In 2010 the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) eliminated the private fund adviser exemption. Prior to Dodd-Frank, many managers to hedge funds and private equity funds relied on this exemption from registration as investment advisers. After Dodd-Frank, many private investment fund managers were required to register with the U.S. Securities and Exchange Commission (SEC) as investment advisers. These investment advisers are now subject to significant on-going compliance obligations and examination by the SEC.
This Alert presents a brief synopsis of key compliance dates for SEC-registered investment advisers managing private investment funds. This summary is not intended to be a comprehensive review of all of the compliance and filing obligations for advisers or address the registration thresholds; rather we are providing this to our clients and friends to serve as a general roadmap and reminder of the important dates. Investment advisers registered with states should consider state requirements.
Selected Filing Deadlines
The following filings must be made within 45 days after the calendar-year end(February 14, 2016)
- Institutional investment managers that exercise investment discretion over $100 million or more in Section 13(f) securities must file Form 13F for the year ending December 31.1
- Large traders (whose transactions in NMS securities2 equal or exceed 2 million shares or $20 million during any calendar day, or 20 million shares or $200 million during any calendar month) must file Form 13H for the year ending December 31, even if there are no changes during the preceding year.3
- Registered investment advisers whose accounts are beneficial owners of more than 5% of a registered voting equity security and are eligible to file Schedule 13G instead of Schedule 13D must file an amendment to Schedule 13G. Investment advisers who are required to file Schedule 13D instead of Schedule 13G must "promptly" amend their filings for any material changes.
- Registered commodity trading advisers (CTAs) must file Form CTA-PR. This filing also satisfies the National Futures Association (NFA) Form PR requirement for the fourth quarter.4
The following filings must be made within 60 days after the calendar-year end(February 29, 2016)
- Commodity pool operators (CPOs) that claim an exemption or exclusion under U.S. Commodities Futures Trading Commission (CFTC) Regulation 4.5, 4.13(a)(1), 4.13(a)(2), 4.13(a)(3), or 4.13(a)(5) or CTAs that claim an exemption under 4.14(a)(8) must reaffirm their applicable notice of exemption.
- Large hedge fund advisers (with at least $1.5 billion regulatory assets under management (RAUM)5 attributable to hedge funds) must file Form PF within 60 days after the end of the adviser’s fiscal year.6
- Large CPOs (with at least $1.5 billion or more assets under management attributable to commodity pools) must file CFTC Form CPO-PQR. This filing also satisfies NFA Form CPO-PQR for the fourth quarter.7
The following filings must be made within 90 days after the calendar-year end(March 30, 2016)
- Advisers with a calendar-year fiscal year must file their "annual updating amendment" to Form ADV which includes state notice filings and amendments to Form ADV Part 2, if any. Advisers should fund their IARD account in advance to ensure that they meet the filing deadline.
- Small and mid-size CPOs are required to file portions of CFTC Form CPO-PQR.Form PF filers that file CFTC Form CPO-PQR (Schedule A plus Schedule of Investments) by February 29 or March 30, 2016, depending on AUM, will satisfy this requirement.8 This filing also satisfies NFA Form CPO- PQR for the fourth quarter.9
- With respect to pools with a calendar-year fiscal year, registered CPOs must file audited financial statements (a pool’s Annual Report) for pools with a calendar-year fiscal, certified by an independent public accountant with the NFA and distribute to investors. CPOs can submit a request for extension for a fund-of-funds.
The following filings must be made within 120 days after the calendar-year end(April 29, 2016)
- Calendar-year filers’ deadline for delivering to clients a current brochure (Form ADV Part 2A) with a summary of material changes or a summary of material changes with an offer to provide the brochure.
- Most private funds with calendar-year fiscal years deliver annual audited financial statements to alleviate certain requirements of the custody rule (such as a surprise exam).10
- Private equity fund advisers and smaller private fund advisers with a calendar-year fiscal year must file Form PF.
Additional Compliance Requirements
Investment advisers should also incorporate the following annual obligations into their compliance calendars:
- Rule 206(4)-7 of the Investment Advisers Act of 1940 requires advisers to conduct an annual compliance review by reviewing their policies and procedures to ensure their adequacy and effective implementation. In connection with this review, advisers should consider the SEC’s 2016 exam priorities (2016 Priorities) and recent risk alerts on topics such as cybersecurity and the use of outsourced chief compliance officers.11
- Advisers must collect a personal securities holdings report from each "access person" containing certain required information regarding securities holdings and securities accounts at the time the person becomes an access person, and then on an annual basis.
- Advisers should strongly consider adopting cybersecurity policies and procedures to protect the personally identifiable information (PII) of its clients. Failure to implement and follow appropriate guidelines for protecting client PII (and other information susceptible to cyber attack) could lead to an enforcement action under Rule 30(a) of Regulation S-P, referred to as the Safeguards Rule. The SEC brought just such an enforcement action against an investment adviser in September 2015, resulting in a cease-and-desist order and a $75,000 penalty.12The 2016 Priorities indicate the SEC’s continued commitment to examination of investment advisers’ cybersecurity compliance.
- Advisers to private investment funds who are engaged in open or continuous offerings should consider their on-going obligations including:
- Annual amendments to SEC Form D on or before anniversary of initial Form D filing or most recent amendment. In addition, Form D must be amended as soon as practicable if there are any material mistakes of fact or error or to reflect a change in the information provided in the previously filed notice.
- Many states require annual renewal of state blue sky notice filings (typically Form D). In addition, updates to a blue sky filing may be required if there are material changes to information in the filing (e.g., name or address).
- Funds, their general partners, investment advisers and placement agents should obtain updated certifications and review their obligations under the Bad Actor Rule (Rule 506(d) of Regulation D) at least on an annual basis, if not more frequently.
The following is a brief list of best practices that we recommend private fund advisers consider at least on an annual basis:
- Review disclosures in marketing materials, partnership agreements, offering memoranda and side letters for any certifications, notices and reporting obligations. Ensure that your disclosures in Form ADV, Form PF and your offering documents are consistent and representative of your business. Confirm fee and expense allocations conform with your offering documents, internal policies and procedures and investor communications.
- Confirm ongoing monitoring of the ERISA plan asset threshold. Also, have you committed to deliver VCOC or REOC certifications?
- Consider seeking an annual representation from all fund investors as to any changes in their eligibility to participate in profits and losses from new issues.
- Review state and local lobbyist filings and monitor required obligations.
- Perform diligence on Key Service Providers. Are there any material service level issues that need to be addressed? Distribute questionnaires, conduct on-site visits and background checks as necessary.
- Review recent guidance issued by the SEC concerning activities that do and do not qualify as "general solicitation" for purposes of offerings under Regulation D.13Review fundraising and marketing activities to ensure they are in line with the recent guidance and take appropriate steps to comply moving forward.
Future Considerations in 2016
With an eye on the regulators’ agendas for 2016, the following is a brief snapshot of the pending proposals to keep in mind:
- The SEC recently published and is reviewing a report and recommendations concerning changes to the definition of "accredited investor." Recommendations in the report include, among others, revising the income and net worth thresholds for natural persons, revising the list-based approach for entities to qualify as accredited investors and allowing individuals to demonstrate adequate sophistication in ways other than meeting financial thresholds.14
- The SEC announced in its 2016 Priorities that it will maintain its focus on private fund advisers’ fees and expenses and will evaluate controls and disclosures concerned with simultaneous management of performance-based and asset-based fee accounts.
- On May 20, 2015, the SEC issued a rulemaking proposal regarding proposed amendments to Form ADV that requires different or additional information than advisers have provided in the past.15 Key elements of the proposed amendments require providing significant information about advisers’ separately managed accounts and additional information about an advisers’ businesses. The proposed amendments also provide an "umbrella registration" mechanism for private fund advisers and include certain clarifying amendments.
- On August 25, 2015, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network issued a rulemaking proposal to require registered investment advisers to comply with certain portions of the Currency and Foreign Transactions Reporting Act of 1970, commonly known as the Bank Secrecy Act. The proposed rule requires registered investment advisers to establish anti-money laundering programs and report suspicious activity. Additionally, the rule proposal would incorporate investment advisers into the definition of "financial institution," requiring them to file Currency Transaction Reports.
- The Bipartisan Budget Act of 2015 repealed certain sections of the Internal Revenue Code 1986 applicable to partnerships and limited liability companies taxed as partnerships and replacing them with new rules.16 The new rules provide the potential for partnership level (instead of investor level) tax adjustment and require funds to consider certain elections prior to January 1, 2018.
- Funds based in the Cayman Islands will be required to obtain self-certification forms containing tax-related information from new (after January 1, 2016) and pre-existing investors. The exact timeline for obtaining the self-certifications will be based on date of subscription and account size.