Investment Fund Law Blog


Updates and Insights on Legal Issues Facing Fund Managers and Investors

SEC Risk Alert: Outsourced Chief Compliance Officers

Posted in Advisory, Hedge Funds, Investment Advisers, Private Equity, Private Funds

The Securities and Exchange Commission’s (“SEC”) Office of Compliance Inspections and Examinations (“OCIE”) released a “Risk Alert” on November 9, 2015, the purpose of which is to raise awareness of compliance issues observed in connection with the examination of registered investment advisers and investment companies that outsource their Chief Compliance Officers (“CCO”) to unaffiliated third parties.

We encourage our registered investment adviser clients, including hedge fund and private equity managers, that have outsourced their firm’s CCO function to compliance service providers or other third parties to carefully review the following SEC risk alert summary and review their outsourcing arrangement in view of the SEC’s observations.

Outsourced CCO Initiative

The OCIE staff (the “staff”) conducted 20 examinations as part of an Outsourced CCO Initiative to evaluate the effectiveness of compliance programs and outsourced CCOs by considering a number of factors such as:

  • Whether the CCOs appropriately identified, mitigated, and managed compliance risk;
  • Whether the compliance program was designed to reasonably prevent, detect and remedy violations of federal securities laws;
  • Whether there was open communication between those with compliance responsibilities and service providers;
  • Whether the CCOs have authority to influence compliance policies and procedures of the registrants and had sufficient resources to carry out their responsibilities; and
  • Whether compliance was an important part of the registrants’ culture.

Observations of successfully outsourced CCOs

The staff observed compliance strength in outsourced CCOs with the following characteristics:

  • Regular and often in-person communication between the CCOs and registrants;
  • Strong relationships between the CCOs and registrants;
  • Registrants’ support of the CCOs;
  • CCOs having independent access to documents and information; and
  • CCOs having knowledge of the registrants’ business and regulatory requirements.

Observations of unsuccessfully outsourced CCOs

The staff observed compliance weakness in outsourced CCOs with the following characteristics:

  • CCOs providing compliance manuals based on templates not tailored to the registrants’ businesses and containing inappropriate policies and procedures;
  • CCOs visiting registrants’ offices infrequently, conducting limited annual reviews of documents or insufficient evaluation and assessment of training pertaining to compliance matters;
  • CCOs not performing critical control testing procedures and lacking documentation to evidence testing of control procedures;
  • Critical areas of the registrants’ operations were not identified by CCOs resulting in certain compliance policies and procedures not being adopted, including those necessary to address conflicts of interest;
  • CCOs using generic checklists to gather pertinent information regarding the registrants;
  • Registrants providing incorrect or inconsistent information to the CCOs about firm business practices;
  • Lack of follow-up by CCOs with registrants to resolve discrepancies; and
  • CCOs having limited authority within the registrants’ organizations to improve adherence to compliance policies and procedures and implement necessary changes in disclosure practices, such as fees, expenses and other areas of client interest.


The staff reminds registrants that CCOs, whether direct employees, contractors or consultants, must have sufficient knowledge and authority to fulfill their role. In addition, each registrant is responsible for the adoption and implementation of its compliance program and accountable for any deficiencies.

Finally, the staff emphasizes that all registrants, and especially those that use outsourced CCOs, may find the issues identified in the Risk Alert useful to evaluate whether (i) their business and compliance risks have been appropriately identified (ii) policies and procedures are tailored to the specific risks their businesses encounter and (iii) their respective CCOs have the necessary power to effectively perform their responsibilities. Registrants and their funds are advised to review their business practices regularly to determine whether the practices are consistent with compliance obligations under Rule 206(4)-7 under the Investment Advisers Act of 1940 and Rule 38a-1 under the Investment Company Act of 1940.

Please contact the Investment Funds and Investment Management Group if you would like to discuss the SEC alert or need help reviewing your outsourcing arrangement.

FinTech Round Table

Posted in Events

Yesterday, Pillsbury hosted the first in a series of risk management and regulatory compliance round tables for FinTech companies.  The meetings will explore technology-related risk and compliance issues in the financial services space, such as in mobile banking, online brokerage, automated (“robo”) investment advisers, P2P lending, to name a few.  Pillsbury partnered with  the Professional Risk Managers’ International Association (a non-profit professional association), Oyster Consulting (a firm providing comprehensive consulting and compliance services for financial firms) and La Meer Inc. (a risk management solutions company).

The Dos and Don’ts of an SEC Examination

Posted in Advisory, Client Alert, Hedge Funds, Investment Advisers, Private Equity, Private Funds

The regulatory environment for SEC-registered advisers has become more complex as the result of a more aggressive and interconnected Securities and Exchange Commission (SEC). The connecting hub within the SEC is the Office of Compliance Inspection and Examination (OCIE), which serves as the “eyes and ears” of the SEC. The OCIE often is the first line of contact between an investment adviser and a potential referral to the SEC Enforcement Division’s Asset Management Unit (AMU), which is devoted exclusively to investigations involving investment advisers, investment companies, hedge funds and private equity funds.

The OCIE’s three main areas of focus for their 2015 exam priorities are (i) protecting retail investors, (ii) issues related to market-wide risks, and (iii) data analysis as a tool to identify registrants engaging in illegal activity.

Overlapping with the OCIE’s frontline examination role is the Compliance Program Initiative, which began in 2013 by sanctioning three investment advisers for ignoring problems within their compliance programs. The Compliance Program Initiative is designed to address repeated compliance failures that may lead to bigger problems. As such, any issues raised in a deficiency letter resulting from an examination are ripe for follow-up as the starting point of a subsequent examination. In the current regulatory environment—where violations of compliance policies and procedures can serve as the basis of enforcement actions—investment advisers and their compliance professionals need to pay close attention to the implementation, follow-through and updating of every aspect of their compliance program.


Read this article and additional publications at  You can also download a copy of the Client Alert.

Senate Passes Cybersecurity Information Sharing Bill Long Sought by Industry

Posted in Client Alert

Investment managers, particularly high priority cybercrime targets, such as hedge funds and quantitative strategy managers, are encouraged to consider the government-industry information sharing option and liability protection afforded by the new legislation.  For more information, please contact the Investment Fund and Investment Management group.

On Tuesday, October 27, the U.S. Senate approved legislation, strongly supported by business groups, that would facilitate information sharing between government and industry and provide liability protection to companies that participate. The Cybersecurity Information Sharing Act of 2015 (CISA) passed the Senate by a bipartisan vote of 74-21, setting the stage for a House-Senate conference committee that will work to resolve differences between CISA and similar legislation passed by the House in April and to prepare a final bill to be considered by both chambers of Congress for potential enactment into law.


Read this article and additional publications at  You can also download a copy of the Client Alert.

SEC Finally Adopts “Regulation Crowdfunding”

Posted in Broker-Dealers, Client Alert, Hedge Funds, Investment Advisers, Private Equity, Private Funds

The SEC’s final crowdfunding rules, which are largely consistent with the proposed rules, provide broader access to capital for startups and small businesses, though concerns over cumbersome disclosure and regulatory requirements persist.

On October 30, 2015, the Securities and Exchange Commission (SEC) voted to adopt final rules implementing Title III of the Jumpstart Our Business Startups Act (JOBS Act), known as “crowdfunding”. The final rules, to be codified as “Regulation Crowdfunding” in furtherance of Section 4(a)(6) of the Securities Act of 1933, are expected to become effective in May 2016. A copy of the final rules can be found here.

Regulation Crowdfunding will allow smaller, non-public U.S. companies to raise up to $1 million in any 12-month period by selling securities over the Internet (including through apps and other technologies) to individual investors who are not required to meet any sophistication or wealth standards, but will be subject to relatively small investment limits.


Read this article and additional publications at  You can also download a copy of the Client Alert.

More Investment Advisers on the Hook for Failure to Disclose Conflicts of Interest

Posted in Investment Advisers, Private Equity, Private Funds

On November 3, 2015, the Securities and Exchange Commission (SEC) announced that Fenway Partners, LLC (Fenway Partners), a private equity fund adviser, agreed to pay more than $10 million to settle charges that it failed to disclose conflicts of interest to a fund client and omitted material facts to investors.

SEC Findings

Fenway Partner’s current and former principals as well as the chief financial officer did not:

  • Disclose to Fenway Capital Partners Fund III, L.P. (the Fund) or its investors that Fenway Partners caused certain portfolio companies of the Fund to cancel management services agreements—subject to management fee offsets—between Fenway Partners and portfolio companies.
  • Disclose to the Fund or its investors the creation of the affiliated entity Fenway Consulting Partners, LLC (Fenway Consulting).
  • Disclose to the Fund or its investors that Fenway Consulting received $5.74 million for providing services to portfolio companies similar to those previously provided by Fenway Partners and often using the same employees—without a management fee offset against the fees paid to Fenway Partners.
  • Disclose in its capital call notice to investors in connection with a portfolio company investment that $1 million of the $4 million total capital call would be used to pay Fenway Consulting fees.
  • Disclose to the advisory board or the investors the conflict of interest concerning cash incentive plan payments to current and former Fenway Partner principals.
  • Disclose, as related party transactions, in the financial statements provided to investors, those payments received by Fenway Consulting for its services to portfolio companies.

The press release is available HERE.

A full copy of the SEC order is available HERE.

Reminder: 2016 IARD Account Renewal Obligations For Investment Advisers

Posted in Client Alert, Investment Advisers

This is a reminder that the 2016 IARD account renewal obligation for investment advisers (including exempt reporting advisers) starts this November. An investment adviser must ensure that its IARD account is adequately funded to cover payment of all applicable registration renewal fees and notice filing fees.

Key Dates in the Renewal Process:

November 16, 2015 – Preliminary Renewal Statements which list advisers’ renewal fee amount are available for printing through the IARD system.

December 18, 2015 – Deadline for full payment of Preliminary Renewal Statements. In order for the payment to be posted to its IARD Renewal account by the December 18 deadline, an investment adviser should submit its preliminary renewal fee to FINRA through the IARD system by December 14, 2015.

December 29, 2015 – January 2, 2016 – IARD system shut down. The system is generally unavailable during this period.

January 4, 2016 – Final Renewal Statements are available for printing. Any additional fees that were not included in the Preliminary Renewal Statements will show in the Final Renewal Statements.

January 15, 2016 – Deadline for full payment of Final Renewal Statements.

For more information about the 2016 IARD Account Renewal Program including information on IARD’s Renewal Payment Options and Addresses, please visit

Please contact us if you have questions.

SEC Adopts Final Crowfunding Regulation

Posted in Advisory, Broker-Dealers, Hedge Funds, Investment Advisers, Private Equity, Private Funds

On October 30, 2015, the Securities and Exchange Commission (SEC) adopted Regulation Crowdfunding. The final rule permits companies to offer and sell securities through crowdfunding. The “Regulation Crowdfunding Exemption” is created under Section 4(a)(6), Title III of the JOBS Act.

The key features of the final rules

  1. Permit individuals to purchase securities in crowdfunding offerings subject to certain limits:
    • A company is permitted to raise a maximum aggregate amount of $1 million through crowdfunding offerings in a 12-month period.
    • Individuals are permitted, over a 12-month period, to invest in the aggregate across all crowdfunding offerings up to:
      • The greater of $2,000 or 5% of the lesser of their annual income or net worth, if either their annual income or net worth is less than $100,000.
      • 10% of the lesser of their annual income or net worth, if both their annual income and net worth are equal to or more than $100,000.
    • The aggregate amount of securities sold to an investor through all crowdfunding offerings may not exceed $100,000.
  1. Require companies to disclose certain information about their business and securities offering and to file an annual report with the SEC and provide it to investors.
  2. Create regulatory framework for the broker-dealers and funding portals that facilitate the crowdfunding transactions. A funding portal is required to register with the SEC and become a FINRA member. A company relying on the Regulation Crowdfunding Exemption is required to conduct its offering exclusively through one intermediary platform at a time.

In addition, the SEC is proposing to amend the existing Securities Act Rule 147 and Rule 504. Rule 147 would be amended to, among other things, permit companies to raise money from investors within their state (intrastate offering) without registering the offers and sales with the SEC. Rule 504 would be amended to increase the aggregate amount of securities that may be offered and sold in any 12-month period from $1 million to $5 million. Bad actor disqualification would also apply in Rule 504 offerings.

A full copy of the final rules is available HERE.

AIFMD Development – No “Passport” in Sight for the US

Posted in Advisory, Investment Advisers, Private Funds

In the summer the European Securities and Markets Authority (ESMA) published its advice and opinion on the proposal to extend the marketing passport to non-EU alternative investment fund managers (AIFM) and non-EU funds.  The passport would enable non-EU AIFMs to market their funds across the EU under the single AIFMD regime, rather than seeking investors using the individual countries’ national private placement regimes (NPPR).

As part of the review, ESMA assessed six countries’ regulatory regimes in the context of investor protection, market disruption, competition and monitoring systemic risk.  The outcome of the investigations was mixed.  Whilst Guernsey, Jersey and Switzerland were identified as jurisdictions to which the passport could be extended, it was not such good news for Hong Kong, Singapore and the United States.

For the US, ESMA identified obstacles to the extension.  Chief among these are the absence of remuneration rules for US investment managers and the “unlevel playing field” of the restrictions on EU funds to access US retail investors.  At present, in order for the passport to be extended to the US substantive changes would need to be made to US federal securities laws and regulations regarding the marketing of private funds in the US.  Whilst the SEC does focus on inadequate disclosures of fees, costs and expenses (see our posts here and here), it is highly unlikely that the legislative changes necessary to satisfy ESMA will be forthcoming in the near future.  Consequently US managers will need to continue accessing European investors either by way of the NPPR or reverse solicitation for the foreseeable future.  Each of those approaches continue to bring their own challenges, especially in the absence of guidance regarding the reverse solicitation exemption.

And what of the Cayman Islands?  As you may have noted from the list above, the Cayman Islands was not included as part of ESMA’s first assessments.  This a further blow to US investment managers and the inclusion of the territory on ESMA’s list of relevant jurisdictions will offer little comfort given the time required to conduct an assessment.

All in all, not a great deal has changed for the US firms.

An Investment in Client Service Recognized

Posted in Awards and Recognitions

Pillsbury has been named Best Onshore Law Firm – Client Service at the HFM US Hedge Fund Services Awards 2015.

Ildiko Duckor, co-head of Pillsbury’s Investment Funds & Investment Management practice, thanked all those clients who have “so eloquently praised our services and contributions to their businesses.”


The annual Awards recognize “those hedge fund service providers that have demonstrated exceptional customer service and innovative product development over the past 12 months.”

This marks the fourth time Pillsbury has been honored by HFMWeek in this category.