In a wave of SEC rulemaking this past year, representing a “new world order” event akin to Dodd-Frank, the SEC has provided itself with a fresh set of tools to increase regulatory and enforcement scrutiny on private funds. Among other things, certain of the rules could result in fundamental changes to market practices and greater disclosure to LPs. While ongoing litigation will determine the fates of the Private Fund Adviser Rules, the Short Sale Disclosure Rule, and the Securities Lending Rule, and while other rules are awaiting final adoption, the SEC concerns underlying the rulemaking will continue regardless.
Julia M. Ansanelli
Julia Ansanelli is an associate in the Litigation Department and a member of the firm’s White Collar Defense & Investigations, Securities Litigation, and Asset Management Litigation Practice Groups. She has worked extensively defending clients facing criminal and regulatory investigations by the Securities and Exchange Commission, the U.S. Department of Justice, and the Federal Trade Commission. She is also a member of the litigation team that represents the Financial Oversight and Management Board in the Commonwealth of Puerto Rico’s bankruptcy proceedings. Julia has experience with various stages of complex commercial litigation, both in federal and state courts.
Julia maintains an active pro bono practice, with an emphasis on immigration law, and in particular, special immigrant juvenile status. In recognition of her pro bono efforts, Julia received a Proskauer Golden Gavel award in 2018 in connection with an amicus brief she helped prepare in support of a class of thousands of immigrant youth that had been denied special immigrant juvenile status in New York based on a then-new USCIS policy. The class of immigrant youth were ultimately successful when the Southern District of New York judge agreed that the USCIS policy violated federal immigration law.
During law school, she served as Case Note Editor of the Touro Law Review, in which she published two case notes of her own, and Vice President of Touro's Latin American Law School Association. Julia also interned for the Honorable Magistrate Kathleen Tomlinson in the Eastern District of New York.
Julia is a frequent contributor to Proskauer’s Minding Your Business and Capital Commitment blogs. She has also been recognized as a Super Lawyers “Rising Star” from 2020-2023.
Top Ten Regulatory and Litigation Risks for Private Funds in 2024
To understand the litigation and regulatory risks that are coming in 2024 for private capital, it is helpful to look back briefly on recent events. Arguably, the single most important event over the last 18 months was the rapid increase in interest rates by the central banks in the United States, England, and Europe. From March 2022 to August 2023, the Federal Reserve increased interest rates at the fastest clip in more than 40 years, to break inflation that had reached the highest levels since the 1970s.
2023 SEC Enforcement Results – Takeaways for Fund Managers
On November 14, 2023, the SEC’s Division of Enforcement announced its Enforcement Results for Fiscal Year 2023. Below are some key takeaways for fund managers:
Complying with the New SEC Marketing Rule: Seven Months in and Still Adapting
On November 4, 2022, compliance with amended Rule 206(4)-1 (the “Marketing Rule”) became mandatory for all investment advisers registered with the Securities and Exchange Commission (the “SEC”).[1] Seven months since the compliance date, SEC-registered investment advisers continue to discover and adapt to challenges in applying the Marketing Rule. Newly formed advisers also face significant obstacles to marketing with a predecessor-firm track record. It has also impacted advisers’ interaction with placement agents and solicitors. And finally, the SEC has begun assessing advisers’ adherence to the rule through routine compliance examinations. All parties involved continue to adapt to the new environment.
The Trend Continues: Increased Regulatory Focus on Privacy & Cybersecurity for Private Funds
Recent enforcement actions highlight the increased regulatory scrutiny that private funds may face with respect to internal cybersecurity protocols and responses to cyber-crimes and cyber incidents under new and updated cybersecurity laws.
Regulators’ Increased Focus on GP-Led Secondaries and Continuation Funds
As IPOs and other traditional paths to liquidity for private assets have become more challenging, GP-led secondary transactions have emerged as a powerful and popular tool across closed-end private funds, leading to explosive growth over the last five years. And while macro factors influence their prevalence year over year, these transactions remain broadly popular across the various stakeholders in these transactions, facilitating different goals for different parties:
- Existing Investors (LPs): Near-term liquidity in a liquidity-constrained market, typically with an option to continue participation if desired
- New Investors (Buyers): Access to a mature portfolio with unrealized upside
- Fund Adviser (GP): Extended duration to capture future upside of well-performing assets, additional capital to support existing portfolio, and reset economics aligning with longer-term outlook
Energy Transition: A New Risk Climate for Investors
Go to any private equity event in the last 12 months, and “energy transition” will have been discussed, meaning the shift in energy production away from fossil‑based systems to low or zero carbon ones. As fund managers continue to raise funds focused on investments in this sector, we see no reason for this trend to change in 2023.
The ever-increasing web of ESG regulation is of course highly relevant for such funds and their investments, but the sector-relevant risks are much wider. There are four risks of which fund managers need to be aware.
Ripples Following the SPAC Wave: Litigation and Regulatory Risks
It’s a pattern we often see in boom-and-bust cycles—disputes rising in the period after a wave crests. SPAC deal volume hit an unprecedented high in 2021, but then slowed down in 2022 alongside IPOs. However, the fallout from the SPAC wave will continue to unfold this year, generating increased regulatory attention and a growing number of disputes.
Messaging Missteps: SEC’s Increasing Focus on Off-Channel Communications
The SEC’s Enforcement Division is conducting a sweep investigation of large investment advisers regarding their employees’ use of “off-channel” communications. The sweep, which has been widely reported in the press, focuses on text messages from personal phones, personal email, WhatsApp and other platforms not typically captured or monitored by advisers. The sweep is causing considerable industry concern, following the SEC’s announcement of settlements against a number of large broker-dealers for use of off-channel communications, that resulted in $1.235 billion of cumulative penalties.
SEC Overreach: Insurers Underwrite?
Implications of SEC attempt to curb indemnification for private fund managers
The SEC spent 2022 making multiple and sweeping proposals to amend rules under the Advisers Act, many of which have the ability to significantly re-shape market standards for private funds. Here, we focus on the SEC’s proposal to undo a common protection for private fund advisers – the ability to rely, as against the private fund or its investors, on exculpatory and indemnification provisions for a breach of fiduciary duty, willful misfeasance, recklessness, or simple negligence in providing services to the private fund. This prohibition would relate not just to liability under the Advisers Act, but to all causes of action.