United States – Page 2 – Global Investment Law Watch

More Marketing Missteps

Sep 10 2024

By: Pablo Man, Pamela Grossetti, Lance Dial and Jennifer Klass

On 9 September 2024, the Securities and Exchange Commission (SEC) announced settled charges against nine registered investment advisers for violations of Rule 206(4)-1 (the Marketing Rule). Unlike the prior settlements (which focused primarily on the use of hypothetical performance), these settlements focused on other elements of the Marketing Rule: (i) the prohibitions on statements of material fact that are untrue or that the adviser cannot substantiate; (ii) disclosures relating to testimonials and endorsements; and (iii) required disclosures for third-party ratings. Many of these violations were based on website disclosures. In total, nine advisers agreed to pay US$1,240,000 in combined civil penalties, ranging from US$60,000 to US$325,000.

FinCEN Narrows the Final AML Requirements for Investment Advisers

Aug 30 2024

By: Richard F. Kerr and Jennifer L. Klass

On 28 August 2024, the Financial Crimes Enforcement Network (FinCEN) finalized regulations that add certain investment advisers (Covered Advisers) to the definition of a “financial institution” under the Bank Secrecy Act thereby requiring Covered Advisers to, among other things, establish anti-money laundering (AML) and counter-terrorist financing (CFT) programs and file Suspicious Activity Reports with FinCEN. The effective date of the new rules is January 1, 2026.

Form N-PORT and Form N-CEN Reporting; Guidance on Open-End Fund Liquidity Risk

Aug 29 2024

By: Jon-Luc Dupuy, Nicholas O. Ersoy, and Jordan A. Knight

On 28 August 2024, the United States Securities and Exchange Commission (SEC) adopted amendments to Rule 30b1-9 under the Investment Company Act of 1940, as amended, and Forms N-PORT and N-CEN (Final Rule). More specifically, the SEC adopted rule and form amendments that will: (1) require certain registered investment companies, including registered open-end funds, registered closed-end funds, and exchange traded funds organized as unit investment trusts but excluding money market funds, that report on Form N-PORT to file such reports on a monthly basis within thirty (30) days after the end of that month (rather than filing no later than sixty (60) days after the end of the fiscal quarter for the three (3) months in such quarter as currently required); and (2) amend Form N-CEN to require open-end funds to report certain information about service providers used to comply with liquidity risk management program requirements, among other technical amendments to the relevant rule and forms.

The SEC Is Not Done Bringing Enforcement Actions for Off-Channel Communications

Aug 15 2024

By: Pablo J. Man and Lance C. Dial

Following a number of eyebrow-raising settlements with broker-dealers and dual registrants and a standalone investment adviser, on 14 August 2024 the SEC settled charges against 26 broker-dealers, investment advisers, and dual registrants for recordkeeping failures related to off-channel communications. The combined monetary penalties totaled nearly US$393 million, with individual penalties ranging from US$400,000 to US$50 million. The SEC noted that three of the firms (which paid US$5.5 million, US$4.5 million, and US$1.6 million penalties) self-reported their violations and consequently paid “significantly less” than they otherwise would have.

Missouri Anti-ESG Rules Struck Down

Aug 15 2024

By: Lance C. Dial and Pablo J. Man

Yesterday, 14 August 2024, a United States District Court issued a decision in Securities Industry and Financial Markets Association vs. Ashcroft finding that a pair of “anti-ESG” regulations promulgated by the Missouri Securities Division were both preempted by federal law and unconstitutional. While specifically applicable only to the Missouri regulations, this decision sets new guardrails for existing and future state regulation of federally-registered broker-dealers and investment advisers both generally and relating to environmental social and governance (ESG) investing.

CME Group Clarifies and Emphasizes the Duty to Supervise Trading on its Markets

Aug 09 2024

By: Clifford Histed and Cheryl Isaac

If you or your company trades on CME, CBOT, NYMEX or COMEX (CME Group exchanges, collectively referred to herein as “CME”), you will need to take note of CME’s new Market Regulation Advisory Notice (MRAN), which became effective on 16 July. The new MRAN is called “Supervisory Responsibilities for Employees and Agents” and should be reviewed closely to understand CME’s expectations related to diligent supervision, including policies, trainings, monitoring, remediation and sanctions.

Child’s Play: Congress Proposes Allowing Sandboxes for AI Within the Financial Services Industry

Aug 07 2024

By Matthew J. Rogers and Maxwell J. Black

A bipartisan group in the US Congress has introduced legislation that aims to foster artificial intelligence (AI) innovation within the financial services industry by creating regulatory sandboxes. This new bill marks a significant step toward a unified, nationwide framework for regulating AI in the financial services industry.

PFAR Appeal Timeline Runs Out

Jul 24 2024

By: Ed Dartley and Jamie M. Robinson

The clock ran out Monday, 22 July 2024 for the SEC and its timeline to appeal the unanimous decision of the US Court of Appeals for the Fifth Circuit to vacate the Private Fund Adviser Rules (PFAR). The 2023 August adoption of PFAR and the Fifth Circuit’s 2024 June subsequent decision to vacate, has caused both controversy and compliance confusion across the private fund sector over the last few years. Even in the absence of an appeal, open questions remain surrounding the implications of future rulemaking under Section 206(4) of the Advisers Act and the SEC’s stated goal to enhance transparency in the private funds space.

While the next steps for the SEC remain to be seen, managers and investors alike will still need to gauge market reaction to the core principles of PFAR and how they may drive industry initiatives separate and apart from any future regulatory efforts. For example, Institutional Limited Partners Association (ILPA) continues to adjust the parameters of the “Quarterly Reporting Standards Initiative” which was launched in early 2024 and proposes model reporting forms that are substantively similar to what was proposed in the Quarterly Statements provision of PFAR. Now that the “wait and see” attitude on PFAR is past us, it can be expected that private fund industry participants will continue to explore the parameters of the goals that PFAR tried to achieve.

ISDA Publishes Framework to Facilitate Close-Out of Derivatives Contracts

Jul 08 2024

By: Kenneth Holston, Cheryl L. Isaac, Matthew J. Rogers, Jordan A. Knight, and Bradley D. Bostwick

On 27 June 2024, ISDA published the ISDA Close-out Framework, an interactive decision tree that market participants can use to help prepare for potential terminations of collateralized derivatives contracts that are documented under an ISDA Master Agreement. The ISDA Close-out Framework was launched in response to the March 2023 failures of Signature Bank and Silicon Valley Bank, which shed light on the complexities of terminating swaps and other over-the-counter derivatives in the multifaceted post-financial crisis swap regulatory regimes. ISDA designed this framework in response to feedback from the derivatives industry that factors such as segregated margin and stays on the exercise of termination rights and remedies makes terminating and closing out derivatives contracts increasingly complex.

Next Regulator Up: Treasury Department Explores AI in the Financial Sector

Jun 11 2024

By: Matthew J. Rogers and Maxwell J. Black

On 6 June 2024, the Department of the Treasury (the Treasury) published a request for information on the use of artificial intelligence (AI) in the financial services sector, with the goal of gathering input from a wide range of stakeholders. This request follows soon after the Treasury’s report on AI and cybersecurity.

Like other US regulators, including the Commodity Futures Trading Commission (CFTC), the Treasury is interested in understanding the opportunities and risks posed by AI, including the potential impact on consumers, investors, financial institutions, and businesses. Specifically, the Treasury is seeking feedback on the definition of AI under President Biden’s Executive Order on Safe, Secure, and Trustworthy Development and Use of AI, the types of AI models and tools used by financial institutions, and the general accessibility of AI.

Of particular interest is the Treasury’s query regarding a potential “human capital shortage” in financial organizations. This concerns the scenario where companies utilize AI tools without sufficient employees that fully understand their mechanisms. Additionally, the request solicits perspectives on model risks, operational risks, compliance risks, and third-party risks, among others.

This request for information shows that the Treasury is looking to augment the efforts of the CFTC, Securities and Exchange Commission (SEC), and banking agencies, which have also requested similar AI-related information. It remains to be seen the extent to which federal agencies such as the Treasury coordinate their rulemaking processes and how any such rules will fit together.

Tag:United States