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Investment Advisers Act of 1940 Proposed Amendments

Introduction to the Investment Advisers Act of 1940

The Investment Advisers Act of 1940 (the “Act”) regulates investment advisers – firms and individuals who are compensated for advising others about securities investments. The Act requires such advisers to register with the SEC and conform to regulations designed to protect investors. Since the Act was amended in 1996 and 2010, generally only advisers who have at least $100 million of assets under management or advise a registered investment company must register with the Commission. Other investment advisers typically register with the state in which the investment adviser maintains its principal place of business.

Proposed New Rules and Amendments

On February 9, 2022 the SEC voted to propose new rules and amendments under the Investment Advisers Act of 1940 to enhance the regulation of private fund advisers and to protect private fund investors by increasing transparency, competition, and efficiency in the $18-trillion marketplace.

Quarterly Statements Required

The proposed rules are intended to increase transparency by requiring registered private fund advisers to provide investors with quarterly statements detailing certain information regarding fund fees, expenses, and performance.

Disclosure of Preferential Treatment

Additionally, the proposed rules would prohibit private fund advisers, including those that are not registered with the SEC, from providing certain types of preferential treatment to investors in their funds and all other preferential treatment unless it is disclosed to current and prospective investors.

New Audit and Books and Records Requirements

The proposed changes also would create new requirements for private fund advisers related to fund audits, books and records, and adviser-led secondary transactions.

Additional Changes

The proposals also would prohibit all private fund advisers from engaging in several activities, including seeking reimbursement, indemnification, exculpation, or limitation of liability for certain activity; charging certain fees and expenses to a private fund or its portfolio investments, such as fees for unperformed services and fees associated with an examination or investigation of the adviser; reducing the amount of an adviser clawback by the amount of certain taxes; charging fees or expenses related to a portfolio investment on a non-pro rata basis; and borrowing or receiving an extension of credit from a private fund client.

In addition, the SEC proposed amendments to the Advisers Act compliance rule that would require all registered advisers, including those that do not advise private funds, to document the annual review of their compliance policies and procedures in writing.

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The Securities Lawyer