The Capital Commitment

Proskauer on Private Fund Litigation

SEC Enforcement’s 2020 Annual Report Reflects Shifting Priorities for Fund Managers: Four Key Takeaways

On Monday the SEC announced its enforcement results for FY 2020, accompanied by a report from the Director of its Division of Enforcement. This report confirms what we have seen over the past year for private fund managers: although OCIE has been more active on adviser examinations, we’ve seen a bit less enforcement activity. Yet in spite of the headwinds posed by the global pandemic, the Commission brought 715 enforcement actions in FY 2020, representing only a 17% decrease from FY 2019. It also obtained record-breaking monetary remedies with total penalties and disgorgement reaching $4.68 billion, an 8% increase from 2019. Continue Reading

SEC Announces 2020 National Compliance Outreach Seminar for Investment Companies and Investment Advisers

On October 7th, 2020, the Securities and Exchange Commission (SEC) announced the rescheduled date of its 2020 national compliance outreach seminar for investment companies and investment advisers.  This program is intended to help Chief Compliance Officers and other senior personnel at investment companies and investment advisory firms enhance their compliance programs.  The SEC’s Office of Compliance Inspections and Examinations (OCIE), Division of Investment Management (IM), and the Asset Management Unit (AMU) of the Division of Enforcement jointly sponsor the compliance outreach program.  The national seminar will be held virtually on the afternoon of Thursday, November 19th, 2020 via a live webcast from the SEC’s Washington, D.C., headquarters from noon until 4:50 p.m. EST. Continue Reading

Asserting Reliance on Compliance Consultants as a Defense: Admissibility and Effectiveness

Asset managers commonly engage regulatory compliance consultants to aid them in addressing regulatory requirements and implementing compliance programs. The work of those compliance professionals can be drawn into SEC enforcement actions in various contexts.  See, e.g., ZPR Investment Mgmt. Inc. v. SEC (compliance consultant resigned when advice not followed and testified in proceeding). One such context is when a fund manager asserts reliance on advice of the compliance consultant as a defense to fraud charges. Earlier this year, a district court opinion addressed that very issue. Although the opinion received little attention, it could have major implications if its analysis is broadly adopted. Continue Reading

European ESG Disclosure Requirements for Asset Managers

New rules in Europe concerning sustainability-related disclosures in the financial sector will come into force from March 2021. Our UK regulatory specialists summarize the key aspects of the new ESG rules which will impact a wide range of financial services participants, including non-EU (i.e. U.S. fund managers) that market funds in the EEA.

Read the full client alert here.

A Mix of Clarity and Confusion: Crypto Asset Law and Regulation in the UK

Just as U.S. regulators are wrestling with the question of how to regulate cryptocurrencies and digital assets, as reported here, the same questions are being asked in the UK. Some have been answered with refreshing clarity; some remain much more opaque.

As with any new technology or asset, there are different spheres of legal and regulatory influence to consider. At the most basic, what is it? (a.k.a. Can I steal it? And can I recover it?). The next level is typically regulatory – Who regulates it? How it is regulated? How are the public and markets protected?

How any jurisdiction answers these questions will have a material impact on the way private firms and others within the asset management industry deal with, and consider potential investments in, crypto assets. Continue Reading

SEC Expands the “Accredited Investor” and “QIB” Definitions and the Permitted Scope of “Testing the Waters”

The Securities and Exchange Commission (SEC) recently approved amendments to the definition of an accredited investor found in Rule 501(a) of the Securities Act of 1933 that will facilitate the ability of funds and other issuers to raise capital through private placements. Several commenters on the SEC’s proposed rule cautioned that a rise in civil litigation and regulatory actions would likely result from what would be generally perceived as a broadening of the accredited investor standard. Noting these concerns, the SEC’s adopting release cited a recently completed analysis by the agency’s staff of publicly available information on SEC litigation against Regulation D issuers which found that there were relatively few SEC civil court cases involving private placements over the 2009-2019 period compared to the total number of private placement filers. Time will reveal which of these arguments will prove to be correct.

Read the full client alert for a full discussion of these new revisions to the accredited investor standard and how they will affect private fund sponsors going forward.

FinCEN Explains What Guides Its Enforcement Decisions

On August 18, 2020, the Financial Crimes Enforcement Network (FinCEN), which is the primary regulator and administrator of the Bank Secrecy Act (BSA), issued a statement on enforcement of the BSA. The requirements of the BSA typically apply to financial institutions, but in certain circumstances the Act applies to nonfinancial businesses and individuals. Continue Reading

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