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The California Commissioner of Corporations (Commissioner) has released a notice regarding readoption of the emergency regulation on private adviser exemption.

On January 5, 2012, the Commissioner will file with the Office of Administrative Law (OAL) the readoption of emergency regulations to extend the effectiveness of Rule 260.204.9 (10 C.C.R. §260.204.9) for a period of no longer than 90 days.    The changes to the rule will extend the current exemption from registration for investment advisers who are deemed private advisers for an additional 90 days.  The anticipated operative date of the emergency regulation is January 18, 2012. 

Information regarding the readoption of the  emergency proposal is posted on  the “What’s New” section of the Department of Corporations’ home page  (available at www.corp.ca.gov).

Pillsbury will continue to monitor this development and post additional information as soon as it becomes available.

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Written by Peter J. Chess

On November 30, 2011, FINRA and the SEC’s Office of Compliance Inspections and Examinations (OCIE) released a National Exam Risk Alert on effective procedures and policies for broker-dealer branch inspections. This follows other recent guidance for broker-dealers regarding the Market Access Rule and reasonable investigations in Regulation D Offerings, in addition to recent FINRA sanctions against broker-dealers related to Regulation D Offerings.

Under Sections 15(b)(4)(E) and 15(b)(6)(A) of the Exchange Act, the SEC can impose sanctions on any firm or any person that fails to reasonably supervise someone subject to supervision that violates the federal securities laws. A broker-dealer can defend such a charge with a showing of effective procedures and policies designed to prevent and detect potential violations.

The National Exam Risk Alert jointly released on November 30 by FINRA and the OCIE (“November 30 Alert”) concerns broker-dealer branch inspections which are required by the Exchange Act and FINRA rules. Examination staff have observed that firms that execute these inspections well typically:

  • tailor the focus of branch exams to the business conducted in that branch and assess the risks specific to that business;
  • schedule the frequency and intensity of exams based on underlying risk;
  • engage in a significant percentage of unannounced exams selected based on both risk analysis and random selection;
  • deploy sufficiently senior branch office examiners to conduct the examinations; and
  • design procedures to avoid conflicts of interest with examiners.

The November 30 Alert also lists typical findings about firms with deficiencies in their inspection process, including the utilization of generic examination procedures for all branch offices; the use of novice or unseasoned branch office examiners; the performance of “check the box” inspections; and, the lack of adequate procedures and policies.

The November 30 Alert is the second such Alert released this quarter by the OCIE. On September 29, 2011, OCIE released a National Exam Risk Alert  (September 29 Alert) regarding the master/sub-account structure and potential risks of noncompliance for broker-dealers with the recently adopted Rule 15c3-5 (the Market Access Rule).

The Market Access Rule requires broker-dealers to have a system of risk management control and supervisory procedures reasonably designed to manage the financial, regulatory and other risks of the business activity associated with providing a customer or other person with market access. Deficiencies in risk management control and supervisory procedures raise significant regulatory concerns with respect to money laundering, insider trading, market manipulation, account intrusions, information security, unregistered broker-dealer activity, and excessive leverage.

Recent FINRA Enforcement Actions Against Broker-Dealers

On September 29, 2011, FINRA also announced it had sanctioned another eight firms and ten individuals and ordered restitution totaling more than $3.2 million due to violations related to private placements. FINRA previously announced similar sanctions against broker-dealers in April 2011, and the most recent announcement brings the total to ten firms and seventeen individuals sanctioned by FINRA since April for involvement in problematic private placements.

The sanctions stem from a variety of issues uncovered by FINRA related to firms selling private placement offerings, including the lack of a reasonable basis for recommending the offering; failure to conduct a reasonable investigation of the offering; failure to have adequate supervisory systems in place; failure to conduct adequate due diligence of offerings; lack of reasonable grounds regarding the suitability of the offering for customers; and, lack of reasonable grounds to allow registered representatives of firms to continue selling the offerings, despite numerous “red flags.”

These sanctions follow FINRA’s release of a Regulatory Notice in April 2010 (“April 2010 Notice”) regarding the obligation of broker-dealers to conduct reasonable investigations in Regulation D, or private placement, offerings. The April 2010 Notice provided guidance on many of the issues at the heart of the recent sanctions by FINRA related to private placements. The April 2010 Notice noted that broker-dealers had many requirements triggered by private placement offerings, including: a duty to conduct a reasonable investigation concerning the security and the issuer’s representations about it; a duty to possess reasonable grounds to recommend transactions that are suitable for the customer; and, other specific responsibilities that could be triggered based on specific factors with each transaction.

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Written by Michael Wu and Judy Deng

The Year of Rabbit continued to see the proliferation of RMB funds and portfolio investments made by RMB funds. As of Q3 of 2011, 63 RMB funds were raised in mainland China and the total capital raised for investments in mainland China was estimated to be RMB4.2 billion (Source: Zero2IPO). Perhaps no longer a new term, “RMB funds” generally refer to the investment funds organized as corporations, limited partnerships or other unincorporated forms in China that invest in non-public companies primarily located in China. Over the past five years, RMB funds have become the investment vehicle of choice for many non-Chinese fund managers, as they have certain advantages over non-Chinese funds investing into China, including: (1) access to domestic Chinese investors (i.e., limited partners), which generally are more inclined to invest through a China-registered fund, than a non-Chinese fund; and (2) the ability to permit large non-Chinese institutional investors, which only have non-Chinese currencies, to capitalize on the regulations designed to attract foreign investment into China (e.g., the “Qualified Foreign Limited Partnership” or “QFLP” regime in Shanghai, Beijing and other RMB fund hubs).

Yet, it is notable that less than half of the capital raised in RMB funds from domestic Chinese investors has come from state owned institutional investors.  To date, due to regulatory reasons, state-owned institutional investors, particularly government institutions, government-funded guidance funds and universities, have been playing a very limited role as limited partners in private equity and venture capital funds in China (Source: First Financial Daily).  Over the past couple years, China’s regulators, including the National Reform and Development Commission (NDRC), China Securities Regulatory Commission (CSRC), China Banking Regulatory Commission (CBRC), China Insurance Regulatory Commission (CIRC) and People’s Bank of China (PBOC), have implemented legislation designed to allow certain institutions greater flexibility to make equity investments in private companies.  However, much of this legislation has yet to be implemented and official guidance thus far has been limited.  Thus, we haven’t seen a significant increase in investments into RMB funds by state-owned institutional investors.

The following lists certain of the key state-owned institutional investors and the regulatory developments in 2011 that have impacted or will impact their equity investment capabilities.

  • Securities Companies.   Securities companies are now officially permitted to make direct equity investments in Chinese companies pursuant to a set of guidelines issued by the CSRC in July 2011.  The guidelines permit securities companies to directly invest in Chinese entities or form “direct investment funds” (“DIF”) to raise and manage capital for equity investment into such companies, provided that (i) a securities company must form an intermediary known as a “direct investment subsidiary”; (ii) the aggregate capital employed by a securities company in its direct investment business may not exceed 15% of its net assets; and (iii) the securities companies abide by certain restrictions regarding fund raising (e.g., they can only raise capital in a private offering from institutional investors and may not have more than 50 investors).  Prior to the issuance of the guidelines, the CSRC only approved the direct investment of securities companies on a special approval or case-by-case basis.  Reportedly, China International Capital Corporation Limited (CICC) became the first securities company to raise an equity investment fund approved pursuant to the guidelines.
  • Pension Funds.  The Administrative Measures on Enterprise Pension Funds (“Measures”) were amended early this year and went into effect on May 1, 2011. The amended Measures removed the previous investment limit regarding the capital that may be used in “stock investments” by a pension fund, which had been 20% of its net assets.  However, the Measures still require that no more than 30% of a pension fund’s net assets be invested in “rights instruments such as stock and investment-nature insurance products, and stock funds.”  Apparently, there is still some uncertainty regarding whether the terms “stock” and “rights instruments” were intended to include private equity investments. As such, many industry experts believe that it would be some time before pension funds are officially permitted to make private equity investments.
  • Commercial Banks.  Under the Commercial Banks Law (amended in 2003), commercial banks are restricted from making equity investments in “domestic” enterprises. Although this restriction is currently still in place, some commercial banks reportedly seek to make indirect investments into domestic equity investment projects, such as investing through an offshore intermediary.
  • Insurance Companies. There was no new guidance in 2011 regarding whether Chinese insurance companies may make outbound private equity investments. In addition, many industry experts have concluded that an insurance company may not act as a limited partner in an equity investment fund unless it is managed by the insurance company.  In 2011, China Life reportedly became the first insurance company to obtain a private equity investment license under the 2010 regulation.  For a discussion on the 2010 regulation, please see our blog post titled “China Permits Insurance Companies to Invest in Private Equity.”

Over the past several years, non-Chinese fund managers have shown great interest in raising capital from Chinese limited partners.  However, for regulatory and practical reasons, the fund raising efforts of non-Chinese fund managers have not been as successful as hoped.  In addition to the regulatory restrictions specifically affecting state-owned institutional investors, as discussed above, there are a number of other hurdles that must be overcome before a limited partner may or will invest in a RMB fund.  The following are two examples of the hurdles non-Chinese fund managers currently face when attempting to fund raise from domestic Chinese investors.

  • NDRC Recordation.  In early 2011, the NDRC issued a Notice to reinforce the “recordation” requirement applicable to equity investment enterprises (“EIEs”) primarily in six provinces/municipalities. Institutional EIEs with investment capital of more than RMB500 million are required to obtain a recordation with the national office of NDRC, while other EIEs need to be recorded with the regional offices of NDRC.  Currently, there is no explicit requirement or process for recording a foreign-invested EIE with NDRC, which would pose a hurdle on such EIEs’ efforts  to raise capital from the National Social Security Foundation. However, some of the larger, foreign-invested RMB funds have been successful in obtaining recordation with NDRC on a case-by-case basis.
  • Structuring.  How a fund is structured is critical to fund raising.  A fund with any foreign equity investment will be considered as a foreign-invested enterprise (with limited exceptions, such as certain funds blessed by the QFLP regime), and thus restricted from investing in various industrial sectors, such as internet, automobile, certain energy industries and certain real estate developments.  Domestic Chinese investors often prefer to invest in a purely domestic fund, which does not have the same restrictions as foreign-invested funds.  To address this issue, some fund managers have structured their funds as “parallel funds,” which is accomplished through a contractual arrangement between two separate funds to share management, deal sourcing and exit opportunities. 

The industry is hoping that the regulators will enact an Amended Securities Investment Fund Law (SIFL), which many believe will include guidance on private equity investment. However, even if private equity investment is thoroughly covered in the SIFL, we speculate that the provisions will be focused on investor protections, rather than on clarifying the investment capabilities of various investor groups. 

As always, we will continue to provide timely updates on new developments affecting private equity and venture capital investment in China, as they occur, in 2012.

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Written by Ildiko Duckor

An entity that meets the definition of a “Large Trader” after October 3, 2011 must file its initial Form 13H with the SEC by December 1, 2011 to be assigned a large trader identification number (LTID).  The filing is done electronically through the SEC’s EDGAR system.  The LTID must be disclosed to registered broker-dealers effecting transactions on behalf of the Large Trader. 

If you as a general partner or investment adviser (including any entities or individuals over which you have control, e.g., the right to vote or direct the vote of 25% or more of a class of voting securities of an entity) have investment discretion over aggregate transactions in exchange-listed securities that equal or exceed the Identifying Activity Level of: (i) 2 million shares or $20 million during any calendar day or (ii) 20 million shares or $200 million during any calendar month, you may qualify as a Large Trader and may have to file a Form 13H. 

When calculating the “Identifying Activity Level:” (i) aggregate all transactions during the specified period (one day and/or one month) (ii) for all “NMS securities” (national market securities, generally (exchange-listed securities including equities and purchases and sales (but not exercises) of options) and (iii) exclude the specified transactions that are exempt from consideration (as listed in the below-linked documents). 

Form 13H filing is required to be filed annually with the SEC within 45 days after the end of a Large Trader’s full calendar year. 

A full text of the SEC Final Rule and Form 13H is available here.

Please contact the IFIM team for assistance.