I OVERVIEW OF RECENT ACTIVITY
In response to the financial crisis, Congress adopted the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act). The Dodd-Frank Act was intended to improve the functioning of the financial markets, enable enhanced monitoring of systemic risk and provide better investor protections. However, much of the Dodd-Frank Act was not self-executing and required various regulatory agencies to adopt rules implementing its provisions. As a result, the majority of regulatory changes over the past year affecting asset managers related to the continued implementation of the Dodd-Frank Act by regulators. In addition to the changes mandated by the Dodd-Frank Act, regulators have also independently adopted or proposed other regulatory reforms to achieve the goals of the Dodd-Frank Act. The most significant changes affecting asset managers are described in more detail in Section V, infra.
The Dodd-Frank Act is widely regarded as the most sweeping reform of asset management regulation in the US since the 1940s. As a result, since the enactment of the Dodd-Frank Act and the promulgation of related regulations, asset managers subject to US law have devoted significant time and resources to designing new or revised compliance programmes, hiring new compliance personnel, drafting new disclosures to the government and investors, and amending agreements to meet new requirements.
II GENERAL INTRODUCTION TO the REGULATORY FRAMEWORK
The key statute in the US applicable to investment advisers generally is the Investment Advisers Act of 1940 (Advisers Act). An investment adviser is defined under the Advisers Act to include a person or entity who, for compensation, engages in the business of advising others as to the value of securities or as to the advisability of investing in, purchasing or selling securities.2 Absent an exemption, an investment adviser must register as such with the Securities and Exchange Commission (SEC).3
The most common exemptions from registration as an investment adviser are for advisers solely to venture capital funds, family offices and advisers solely to private funds that have less than US$150 million in assets in the aggregate. Detailed rules have been adopted under each of these exemptions, as well as the exemptions described in the next paragraph, to define applicable terms.4
Non-US advisers have two additional exemptions – the private fund adviser exemption and the foreign private adviser exemption. Under the foreign private adviser exemption, an investment adviser is exempt from registration if it:
- a has no place of business in the US;
- b has fewer than 15 US clients and investors in private funds5 advised by the adviser;
- c has aggregate assets under management attributable to US clients and investors in private funds advised by the adviser of less than US$25 million;
- d does not hold itself out generally to the public in the US as an investment adviser; and
- e does not act as an adviser to a US registered investment company or a business development company.
Under the private fund adviser exemption, an investment adviser with its principal office and place of business outside of the US is exempt from registration if it has no client that is a US person except for one or more private funds, and all assets under management by the adviser at a place of business in the US are solely attributable to private fund assets, the total value of which is less than US$150 million. To rely on the exemption, the adviser must make certain publicly available periodic informational filings with the SEC.
Finally, advisers that have registered with the SEC are exempted from state registration requirements. However, such advisers remain subject to state anti-fraud provisions, as well as reporting requirements under certain circumstances. With certain exceptions, advisers with less than US$100 million in assets under management are not permitted to register with the SEC. As a result, these smaller advisers may be subject to state registration requirements if they have clients in a particular state.
An adviser registering with the SEC must file Form ADV, which consists of three parts.6 Part 1A requests information regarding the adviser and its clients, including assets under management, types of clients, affiliates, disciplinary history and ownership. An adviser to private funds must also provide in Part 1A certain information regarding each private fund that it manages. Part 2A is a brochure containing detailed narrative information regarding the firm’s policies, practices, fees, personnel and conflicts of interest. Part 2B is a brochure supplement containing information regarding certain advisory personnel. Parts 1A and 2A are filed with the SEC and are publicly available. Parts 2A and 2B must be delivered to clients upon engagement and periodically thereafter.
Advisers that are registered (or required to register) with the SEC are subject to many substantive requirements of the Advisers Act. The Advisers Act and related SEC rules regulate, inter alia, terms of an advisory agreement, performance fees, client solicitation arrangements, political contributions, trading practices, advertising, recordkeeping, proxy voting, personal securities reporting and custody of client assets.7 A registered adviser must have written compliance policies and procedures reasonably designed to prevent violations of the Advisers Act, which must be administered by a chief compliance officer.8 The Advisers Act also imposes broad anti-fraud prohibitions, which extend to dealings with clients, prospective clients, and investors and prospective investors in private funds that are advised by the adviser.9 Additionally, the SEC may examine registered investment advisers for compliance with the Advisers Act, and has the power to bring enforcement actions for non-compliance with the Act, and to impose fines, suspensions and other penalties for violations.10
Depending on the type of advisory client and the nature of investments managed by the adviser, other regulatory schemes may apply to the adviser as well. For example, an adviser that uses certain derivative products in client portfolios will need to comply with the Commodity Exchange Act; an adviser that has certain types of retirement plan clients will need to comply with the Employee Retirement Income Security Act of 1974 (ERISA); and an adviser that advises a US-registered investment company will need to comply with the Investment Company Act of 1940 (Investment Company Act). These and other applicable regulatory schemes are discussed in more detail below.
III COMMON ASSET MANAGEMENT STRUCTURES
i Separately managed accounts (SMAs)
The most common structure for managing assets in the US is an SMA. In an SMA, the client’s assets are held by a custodian (typically hired by the client itself), and the adviser enters into an investment management agreement with the client to manage the assets. In this asset management structure, the client and the adviser will negotiate key terms, such as fees and investment objectives, strategies and restrictions. Unlike the funds described below, no corporate form is used to hold the assets, and no securities are issued.
ii Investment companies
Another common structure used to manage assets in the US is an investment company. Investment companies are generally structured as Massachusetts business trusts, Delaware statutory trusts or Maryland corporations,11 which issue shares to investors in the funds. While investment companies are typically created for retail investors, many funds are intended primarily for institutional investors, or offer separate share classes designed for institutional investors (such as pension funds). Investment companies are generally formed as open-ended funds (which issue redeemable securities and typically engage in a continuous offering), closed-ended funds (which issue non-redeemable securities, engage in a single offering or periodic offerings and typically list their shares for trading on an exchange) and exchange-traded funds (which offer and redeem shares in creation units (share increments of 25,000 or more) and have shares that trade on an exchange).12
Investment companies must register as such with the SEC under the Investment Company Act. An investment company registers with the same registration statement used to register its shares for public offering under the Securities Act of 1933 (Securities Act). A registered investment company is subject to the substantive provisions of the Investment Company Act, which requires, inter alia, a board of directors to govern the investment company (at least 40 per cent of which must be independent of the fund’s adviser and underwriter) and a written investment management agreement approved by the independent directors prior to execution and annually thereafter. Additionally, the Investment Company Act prohibits, with certain exceptions, transactions with affiliates and the issuance of senior securities (such as incurring debt or issuing preferred shares – which significantly constrains the ability of registered investment companies to employ various forms of portfolio leverage). In addition, certain matters must be approved by shareholders, including, with limited exceptions, new or amended investment management agreements, election of the board of directors and certain changes to investment restrictions.
If offered to the public, investment company shares must be registered with the SEC under the Securities Act.13 Registering shares under the Securities Act requires preparing and filing with the SEC a registration statement, which contains disclosure about, inter alia, the fund’s investment objectives, strategies, investment advisers, board of directors, investment restrictions, fees and expenses. A prospectus or summary prospectus, which forms a part of the registration statement, must be delivered to shareholders before, or concurrently with, the sale of shares of the investment company. Investment companies that engage in continuous offerings must update their registration statement annually (or sooner if certain material changes occur).
Investment companies must make periodic reports to their shareholders and follow the proxy solicitation rules adopted by the SEC under the Securities Exchange Act of 1934 (Exchange Act) when shareholder approvals are sought. The Exchange Act and the rules of relevant stock exchanges also impose additional requirements on investment companies with shares that trade on exchanges, such as certain governance requirements.
Because of the difficulties inherent in complying with the Investment Company Act and other US law, non-US investment companies rarely publicly offer their shares in the US.14
iii Private funds
Another structure commonly used to manage assets in the US is the private fund. Private funds typically rely on either Section 3(c)(1) (available to a fund with fewer than 100 investors) or Section 3(c)(7) (available to funds with investors that meet certain high wealth thresholds, known as qualified purchasers) of the Investment Company Act to be excluded from the definition of investment company. To qualify under Section 3(c)(1) or 3(c)(7), funds must not make a public offering of their securities.15 Private funds in the US are typically structured (usually under Delaware law) as limited partnerships or limited liability companies. Such funds may also be established in non-US jurisdictions, such as the Cayman Islands or Bermuda, to achieve tax efficiency for non-US or tax-exempt investors. Private funds may be either open-ended (the most common structure for a hedge fund) or closed-ended (the most common structure for real estate, private equity and venture capital funds). Most closed-ended private funds have a limited life (usually about 10 years) and, rather than requiring an upfront investment, require investors to commit capital that can be called from time to time by the fund.
IV MAIN SOURCES OF INVESTMENT
The United States mutual fund industry is the largest in the world, with a total of US$18.1 trillion in assets at the end of 2015.16 The largest source of investment into mutual funds is households, which invested an additional US$187 billion in 2015 in long-term registered investment companies.17
North America accounts for the largest amount of alternative assets, with Europe ranking second.18 The private equity market in North America is the largest in the world, raising approximately US$329 billion in aggregate capital in 2015.19 Public pension funds make up the largest percentage of limited partner commitments in private equity funds (60 per cent), followed by funds of funds (17 per cent) and endowments (3 per cent).20 Public pensions account for the largest percentage of limited partner commitments in venture capital funds (29 per cent), followed by funds of funds (19 per cent).21
At year-end 2015, US-based hedge fund managers managed approximately 75 per cent of global hedge fund assets.22 This percentage is down from 82 per cent at the beginning of the decade.23 US managers, in over 3,600 firms,24 manage approximately US$2.28 trillion of the aggregate total hedge fund industry capital.25 The largest investors in hedge funds include foundations (17 per cent), funds of hedge funds (24 per cent) and private sector pension funds (14 per cent).26
V KEY TRENDS
As noted above, in response to the financial crisis, Congress and regulators have adopted and proposed a number of reforms affecting the asset management industry. Seven of the most important changes are summarised below. Additionally, the SEC has recently announced areas of focus for its compliance examinations of registered investment advisers.
The Dodd-Frank Act includes substantial new requirements with respect to over-the-counter derivative transactions. The changes are largely designed to mitigate systemic risk by decreasing credit risk between parties to derivatives transactions and by increasing transparency in derivatives markets. Certain of the new requirements have become effective, but many other requirements have not yet been implemented, so the ultimate impact of these provisions remains unclear.
Some of the key requirements are as follows.
Certain interest rate swaps and credit default index swaps are required to be cleared through a central clearing house, and it is expected that some other types of derivatives transactions will become subject to this requirement in the future.
Central clearinghouses impose initial and variation margin requirements on cleared derivatives transactions, which can change at any time and which are often higher than existing margin requirements for uncleared derivatives transactions. In addition, the Commodity Futures Trading Commission and US bank regulators have adopted rules that will require minimum amounts of initial and variation margin for uncleared derivatives transactions, which are higher than the amount of margin currently posted by many market participants for their over-the-counter derivative transactions. Similar rules are expected to be adopted by the SEC. It is uncertain what effect these higher margin requirements will have on the liquidity of the derivatives markets. To prepare for the implementation of these rules, outstanding derivatives documentation will need to be revised to incorporate terms that comply with the new rules. Most asset managers are expected to be affected by the mandatory variation margin requirements beginning in 2017, and the mandatory initial margin requirements beginning in 2020.
Certain benchmark interest rate swaps and frequently traded credit default index swaps are required to be executed on a swap execution facility or exchange, rather than on a bilateral basis. It is expected that some other types of derivatives transactions will become subject to this requirement in the future. There is an exception from this requirement for block trades, which are trades sufficiently large to exceed thresholds established by the CFTC from time to time. To execute transactions on a swap execution facility, asset managers have to become a member of such swap execution facility and therefore become subject to its rules.
All over-the-counter derivatives transactions are (or will be) required to be reported to a swap data repository. The swap data repository makes the reported data available to various regulators, and makes certain of the reported data (not including the identity of the parties) available to the public. If one of the parties to a derivatives transaction is registered as a swap dealer and the other party is not, the swap dealer is the only party with the reporting obligation (regardless of whether the swap dealer is organised in the US).
Documentation and business conduct standards
Swap dealers are required to have swap trading relationship documentation (such as an International Swaps and Derivatives Association (ISDA) master agreement) in place with their derivatives counterparties before a derivatives transaction is executed, and are subject to rules regarding timely confirmation of trades and a requirement to conduct periodic portfolio reconciliation with their counterparties. Swap dealers have also generally been seeking substantial additional representations from their counterparties to comply with (and meet certain safe harbours under) business conduct standards. Many market participants have amended their derivatives documentation to comply with these requirements by adhering to market protocols prepared by ISDA.
The cybersecurity of investment funds and investment advisers has been an important focus of the SEC staff in recent years in light of cyber attacks on a wide range of financial services firms. In April 2014, the SEC’s Office of Compliance Inspections and Examinations (OCIE) announced a new cybersecurity examination initiative to test firms’ implementation of cybersecurity procedures and controls, with a focus on such matters as governance and risk assessment, access rights and controls, data loss prevention, vendor management, training and incident response.
Under Rule 30(a) of Regulation S-P (Privacy of Consumer Financial Information), every registered investment adviser is required to adopt policies and procedures reasonably designed to:
- a insure the security and confidentiality of customer records and information;
- b protect against any anticipated threats or hazards to the security or integrity of customer records and information; and
- c protect against unauthorised access to or use of customer records or information that could result in substantial harm or inconvenience to any customer.
The SEC has highlighted the need for investment advisers to review their operations and compliance programmes and assess whether they have measures in place that are designed to mitigate their exposure to cybersecurity risk. In 2015, then SEC Commissioner Luis Aguilar emphasised that the SEC continues to perceive cybersecurity as a serious and persistent threat, and that it will proactively examine how it can bring more cybersecurity enforcement actions using its existing authority.
Owing to this heightened concern, it has become increasingly important for advisers to adopt more advanced and up-to-date cybersecurity protections, and investments advisers and boards of investment funds are devoting increasing attention to this topic.
iii Money-market fund reform27
In response to well-publicised ‘races to the exit’ that occurred in 2008 as money-market fund investors sought to avoid sharing in losses such funds sustained in Lehman Brothers securities, in July 2014 the SEC adopted rules designed to reduce possible systematic risks that regulators believe money-market funds may present. Currently, money-market funds generally value their portfolio holdings using the amortised cost method, which results in a stable net asset value of US$1 per share (for purposes of shareholder purchases and redemptions) even in circumstances where the underlying portfolio holdings may be worth fractionally more or less than US$1.
Under the new rules, certain money-market funds will be prohibited, beginning in October 2016, from using amortised cost to value their investments and consequently will have a floating net asset value per share. The new rules provide for certain liquidity fees on redemptions and give the fund’s board of directors authority to suspend redemptions in certain circumstances. More stringent requirements relating to diversification, disclosure, stress-testing and reporting are also imposed.
iv The Jumpstart Our Business Startups Act (JOBS Act)
In 2012, Congress adopted the JOBS Act, which required, inter alia, that the SEC amend Regulation D (an exemption from registration under the Securities Act) to remove the prohibition on general solicitation or general advertising of certain offerings of securities to accredited investors (investors who satisfy certain financial thresholds). In 2013, the SEC amended Regulation D, and private funds may now use general solicitation or general advertising to offer and sell fund interests so long as the fund takes reasonable steps to verify that the purchasers are in fact accredited investors. It is unclear to what extent private funds will rely on the new rules, as verification procedures would need to be developed and general solicitations in the US might affect the fund’s ability to rely on private placement exemptions in non-US jurisdictions. In 2014, the CFTC issued exemptive relief from certain provisions in CFTC regulations, including Rule 4.13(a)(3) (see below), to permit commodity pool operators relying on these regulations to engage in general solicitation or general advertising in certain offerings under Regulation D.
v Department of Labor Fiduciary Rule
In April 2016, the Department of Labor (DOL) adopted a final rule regarding investment advice that subjects a wider group of advisers to fiduciary standards under ERISA. The rule assigns fiduciary status based on whether the advising party makes a ‘recommendation’ regarding an investment or investment management and receives direct or indirect fees as a result of dealing with a plan, plan participant or beneficiary, plan fiduciary, IRA or IRA owner. The determination whether a communication is a ‘recommendation’ is highly fact-dependent. The DOL also finalised the Best Interest Contract Exemption, which permits certain types of compensation that might otherwise create prohibited conflicts if investment advice fiduciaries meet a series of conditions aimed at ensuring that the advice they give will be in the retirement investor’s best interests. The rule will take effect on 10 April 2017 and is expected to have far-reaching consequences for the US asset management industry.
vi Volcker Rule
The Dodd-Frank Act amended the Bank Holding Company Act by adding a new Section 13, commonly known as the Volcker Rule, that curbs certain investment activities by banks and their affiliates. Simple in concept, the Volcker Rule is complex in practice. The Volcker Rule applies to ‘banking entities’, broadly defined to include banks, parents of banks, and subsidiaries and affiliates of either of them, as well as non-US banks with a US banking presence, along with their subsidiaries and affiliates. Such banking entities are prohibited from engaging in proprietary trading in securities, derivatives or certain other financial instruments, and from investing in, sponsoring or having certain relationships with certain private investment funds (covered funds), including hedge funds, private equity funds and certain commodity pools, subject to a number of exceptions. Banking entities that serve as sponsors, investment managers or investment advisers to covered funds are also prohibited from extending credit to such funds, subject to limited exceptions.
Final regulations to implement the Volcker Rule were adopted in December 2013, although many interpretive questions remain. The agencies responsible for enforcement from time to time address Frequently Asked Questions and post them on their websites. See, for example, www.federalreserve.gov/bankinforeg/volcker-rule/faq.htm.
Banking entities generally were required to conform their activities and investments to the requirements of the law and regulations no later than 21 July 2015, but, in the case of investments made before 2014, they have until 21 July 2017.
vii SEC examination priorities
In January 2016, the SEC published its 2016 examination priorities, which reflect topics that the SEC staff perceives to have heightened risk and to which the SEC’s National Examination Program expects to allocate significant resources throughout 2016. In the 2016 Exam Priorities, OCIE listed the following priorities that are worthy of note:
- a OCIE will continue its Retirement-Targeted Industry Reviews and Examinations Initiative, launched in June 2015, which focuses on the services offered by investment advisers and broker-dealers to retirement account investors;
- b OCIE will continue to examine broker-dealers’ and investment advisers’ cybersecurity compliance and controls;
- c reflecting the SEC’s concerns related to the changes in fixed-income markets over the past several years, OCIE will examine advisers to mutual funds, exchange-traded funds and private funds that have exposure to potentially illiquid fixed-income securities;
- d OCIE will review the suitability of sales of variable annuities to investors, as well as the adequacy of disclosure and the supervision of such sales; and
- e OCIE noted that it will be leveraging its capabilities in the area of data analytics in connection with several initiatives, including the detection of the promotion of new, complex, and high-risk products and related sales practice issues to identify potential suitability issues and potential breaches of fiduciary obligations.
viii SEC focus on systemic importance of the asset management industry
In December 2014, SEC Chair Mary Jo White announced a series of regulatory initiatives that were underway at the SEC, all focusing on the systemic importance of the asset management industry. The SEC made significant progress on several of these initiatives in 2015 and 2016, including the following:
- a a proposal in June 2015 for significantly enhanced reporting to the SEC of portfolio holdings information by registered investment companies;
- b a proposal in September 2015 to require registered open-ended investment companies to institute comprehensive liquidity risk management programmes;
- c a proposal in December 2015 to limit registered investment companies’ use of derivatives and requiring some of them to institute derivatives risk management programmes; and
- d a proposal in June 2016 to require registered investment advisers to adopt business continuity and transition plans addressing operational and other risks related to a significant disruption in the investment adviser’s operations, including the possible winding down of the adviser’s business or the transition of the business to others if the adviser is unable to continue providing services.
These proposals are subject to revision based on public comment prior to their final adoption by the SEC.
VI SECTORAL REGULATION
Insurance companies are regulated primarily by the states and therefore each state will have different laws regarding the management of insurance company assets. Although there is no comprehensive federal insurance regulatory scheme, many of the federal laws described above affect insurance company investments.
Assets of insurance companies are typically managed in general accounts or separate accounts. When an insurance company issues variable annuity or life insurance policies, the insurance company will segregate in a separate account assets to satisfy its obligations under the policies. Typically, separate accounts are organised as unit investment trusts (UITs), which in turn invest in an open-ended investment company that invests directly in securities. Separate accounts may also be organised as open-ended investment companies that invest directly in a portfolio of securities. Separate accounts holding assets from publicly offered variable annuity or variable life insurance products are considered investment companies under the Investment Company Act, and are subject to applicable Investment Company Act, Securities Act and related regulations.
Insurance company general account assets are managed on behalf of the insurance company (rather than for the benefit of a specified group of policyholders). If general account assets are managed by the insurance company itself, the general account is not considered a client of the insurance company for Advisers Act purposes (as the investment advice is not being provided to others).
The requirements of ERISA apply to the manager of a pooled investment vehicle or SMA if the underlying assets are treated as holding ‘plan assets’. If a benefit plan investor invests in a pooled investment vehicle or SMA, then unless an exception applies, the underlying assets of the fund are deemed to be plan assets for the purposes of ERISA. Benefit plan investors include most US private sector retirement plans (such as pension and 401(k) plans), Taft-Hartley (multi-employer) union pension plans and individual retirement accounts. Exceptions exist for funds that issue publicly offered securities, registered investment companies, venture capital operating companies and real estate operating companies (which exempts many private equity, venture capital and real estate funds), and funds in which benefit plan investors hold less than 25 per cent of each class of equity interest.
If the assets of a fund or account are treated as plan assets, then the manager must satisfy ERISA’s fiduciary standards. Under these standards, the manager must act solely in the interest of an investing plan’s participants, act prudently with respect to decisions affecting the plan, diversify the plan assets under its management (subject to the investment guidelines issued to it by the plan’s trustee), and act in accordance with the documents and instruments governing the plan. Additionally, the manager cannot receive more than reasonable compensation; must not engage in, or cause the client to engage in, non-exempt prohibited transactions (i.e., transactions with parties related to an investing plan, including other service providers for the plan, and self-dealing); and must be bonded under a fidelity bond. Finally, the manager must assist the investing plans in satisfying their reporting obligations, including disclosing its compensation for the services provided.
If an adviser is a qualified professional asset manager (QPAM) and satisfies certain conditions, certain of the rules regarding prohibited transactions are relaxed.28 For example, if the conditions for using the QPAM exemption are met, the prohibition on transactions with parties related to the plan applies only to those parties that have the ability to appoint or terminate the manager, parties that (together with their affiliates) account for more than 20 per cent of the manager’s total client assets under management and parties in interest that are a person related to the QPAM under complex common ownership rules. To qualify as a QPAM, the adviser, if not a bank or insurance company, must be registered under the Advisers Act, and generally must have more than US$85 million in assets under management and more than US$1 million in shareholder or partner equity.
Certain transactions are limited or prohibited for ERISA clients under the self-dealing rules, even if the adviser is a QPAM. These include certain incentive compensation arrangements, cross trading and use of an affiliated broker-dealer. However, conditional exemptions from these and other prohibitions are relied upon by many advisers.
If a fiduciary breaches its duties under ERISA, the fiduciary will be required to restore any losses to the plans and disgorge any profits resulting from the breach, and may be subject to certain penalties and taxes.
iii Real property
As the Advisers Act definition of investment advisers relates only to advice with respect to securities, advisers dealing in real estate are only required to register under the Advisers Act if they provide advice relating to securities in addition to real estate. However, as such advisers may advise on real estate-related securities (e.g., mezzanine loans, mortgage-backed securities or limited partner interests in partnerships that own real estate), many real estate advisers have registered as investment advisers.
Real estate advisers commonly provide investment advice to clients through SMAs (which may co-invest with the adviser or other clients, or with both, in real estate joint ventures), single asset or programme joint ventures, real estate investment trusts (REITs) and private funds.
Real estate private funds that may invest in securities often rely on Section 3(c)(5)(C) under the Investment Company Act for exclusion from the definition of investment company (available to funds primarily engaged in the business of purchasing or otherwise acquiring mortgages and other liens on and interests in real estate)29 and on Regulation D under the Securities Act.
REITs allow investors to make passive investments in real estate on a tax-advantaged basis. Qualification as a REIT is complex, and requires ongoing compliance with organisational, asset and income tests under the Internal Revenue Code. Requirements for a REIT to qualify for pass-through taxation include that a REIT must invest at least 75 per cent of its assets in real estate or qualifying assets; at least 90 per cent of a REIT’s annual taxable income must be distributed to shareholders as dividends; and a REIT must have at least 100 shareholders and cannot be closely held. REITs may be privately or publicly offered. Privately offered REITs are typically offered pursuant to Regulation D under the Securities Act. Publicly offered REITs are subject to the Securities Act and Exchange Act, including the reporting requirements for public companies. REITs that may invest in securities typically rely on Section 3(c)(5)(C) for an Investment Company Act exemption.
iv Hedge funds
A number of the key trends discussed above (e.g., derivatives regulation, cybersecurity risks, Commodity Exchange Act registration and the JOBS Act) directly affect hedge funds and their advisers. As previously noted, the Volcker Rule requires banking entities to limit substantially certain relationships they may have had with hedge funds.
Additionally, the SEC has also adopted Form PF, which requires detailed information about each hedge fund managed by a registered investment adviser. The form is filed periodically with the SEC on a confidential basis (either annually or quarterly, depending on the assets under management), and advisers must include extensive information regarding a fund’s strategy, investors, derivatives, leverage, investments, counterparties, turnover, exposures, risk metrics, financing and investor liquidity.
v Private equity
As with hedge funds, cybersecurity risks, the JOBS Act and the Volcker Rule will affect the operations of private equity funds and their advisers. Applying the Advisers Act, which is primarily designed for advisers managing publicly traded securities for retail investors, to private equity firms has proven to be complicated. As a result, private equity firms have been put in the position of internally resolving numerous interpretive issues without clear guidance from regulators.
In their examinations of, and public statements regarding, private equity firms, the SEC staff has focused on the valuation of private equity investments, allocation of fees and expenses between the adviser and the funds and the adviser and portfolio companies, and the allocation of co-investment opportunities. Additionally, the SEC staff has raised questions as to whether broker–dealer registration should be required in respect of certain common practices of private equity firms, including the marketing of private equity fund interests and the receipt by private equity firms of transaction-based compensation in connection with capital markets or merger and acquisition activity relating to portfolio companies.
Advisers to private equity funds must also file Form PF annually. Depending on the assets under management of the private equity firm, these filings must include information regarding each fund’s leverage, derivatives holdings, investors and portfolio companies.
vi Registration under the Commodity Exchange Act
Under the Commodity Exchange Act, the operator of a commodity pool (i.e., a fund that invests in at least one commodity contract) must register as a commodity pool operator (CPO),30 and an adviser providing advice with respect to commodity contracts must register as a commodity trading advisor (CTA) (in each case, absent an exemption from registration). Before the Dodd-Frank Act, commodity contracts subject to the Commodity Exchange Act included futures, options on futures, options on commodities and certain foreign exchange contracts. The Dodd-Frank Act amended the definition of commodity contract to encompass a much broader range of derivatives contracts, including interest rate derivatives, derivatives on a broad-based securities or credit index, other commodity derivatives and currency derivatives (other than deliverable currency forwards).
In addition, although not required by the Dodd-Frank Act, the CFTC amended its rules to eliminate a significant exemption from CPO registration (which permitted a fund to use commodity contracts without limit so long as certain investor sophistication and other requirements were met).31 As a result, the only remaining potential CPO registration exemption for most CPOs is Rule 4.13(a)(3), which provides an exemption only if all investors meet certain moderately low wealth standards, there is no public offering of fund interests32 and either:
- a no more than 5 per cent of the fund’s assets are used as initial margin or premiums for commodities contracts; or
- b the net notional value of the fund’s commodity contracts is less than 100 per cent of the fund’s net asset value.
Finally, it is worth noting that the CFTC takes the position that the operator of a fund (including a fund organised and operated outside the US) with one or more US investors is subject to CPO registration (or must find an exemption).
A registered CPO or CTA is subject to various reporting, disclosure and record-keeping requirements (which vary depending on the sophistication of the client or investors in the fund). Additionally, a registered CPO or CTA must become a member of the National Futures Association, a self-regulatory organisation, and is subject to examination by the National Futures Association or the CFTC.
vii Municipal advisers
On 20 September 2013, the SEC adopted rules33 to establish a permanent registration regime for municipal advisers. These rules implement provisions of the Dodd-Frank Act, which generally prohibit municipal advisers from soliciting or providing certain advice to municipal entities without first registering with the SEC. Municipal advisers include persons who provide advice to or on behalf of a municipal entity with respect to municipal financial products or the issuance of municipal securities, or undertake a solicitation of a municipal entity. ‘Municipal entities’ are US states, their political subdivisions and certain related entities. In general, SEC-registered investment advisers are excluded from the definition of municipal adviser to the extent that a registered investment adviser ‘is providing investment advice in such capacity’. Unregistered investment advisers may be considered municipal advisers if a municipal entity has invested the proceeds of an issuance of municipal securities in a fund or SMA managed by such adviser. Unregistered investment advisers to SMAs for municipal entities may also be considered municipal advisers if the account holds any swaps or securities-based swaps. Unregistered investment advisers have a due diligence requirement to determine whether a fund or account holds the proceeds of a municipal securities issuance. In October 2014, the SEC approved the first dedicated rule of the Municipal Securities Rulemaking Board (MSRB), MSRB Rule G-44, for municipal advisers regarding supervisory and compliance obligations along with related amendments to already existing rules on books and records to be maintained by brokers, dealers and municipal securities dealers.34 MSRB Rule G-44 primarily employs a principles-based approach to supervision and compliance, and is modelled after existing broker-dealer and investment adviser standards. Since then, the MSRB has adopted or amended restrictions on pay-to-play activities, standards of conduct, limitations on gifts, supervision requirements and professional qualification requirements.
VII TAX LAW
i Separately managed accounts
For US clients, net investment income generated by investments is generally taxed as ordinary income, although qualifying dividends are taxed to individuals at lower capital gains rates. Taxes on capital gains from the sale of securities will be determined by how long the client owned the investments that generated them. To the extent that US clients are taxed by non-US jurisdictions due to investments in non-US issuers (such as a foreign withholding tax), US tax credits may be available to such clients.
Non-US clients will be subject to withholding at a rate of 30 per cent on dividends from US sources, although the withholding may be reduced depending on the status of the investor (e.g., foreign governments are generally exempt), or the tax treaty between the US and the country of the non-US client. Interest income from US sources is generally exempt from US withholding for non-US non-bank investors that meet certain requirements (such as submitting a Form W-8BEN). Non-US clients will typically not need to file a US tax return as a result of investments in the US, except in limited circumstances, such as investments in United States real property interests (i.e., interests in real property, as well as the stock of any corporation that holds sufficient interests in US real property to be considered a United States real property holding company), or investments in pass-through entities with US trade or business activities.
ii Registered investment companies
An investment company that qualifies as a regulated investment company under Subchapter M of the Internal Revenue Code generally will not be subject to US federal income tax on its income and capital gains that it timely distributes to shareholders. To so qualify, the investment company generally must, inter alia:
- a derive at least 90 per cent of its gross income for each taxable year from certain proceeds derived with respect to its business of investing in stock, securities or currencies;
- b meet certain portfolio diversification tests; and
- c distribute with respect to each taxable year at least 90 per cent of the sum of its investment company taxable income (which includes short-term, but not long-term, gains) and any net tax-exempt interest income, for such year.
If an investment company were to fail to meet the income, diversification or distribution tests described above, and were ineligible to or did not cure such failures in the manner presented in the Internal Revenue Code, the investment company would be subject to tax on its taxable income and gains at corporate rates, and all distributions from earnings and profits would be taxable to shareholders as ordinary income.
Dividends received from an investment company, as well as any gains from the sale of fund shares, are generally subject to tax in the hands of shareholders subject to US federal income tax.35
Distributions of long-term capital gains (capital gain dividends) are generally not subject to US federal income tax withholding for non-US shareholders. Under current law, dividends other than capital gains dividends (including distributions of short-term capital gains) paid by a fund to a non-US shareholder generally are subject to withholding of US federal income tax at a rate of 30 per cent, or a lower applicable tax treaty rate, even if they are funded by income or gains that, if paid to a foreign person directly, would not be subject to withholding. A statutory exemption from withholding applies to certain of such dividends (generally, short-term capital gain and US-source interest). However, an investment company is not required to, and may not, report distributions as eligible for such statutory exemption, if available.
iii Private funds
Private funds in the US typically elect to be treated as a partnership for US federal income tax purposes.36 If the fund were not treated as a partnership, but as an association taxable as a corporation:
- a fund income or gains will be taxed, and losses trapped, at the fund level rather than being passed through to the partners of the fund;
- b distributions to investors in the fund would be treated as dividends; and
- c additional adverse tax, reporting and filing consequences could be triggered.
As a partnership for tax purposes, the fund itself generally does not pay US federal income tax. Income, gains, losses, deductions and credits of the fund will be allocated to the investors for US federal income tax purposes in accordance with the applicable governing documents.
In general, the US federal tax treatment of a non-US investor will depend on whether the fund is deemed to be engaged in a US trade or business. US-sourced income not effectively connected with a US trade or business may be subject to US withholding tax. If the fund were determined to be engaged in a US trade or business, either generally, or because the fund invests in turn in a pass-through entity (such as a partnership) so engaged, the investor’s distributive share of the fund’s income effectively connected with such trade or business would be subject to US federal income taxation (potentially including branch taxes in the case of corporate investors), some or all of which may be satisfied by withholding on each non-US investor’s distributive share of such income. Further, each non-US investor would be required to file a US federal income tax return reporting such income (and potentially all its other US-sourced income for the taxable year). In addition, any income from the disposition of a United States real property interest held directly or indirectly by the fund would be treated as income effectively connected with a US trade or business. Accordingly, such income would be subject to US taxation and withholding, and each non-US investor would be required to file a US federal income tax return reporting its distributive share of such income.
iv Foreign Account Tax Compliance Act (FATCA)
FATCA, as codified in Sections 1471–1474 of the Internal Revenue Code and the US Treasury and Internal Revenue Service guidance issued thereunder (collectively, FATCA) establishes an information reporting regime designed to identify US persons holding assets through offshore entities and overseas accounts. Subject to certain exceptions, non-compliance with FATCA’s reporting and diligence requirements generally leads to a 30 per cent withholding tax on certain entities with respect to certain US-sourced income (including, among other types of income, dividends and interest) and gross proceeds from the sale or other disposition of property that can produce US-sourced interest or dividends (together, a withholdable payment). In addition, withholding under FATCA potentially may apply in the future on certain payments of non-US sourced income (pass-through payments). The FATCA withholding tax is currently in effect with respect to withholdable payments, except for payments with respect to gross proceeds. Withholding on payments with respect to gross proceeds is set to begin on 1 January 2017, however, recent Treasury guidance indicates that this date will be extended until on or after 1 January 2019.
Since the enactment of FATCA, the US Treasury has signed various intergovernmental agreements (IGAs) with foreign jurisdictions in order to help implement FATCA’s requirements abroad. The objective of the IGAs is to gather the same information regarding US accounts as is required under the FATCA regulations, while resolving local law conflicts and reducing burdens for IGA-country financial institutions. Additionally, FATCA’s implementation has spurred on the development of other tax information reporting regimes, such as a regime similar to FATCA in the United Kingdom, and the Common Reporting Standard, an initiative developed by the Organisation for Economic Co-operation and Development aimed at global tax transparency.
The effects of the changes in regulation described above are not yet completely known. As a result, there are still many questions that will be answered in time, including:
- a how the derivatives markets will adjust to new regulation;
- b how banks will respond to the new regulations; and
- c how changes in money-market fund regulation will affect their operation.
Finally, and perhaps most importantly, it remains to be seen whether the new regulations will, in fact, improve the functioning of the markets, better protect investors and help prevent another financial meltdown, or whether they will only increase transaction and compliance costs and create barriers to entry into the asset management business.
1 Jason E Brown, Leigh R Fraser and John M Loder are partners at Ropes & Gray LLP. The authors wish to thank Richard E Gordet, William D Jewett, Susan A Johnston, Mark V Nuccio and Hannah Glass, all of Ropes & Gray LLP, for their assistance in the preparation of this chapter.
2 Certain parties providing investment advice, such as banks, lawyers and broker-dealers, are exempt under certain circumstances from the definition. Although there are other activities that constitute acting as an investment adviser (e.g., publishing reports on securities), this chapter will focus on advisers providing investment advice directly by managing securities portfolios for clients.
3 The SEC is the regulatory agency that implements and enforces the various US federal securities laws.
4 See Advisers Act Rules 202(a)(11)(G)-1, 202(a)(30)-1, 203(l)-1 and 203(m)-1.
5 As described in more detail below in Section III, infra, a private fund is a fund relying on Section 3(c)(1) or 3(c)(7) of the Investment Company Act of 1940 (i.e., funds sold in a private offering to a limited number of investors or exclusively to certain types of sophisticated investors).
6 A fourth part (Part 1B) must be completed by state registrants only.
7 See Advisers Act Section 205, Rule 205-3, Rule 206(4)-3, Rule 206(4)-5, Section 206, Rule 206(4)-1, Rule 204-2, Rule 206(4)-6, Rule 204A-1 and Rule 206(4)-2, respectively, and related SEC guidance.
8 See Advisers Act Rule 206(4)-7.
9 See Advisers Act Section 206 and Rule 206(4)-8.
10 See Advisers Act Section 203.
11 These states have regimes that are advantageous for investment companies (e.g., exempting an investment company from the requirement to hold an annual shareholders’ meeting).
12 There are other forms of pooled investment vehicles subject to certain specialised provisions of the Investment Company Act, such as unit investment trusts, face amount certificate companies and business development companies.
13 A small percentage of registered investment companies offer their shares only in a private offering, and, therefore, do not register their shares under the Securities Act.
14 For example, non-US investment companies must apply to the SEC for special permission to register as an investment company or publicly offer their shares.
15 If there is no public offering under the Securities Act, the proxy rules and certain other provisions of the Exchange Act do not apply to the private fund (provided that the number of investors remains below certain numerical thresholds). State securities law might still apply, although for most private offerings, only state notice filings (at most) are required.
16 Investment Company Institute, 2016 Investment Company Fact Book (56th ed. 2016).
17 Id. at p. 12: ‘[R]egistered investment companies managed 24 percent of household financial assets at year-end 2015.’
18 Towers Watson, Global Alternatives Survey 2016 15 (July 2016).
19 Preqin Investor Network, 2016 Preqin Global Private Equity Report, p. 25 (2016).
20 PitchBook Data, Inc. While these numbers are global data, based on our experience, we would expect a similar breakdown for investors in US private equity funds.
21 Id. While these numbers are global data, based on our experience, we would expect a similar breakdown for investors in US venture capital funds.
22 Preqin, 2016 Preqin Global Hedge Fund Report, p. 37 (2016).
23 TheCityUK, Hedge Funds 3 (2013).
24 Preqin, Hedge Fund Analyst – Fund Information (Preqin Ltd 2016).
25 Preqin, 2016 Preqin Global Hedge Fund Report, p. 37 (2016).
26 Id at p. 62. While these numbers are based on global data, based on our experience, we would expect a similar breakdown for investors in US hedge funds.
27 US-registered money-market funds held approximately US$2.88 trillion in assets at year-end 2015. See Investment Company Institute, 2016 Investment Company Fact Book (56th ed. 2016).
28 This exemption is relied upon by most large managers of plan assets.
29 Institutional real estate private funds typically also qualify under Section 3(c)(7) of the Investment Company Act for exclusion from the definition of investment company.
30 The CPO is typically the general partner of a private fund or the adviser of an investment company.
31 There are various CTA registration exemptions as well, although these have not been materially changed recently (with the exception of various CTA exemption tests amended to reflect the broader definition of commodity contracts).
32 As discussed above, the CFTC has issued exemptive relief to CPOs from the public offering restriction with respect to certain offerings made under Regulation D.
33 See Exchange Act Rules 15Ba1-1–15Ba1-8.
34 See MSRB Rules G-8 and G-9.
35 Very generally, distributions of investment income and net short-term capital gains are taxed at ordinary income rates. Distributions of net long-term capital gains and, so long as the fund and the US shareholder meet certain requirements, dividends constituting ‘qualified dividend income’, are taxed at the lower rates applicable to long-term capital gains.
36 In some cases, tax-exempt investors invest through a corporation to prevent certain disadvantageous tax attributes from applying to investments.