SEC Final Interpretation of IA Standard of Conduct

SRZ private funds regulatory update

Marc E. Elovitz, Brian T. Daly, Anna Maleva-Otto and Brad L. Caswell, Schulte Roth & Zabel LLP

The US Securities and Exchange Commission has, for some time, been reviewing the standard of conduct required of investment advisers and broker-dealers under the federal securities laws. On June 5, 2019, these various initiatives concluded with the publication of four final items of guidance:

• Commission Interpretation Regarding the Standard of Conduct for Investment Advisers (“Fiduciary Interpretation”);
• Form CRS Relationship Summary; Amendments to Form ADV (“Form CRS Release”);
• Regulation Best Interest; and
• Commission Interpretation Regarding the Solely Incidental Prong of the Broker-Dealer Exclusion from the Definition of Investment Adviser (“Solely Incidental Interpretation”)

Fiduciary Interpretation

The Fiduciary Interpretation is the most important of the four items for private fund advisers. In the proposing release, the SEC indicated that it was considering certain positions that would treat advisory clients and investors the same, regardless of their sophistication. For example, the SEC proposal stated that “disclosure of a conflict alone is not always sufficient to satisfy the adviser’s duty of loyalty and section 206 of the Advisers Act,” and consent would not be effective where “the material facts concerning the conflict could not be fully and fairly disclosed.”

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