frank Act of 2010, the Securities and Exchange Commission (the “SEC”) is required to examine the definition of “accredited investor” every four years to determine if it should be modified.  Under the current standard, a natural person qualifies as an “accredited investor” for purposes of participating in a Rule 506 offering if he or she has earned at least $200,000 in annual income in each …

SEC issues Investor Alert: 10 Red Flags that a Private Placement May be Fraudulent or a Scam

Simon Riveles SEC

August 2014 Earlier this month, the Securities & Exchange Commission’s (the “SEC” or “Commission”) Office of Investor Education and Advocacy released a list of ten red flags investor’s should be wary of when evaluating a private offering. Under the securities law, sales of securities in a fund, a company or other issuer that have not been registered with the SEC are not subject to the …