Does it ever make sense to file something with the US government when it is not clear whether the filing is required, or what might need to be filed?

Recently, the staff of the US SEC’s Division of Investment Management issued an “Information Update” to provide some level of guidance to multinational investment management firms about what information, if any, should be submitted to the SEC to meet the firms’ obligations under the “Unibanco” No-Action Letters.  

The “Unibanco” Letters are a series of no-action letters addressing the extraterritorial application of the Investment Advisers Act of 1940. In them, the staff provided relief from enforcement of certain regulations for a non-US adviser’s relationships with its non-US clients, and for sharing of certain personnel between a registered investment adviser and its non-US advisory affiliate (also known as a “participating affiliate”). The Unibanco Letters were predicated on the concept that participating affiliates of registered advisers would consent to US and SEC jurisdiction and would submit certain information to the SEC. 

But, as it happens, the Unibanco Letters are not at all clear about certain aspects of this documentation process. The SEC staff “generally believes” that participating affiliates seeking to share personnel with and provide certain services to US clients through the registered adviser must document certain representations and undertakings, and submit those documents to the staff by email at IMOCC@sec.gov.  The subject line “Participating Affiliate” should be used when submitting information by email. 

Unfortunately, however, neither the Unibanco Letters nor the Information Update are clear as to the extent to which required conditions, representations and undertakings must be documented, the extent to which such documentation must be submitted to the SEC, and whether the submission is a pre-condition to reliance on the Unibanco Letters (i.e., the timing of such submissions).  Accordingly, certain “participating affiliates” seeking to rely upon the Unibanco Letters may opt to provide the “Unibanco representations and undertakings” only upon request by the SEC staff, such as in connection with an SEC examination of the affiliated registered adviser.  Although the requirements of the Unibanco Letters, even as supplemented by the Information Update, remain somewhat ambiguous, the SEC staff certainly has the authority to examine whether submissions have been made to the SEC staff.  And, to the extent that insufficient submissions were made, the staff has the authority to cite that as a “deficiency” in an examination deficiency letter.  

Therefore, in an effort to avoid being cited for a possible deficiency regarding documentation of the Unibanco representations and undertakings, it may be more prudent (and possibly less expensive and burdensome) for registered advisers and their participating affiliates to robustly document and submit “jurisdictional documents” to the SEC staff.