June 29, 2016

SEC Proposes Rule Requiring Investment Advisers to have Business Continuity and Transition Plans

On June 28, 2016, the SEC released a rule proposal that would require registered investment advisers to adopt and implement written business continuity and transition plans detailing the adviser’s policies and procedures in case of significant disruptions to, or discontinuation of, the adviser’s operations, with the purpose of minimizing client and investor harm.

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June 29, 2016

SEC Issues Updated Guidance on Business Continuity Planning for Registered Investment Companies

In a guidance update issued on June 28, 2016, the staff of the Division of Investment Management (the “Division”) of the Securities and Exchange Commission outlined certain issues that fund complexes should consider when formulating business continuity plans (“BCPs”) as they relate to critical service providers. The Division stressed that Fund complexes increasingly rely on affiliates and third parties to perform critical functions, and thus need to understand the business continuity and disaster recovery protocols of such service providers. Additionally, fund complexes should determine how their own BCPs address the risk that a critical service provider could suffer a significant business disruption.

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June 29, 2016

SEC Chair White Urges Fund Boards to be Proactive Risk Monitors

In a keynote address at the Mutual Fund Directors Forum 2016 Policy Conference, Chair White discussed the evolution of the asset management industry, and noted that the role of mutual fund directors is evolving and should continue to evolve with the industry. Just as the SEC is recalibrating its regulatory program, Chair White said, fund directors also must adjust to growing responsibilities to ensure that funds are “fully addressing current and potential future risks.”

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June 27, 2016

SEC Chair Testifies before Congress on Upcoming Asset Management Rules

Testifying before the U.S. Senate Committee on Banking, Housing, and Urban Affairs (the “Committee”) on June 14, 2016, Securities and Exchange Commission (“SEC”) Chair Mary Jo White spoke to the “Oversight of the [SEC]” and the current work and initiatives underway at the agency, providing insight into the timing of major regulatory initiatives affecting the investment management industry.

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June 22, 2016

SEC Issues No-Action Relief on Auditor Independence Requirements

The SEC has provided relief from Rule 2-01 of Regulation S-X, confirming that it would not recommend enforcement action against an entity within the "investment company complex" of which the Fidelity Funds are a part (a "Fidelity Entity"), if that Fidelity Entity continues to fulfill its regulatory requirements under the federal securities laws by using the audit services performed by a registered public accounting firm, where that firm has relationships that would cause non-compliance with Rule 2-0l(c)(l)(ii)(A) of Regulation S-X (the "Loan Provision"), subject to certain conditions.

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June 21, 2016

SEC Sanctions Investment Adviser for Failing to Establish and Maintain Policies and Procedures to Prevent the Misuse of Material Nonpublic Information

On May 27, 2016, the SEC sanctioned an investment adviser (the "Adviser") for failing to establish and maintain policies and procedures reasonably designed to prevent the misuse of material nonpublic information.1 Specifically, the Adviser failed to adopt and implement policies and procedures for identifying outside consultants who, based on their functional roles and access to confidential information regarding the Adviser's transactions, should be subject to the Adviser's policies and procedures, including its code of ethics.

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June 17, 2016

SEC Issues Order to Increase the Net Worth Threshold for “Qualified Clients”

On June 14, 2016, the SEC approved an adjustment for inflation of the dollar amount tests in Rule 205-3 under the Investment Advisers Act of 1940 pertaining to a “Qualified Client”.  An investment adviser registered with the SEC is generally prohibited from entering into an investment advisory contract with a client that provides for performance-based compensation, unless the client is a "qualified client."  Under the Order, a "qualified client" is one that has at least $1 million under the management of the investment adviser or has a net worth of more than $2.1 million.  The Order is effective as of August 15, 2016.

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June 16, 2016

Administrator to Private Funds Settles SEC Charges of “Gatekeeper” Violations

The SEC announced today that Apex Fund Services (US), Inc. (“Apex”), a fund administrator that provided accounting and administrative services to four private funds managed by ClearPath Wealth Management, LLC (“ClearPath”) and two private funds managed by EquityStar Capital Management, LLC (“EquityStar”) agreed to pay more than $350,000 to settle charges brought by the SEC after it determined that Apex had, in the course of its administrative and fund accounting duties, committed a series of failures and was a cause of Advisers Act violations committed by ClearPath and EquityStar.

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June 8, 2016

SEC Settlement with Morgan Stanley

Morgan Stanley Smith Barney LLC (“Morgan Stanley”), a registered broker-dealer and investment adviser, agreed to pay $1 million to settle administrative proceedings brought by the SEC after it found that, in violation of Regulation S-P, Morgan Stanley failed to adopt written policies and procedures reasonably designed to protect customer records and information. Although Morgan Stanley had established certain policies and restrictions regarding its employees’ access to, and use of, confidential customer data, and implemented certain technology controls designed to prevent employees from copying data onto removable storage devices and from accessing certain websites, the SEC found that the firm failed to ensure that its policies and procedures were reasonably designed and properly operated.

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June 8, 2016

SEC Announces Intent to Increase Net Worth Threshold for “Qualified Clients”

Pursuant to section 205 of the Investment Advisers Act of 1940 (the "Advisers Act"), an investment adviser registered with the Securities and Exchange Commission (the "SEC") is generally prohibited from entering into an investment advisory contract with a client that provides for performance-based compensation, unless the client is a "qualified client."  Currently, a "qualified client" is, among other things, one that has at least $1 million under management with the adviser or a net worth of more than $2 million (excluding the value of the client's primary residence).

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