ERIC S. WAGNER

The SEC has continued and expanded its focus on violations of Rule 21F-17 of the Securities Exchange Act of 1934 (i.e., the whistleblower protection rule). The SEC began actively enforcing the whistleblower protection rule many years ago, although enforcement actions in late 2023 reflected an intensified focus on whistleblower protections in separation agreements and other…

The U.S. Corporate Transparency Act (“CTA”) requires certain privately owned entities to report information about the people who control them (their “beneficial owners”) to the Financial Crimes Enforcement Network of the U.S. Department of the Treasury (“FinCEN”). The CTA rules generally apply to privately owned limited liability companies (LLCs), limited partnerships (LPs), corporations and other…

Firms should review their employment related agreements to determine if any changes are necessary. In September 2023, the SEC issued orders against each of D.E. Shaw & Co., L.P. (“D.E. Shaw”), CBRE, Inc. (“CBRE”) and Monolith Resources LLC (“Monolith”) in connection with provisions in their separation agreements and other employment-related documents that violated Rule 21F-17…

On June 23, 2020, the staff of the Office of Compliance Inspections and Examinations (“OCIE”) of the U.S. Securities and Exchange Commission (the “SEC”) issued a risk alert (the “Risk Alert”) that provides an overview of certain compliance issues and deficiencies that OCIE has observed in recent examinations of registered investment advisers that manage private…

The LIBOR transition encompasses far-ranging legal issues that impact the investment management industry, including the potential impact on trading and derivatives portfolios, fund performance targets within fund documentation, financing and brokerage arrangements, and a wide range of operational and other issues that need to be considered by managers. Background LIBOR (London Interbank Offered Rate) is…

On May 28, 2020, the Commodity Futures Trading Commission (“CFTC”) approved proposed amendments to CFTC Regulation 3.10(c), which currently provides a jurisdictional based registration exemption for non-U.S. commodity pool operators (“CPOs”) that operate non-U.S. funds with non-U.S. investors (the “Proposed Amendments”). Historically, the CPO registration exemption available under Regulation 3.10(c)(3) has presented challenges for non-U.S.…

On May 20, 2020, the Federal Reserve Bank of New York (the “New York Fed”) announced June 17, 2020 as the first subscription date and June 25, 2020 as the first closing date of the Term Asset-Backed Loan Facility (“TALF 2.0”). The Board of Governors of the Federal Reserve System first authorized TALF 2.0 on March…

On May 12, 2020, the Federal Reserve Board (the “Fed”) updated its term sheet of the Term Asset-Backed Loan Facility (“TALF 2.0”) that it authorized on March 23, 2020 and updated on April 9, 2020. The full updated term sheet can be found here. The Fed also released a list of frequently asked questions (“FAQs”)…

On April 9, 2020, the Federal Reserve Board (the “Fed”) updated its term sheet of the Term Asset-Backed Loan Facility (“TALF 2.0”) that it authorized on March 23, 2020. The key changes include: updates to the definition of eligible borrower, additions to the types of eligible collateral, changes to loan pricing, and the release of…

On March 25, 2020, the U.S. Securities and Exchange Commission (“SEC”) issued an exemptive order (the “Updated Order”1) expanding the temporary regulatory relief from certain Form ADV and Form PF requirements previously granted under its March 13, 2020 exemptive order (the “Original Order”) to investment advisers whose operations may be disrupted by the outbreak of…

On March 23, 2020, the Federal Reserve Board (the “Fed”) authorized the revival of its Term Asset-Backed Loan Facility (“TALF 2.0”) previously established following the 2008 financial crisis. TALF 2.0 is a credit facility intended to support the asset-backed securities (“ABS”) markets for consumers and businesses by creating a new source of stable funding for investors…

On March 20, 2020, the Commodity Futures Trading Commission (the “CFTC”) provided temporary no-action relief to registered commodity pool operators (“CPOs”) by extending the filing timeline for certain ongoing reporting/filing obligations. The CFTC’s no-action letter provides an extension for the following:(i) filing Form CPO-PQR under Regulation 4.27, (ii) submitting pool annual reports under Regulations 4.7(b)(3)…

On March 13, 2020, the U.S. Securities and Exchange Commission (“SEC”) issued an exemptive order (the “Order” [1]) granting conditional relief from certain Form ADV and Form PF requirements to investment advisers whose operations may be disrupted by the outbreak of the COVID-19 virus. In addition, on March 16, 2020, the staff of the SEC’s…

On March 18, 2020, the Commodity Futures Trading Commission (the “CFTC”) voted unanimously to extend the uncleared swap initial margin compliance timeline for financial entities with smaller swap portfolios from September 1, 2020 to September 1, 2021. Phase 6 Compliance Group The newly created “Phase 6” compliance group will provide many private funds and other…

With the increasing concerns surrounding the impact of COVID-19 around the world, global financial markets are facing a unique set of difficulties. Fund managers, family offices and other buy-side market participants should consider reviewing their counterparty trading and brokerage arrangements to understand the impact of these events on their trading portfolios and their counterparties. Below…

On January 1, 2020, amendments to the Financial Industry Regulatory Authority, Inc. (“FINRA“) Rule 5130 (Restrictions on the Purchase and Sale of Initial Equity Public Offerings) and Rule 5131 (New Issue Allocations and Distributions) came into effect [1]. Per the U.S. Securities and Exchange Commission (“SEC“), the rule changes “exempt additional persons and offerings, modify…

Recently, the U.S. Commodity Futures Trading Commission (the “CFTC”) approved amendments to Regulations 4.5, 4.7, 4.13, 4.14, and 4.27 that will impact investment managers that are operating funds that fall within the definition of a commodity pool. These new regulations will take effect on January 9, 2020.[1] Some key highlights of the amendments include: •…

Beginning January 31, 2021, all swap associated persons and their supervisors (“APs”) will be required to satisfy the National Futures Association’s (the “NFA”) new swaps proficiency requirements. These requirements will apply to, among others, APs of investment managers registered with the NFA as commodity pool operators (“CPOs”) or commodity trading advisors (“CTAs”) that engage in…

On January 13, the Securities and Exchange Commission (the “SEC”) announced 2015 examination priorities for registered entities.[1]  The SEC groups the priorities into three general thematic areas: protecting retail investors, assessing market-wide risks and using data analytics to identify potential wrongdoing.  The SEC notes that the list of priorities is not exhaustive and priorities may…

On September 10, 2014, the Securities and Exchange Commission (“SEC”) announced charges against 28 officers, directors or major shareholders for delinquent Schedule 13D/13G and/or Form 41 filings in violation of federal securities laws requiring them to promptly report information about their holdings and transactions in company stock. The SEC also charged six publicly-traded companies for…

In a long-awaited action, on September 9th the Division of Swap Dealer and Intermediary Oversight of the Commodities Futures Trading Commission (“CFTC”) issued an exemptive letter providing relief for private investment funds using general solicitation pursuant to Securities and Exchange Commission (“SEC”) Rule 506(c). Rule 506(c), which was issued last year pursuant to the Jumpstart…

On July 10, 2013, the Securities and Exchange Commission issued long awaited amendments to Rule 506 under Regulation D, one of the most widely used exemptions for selling securities without registration under the Securities Act of 1933 (the “Securities Act”). These amendments are mandated by the JOBS Act, which was passed last year, and will…

On July 10, 2013, the Securities and Exchange Commission approved final rules that disqualify securities offerings from relying on the safe harbor provided by Rule 506 of Regulation D under the Securities Act of 1933 if certain felons or other bad actors are involved in the offering. The rules were required by Section 926 of…

The Securities and Exchange Commission (the “SEC”) has adopted a new rule, defining the term “family office” for purposes of exempting family offices from registration under the Investment Advisers Act of 1940, as amended (the “Advisers Act”). Rule 202(a)(11)(G)-1, and Release No. 1A-3220. In adopting the final Rule, the SEC considered approximately 90 comment letters,…

In a letter to the president of the North American Securities Administrators Association, the Associate Director of the U.S. Securities and Exchange Commission (the “Commission”) Division of Investment Management, Robert E. Plaze, stated that although the Commission’s staff anticipates that the implementing rulemaking under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank…

The Securities and Exchange Commission (the “SEC”) adopted amendments (the “Amendments”) to Part 2 of Form ADV (commonly referred to as the “brochure” and currently designated Part II of Form ADV).1 The Amendments are intended to provide advisory clients with clearly written, meaningful, current disclosure of the business practices, conflicts of interest and background of…