COMPLIANCE ALERTS

SEC Marketing and Examination Guidance and Extension of Massachusetts Identity Theft Prevention Regulations - November 2008

State Privacy Rules and Part II of Form ADV - November 2008

Regulatory Focus On Securities Lending - November 2008

Short Selling Filing Requirements, Prohibitions and Frequently Asked Questions - September 2008

SEC's New and Proposed Short Selling Initiatives - September 2008

OCIE and Other Regulators Sent Into Action to Review Rumors - July 2008

Has the New Nationwide SEC Document Request List Arrived? - July 2008

SEC “Springing” Into Action on Several Fronts - March 2008

New Comprehensive SEC Document Request List - August 2007

New York Regional Office Examination Staff Interviews on the Rise - May 2007

SEC Staff Cautions Firms to Beware of Imposters - May 2007

Soft Dollar Reminder – December 2006

SEC Announces Proposals Impacting Hedge Funds – December 2006

Associate Regional Director in the SEC’s Northeast Regional Office Discusses Exam Program Changes – December 2006

SEC Increases Scrutiny of Insider Trading at Hedge Funds – October 2006

AIMA Issues Guidance on Side Letter Disclosures – October 2006

SEC Marketing and Examination Guidance and Extension of Massachusetts Identity Theft Prevention Regulations

Late last week the SEC released a pair of documents with guidance that provides advisers with more flexibility related to the content of marketing materials and provides a further glimpse into the types of documents that its examination teams will review during the routine examination process. Additionally, Massachusetts extended the deadline for compliance with standards for how advisers must protect and store clients’ personal information.

Including Positions in Marketing Materials that Contribute to the Performance of a Strategy

On November 7, 2008, the SEC’s Division of Investment Management (“IM”) issued a no-action letter to the TCW Group (“TCW Letter”, refer to TCWLetter) that permits the presentation in marketing materials of positions that significantly contributed to the positive and negative performance of an investment strategy over a measurement period. The conditions under which IM granted the no-action relief as well as other key points addressed in the TCW Letter include the following:

At least 5 positive and 5 negative holdings - the marketing material must show no fewer than 10 holdings, including an equal number of the most positive and most negative holdings that contributed to the performance results of the investment strategy over the measurement period;
Weighting the returns - the contribution analysis must take into account the weighting of every holding in the investment strategy over the measurement period in order to determine the most positive and most negative holdings (i.e., a holding that returned 100% but that constituted only 1% of the strategy would have less impact on the strategy’s performance than a holding that returned 10% but constituted 20% of the strategy);
Consistency of presentations – the presentation of information and the number of holdings must be consistent across measurement periods;
Selection of representative account – the adviser may select a representative account from which the holdings may be analyzed to calculate the most positive and most negative contributors to the investment strategy’s performance. The selection of the representative account must be completed in compliance with federal securities laws;
Disclosures - the presentation must disclose: (i) how to obtain the methodology of the return contribution analysis; (ii) how to obtain a list showing every holding’s contribution to the overall performance during the measurement period; (iii) that the holdings identified do not represent all of the securities purchased, sold, or recommended for advisory clients; and (iv) that past performance does not guarantee future results;
Preventing a misleading presentation – the presentation must include all information necessary to not make it misleading, including presenting the best- and worst-performing holdings on the same page with equal prominence, and with appropriate disclosure as discussed above, in close proximity to the performance information;
Required books and records to substantiate the presentation and return methodology – books and records must be kept related to: (1) the criteria used to select the specific securities listed in each presentation (i.e., the performance contribution calculation); (2) a list showing the contribution of each holding in the strategy to the overall performance of the strategy during the measurement period; and (3) all supporting data necessary to demonstrate the calculation of the presentation’s contribution analysis and to demonstrate the appropriateness of the holdings included in each presentation.
Who may receive a presentation of the performance contribution analysis? - the TCW Letter permits advisers to provide the performance contribution presentation to prospective clients and consultants who do not specifically request the information, and to current clients who are not invested currently in the investment strategy included in the presentation.

Release of the New Model Examination Document Request List

On November 13, 2008, the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) released its long-awaited model core initial document request list (the “List”, refer to SECModelCoreDocumentRequestList). If you are a long-time recipient of ACA’s Compliance Alerts, the List should come as no surprise. Below is an outline of the sections of the List:

General information about the adviser
Information regarding the adviser’s compliance program, risk management and internal controls

Compliance procedures and types of tests performed
Risk identification practices
Internal audit review schedules
Remote office/sub-adviser oversight
Client complaints
Non-compliance with code of ethics
Valuation
Information processing, reporting and protection

Information to facilitate OCIE’s testing of adviser’s trading activities

Trade blotter review
Information regarding advisory clients
Portfolio management issues
Brokerage issues
Conflicts of interests and/or insider trading

Information to facilitate OCIE’s testing for compliance in various areas

Performance advertising and/or marketing
Financial records
Custody
Anti-Money Laundering

While our review of the List revealed few controversial or ground-breaking requests, ACA notes the following:

Applicability to traditional money managers - the List is for an adviser that provides only traditional money management services to non-fund clients. If an adviser's business has other features, the information initially requested will include both the core set of information described above and additional information that will allow the OCIE examination staff to evaluate compliance activities for these additional activities and relationships (e.g., sponsoring a family of registered investment companies, sponsoring one or more privately offered funds, participating in PIPES offerings, participating in a separately managed account (wrap-fee) program, being also registered as a broker-dealer and being a manager of managers);
Expect additional document request lists - the List will likely be supplemented by numerous other document requests during a review, including documents that may or may not be required by the Advisers Act books and records rule; and
List may vary based on SEC office - ACA expects that the SEC’s regional offices will tailor the List to more adequately address its registrant population; therefore, do not expect the initial document request list that your firm receives to be identical to the List.

Extension of Compliance with Massachusetts Privacy Regulations

On November 14, 2008, the Massachusetts Office of Consumer Affairs and Business Regulation extended the deadline to May 1, 2009 for firms to:

implement written identity theft prevention programs;
ensure that third-party services providers are capable of protecting personal information and contractually binding them to do so (note that the deadline for requiring written certification from third-party providers has been extended to January 1, 2010); and
ensure the encryption of laptops and other portable devices.

ACA notes that the original compliance deadline was January 1, 2009. Refer to MassachusettsPrivacyExtension for the full text of the release.

Please do not hesitate to contact your ACA compliance consultant or ACA’s Washington DC office at (202) 955-5800 if you have any questions related to these issues.

State Privacy Rules and Part II of Form ADV

Now that the election-mania is finally over, we wanted to fill the void with some important regulatory updates.

Less than 60 days to Effective Date for Massachusetts Privacy Laws

We remind you that as of January 1, 2009, all persons that own, license, store or maintain “personal information” about a resident of Massachusetts will be required to develop, implement, maintain and monitor a comprehensive, written information security program applicable to any records containing such personal information. In addition, all persons who electronically store or transmit such information must include provisions for the establishment and maintenance of a security system covering its computers, including any wireless systems. It is important to note that the state of Massachusetts has provided specific minimum requirements for both the written information security program as well as the electronic security system covering its electronic records. For a complete listing of these requirements please refer to 201 CMR 17.00.

Finally, compliance professionals should be aware that other state regulatory authorities have amended and enhanced their privacy laws (e.g., Nevada) and that ACA expects more states to follow with similar amendments.

Part II of Form ADV Revisions

SEC Chairman Christopher Cox recently indicated in an October 27 letter to the Investment Adviser Association (IAA) that “The tentative schedule for consideration of final amendments to Form ADV, Part 2, is early December 2008”. The letter responded to the IAA’s request for the SEC to finalize the proposed amendments to the Part II of Form ADV that were released on March 3, 2008 (IA-2711). Chairman Cox noted in his letter that the SEC received approximately 80 comment letters on the proposed amendments. Given the December 2008 timeframe noted by Chairman Cox, ACA would expect mandatory compliance with the final amendments to be required not less than 6 months following the final rule release, or in mid-year 2009.

Revisions to Form D Filings

For those advisers that manage private funds, we remind you that we are currently in a phase-in period (that started September 15, 2008) during which electronic filings of Form D are voluntary, until March 16, 2009 when electronic filings of Form D become mandatory. A summary of the most notable changes to the Form D is as follows:

Filing of the Form D is required in the standard eXtensible Markup Language (XML) format that is currently being implemented for other electronic filings;
Requiring more specific information on the registration exemption claimed by the issuer in the Form D notice as well information on any exclusion claimed from the definition of “investment company” under the Investment Company Act of 1940;
Replacing the current requirement to disclose information on a wide variety of expenses and applications of proceeds with a requirement to report expenses only as to amounts paid for sales commissions and, separately stated, finders’ fees, and report use of proceeds only as to the amount of proceeds used to make payments to executive officers, directors and promoters; and
Permitting a limited amount of free writing in “clarification” fields to the extent necessary to clarify certain information provided.

Please do not hesitate to contact your ACA compliance consultant if you have any questions related to these issues.

Regulatory Focus On Securities Lending

The unprecedented market turmoil and credit crisis continues to have a significant impact on the financial services industry, including both traditional investment advisers and hedge funds managers. In particular, the securities lending industry is in a state of flux as several mutual fund groups and hedge funds have ended their lending program or stopped the issuance of new loans (See Securities-Lending Sector Feels Credit-Crisis Squeeze, Wall Street Journal, October 30, 2008).

Securities Lending Risks and Considerations

The risks associated with a firm's securities lending program appear to be on the rise due to issues such as: (1) cash collateral programs taking large losses on subprime investments, (2) the increased potential for counterparty default, and (3) recent regulations imposed on short selling which has reduced the supply of securities available for lending. Accordingly, we believe that it will become increasingly important for compliance professionals to consider the following with regard to a firm's securities lending program:

Re-evaluating counterparty risk on a more frequent basis. Many firms review the creditworthiness of their counterparties on an annual or semi-annual basis. In today's market, that may not be frequent enough. Counterparty exposure should be measured at various levels: out on loan, collateral reinvestment, the portfolio's direct investments particularly in derivative or complex instruments and non-DVP transactions. An adviser should review its firm's exposure to a particular counterparty on an aggregate basis in addition to any such reviews that may be conducted by a firm on a portfolio by portfolio (or client by client) basis.
Periodic reviews of portfolio holdings in cash collateral vehicles. A firm's senior executives and investment personnel should be asking themselves tougher questions regarding its securities lending program's invested collateral. How are current market conditions impacting the risk/return profile of invested collateral? Are there any credit issues related to recent downgrades? What valuation issues, if any, are arising with respect to the invested collateral? Recent industry news indicates increased concern with "breaking the buck," and restrictions being implemented on investor redemptions. Staying current with potential issues in the portfolio and self-evaluation of the holdings in the cash collateral vehicle may provide lead time in remedying a potential situation.
Increased monitoring of sell fails. As the rate of default by borrowers increases, advisers need to be wary of potential sell fails. They must stay diligent in ensuring that the lending agent or prime broker/custodian monitors the borrower to return the securities. Advisers, particularly those providing investment advice to registered mutual funds, should be monitoring the amount of time that its securities are out on loan. In general, the probability of a sell fail is correlated to the length of time that a security has been out on loan (securities out on loan for longer periods of time are more likely to be susceptible to sell fails). A compliance officer should review and evaluate a firm's sell fails for potential trends, such as whether a single borrower has continuously failed to deliver. This may lead to discussions with the lending agent in excluding said broker from borrowing in the future.
Evaluation of loan limits. Advisers, and particularly mutual funds, should evaluate their current lending limitation on a security. Decreasing the percentage of how much can be loaned to any one borrower, or on a security by security basis, could alleviate the counterparty and sell fail risks while allowing the firm to continue to effect an active lending program.
Improving disclosure to investors. Fund Boards and advisers may consider disclosing risks associated with participating in securities lending programs such as the potential for delays in the recovery of loaned securities and the impact on the portfolio should the borrower default. Another disclosure may address restrictions on the redemptions of assets, and the possibility of providing redemptions in-kind, both of which may have an impact on the adviser's ability to manage the account in accordance with the fund's investment objectives.

Short Selling Filing Requirements, Prohibitions and Frequently Asked Questions

On September 19, 2008, the SEC issued two emergency orders that directly affect institutional investment managers that engage in short selling activities.

Prohibition on Short Selling Financial Stocks

The SEC issued an emergency order pursuant to Section 12(k)(2) of the Securities Exchange Act of 1934 that prohibits the short selling of roughly 800 financial stocks set forth in Appendix A of the emergency order at http://www.sec.gov/rules/other/2008/34-58592.pdf.

Mandatory Filing of Short Selling Activity on Form SH

The SEC issued an emergency order pursuant to Section 12(k)(2) of the Securities Exchange Act of 1934 that requires all institutional investment managers that are currently required to file Form 13F as of June 30, 2008 to file new Form SH with the SEC on the first business day of every calendar week immediately following a week in which the manager effected short sales. Form SH must be filed electronically on the EDGAR system and the filing will become publicly available once submitted. ACA notes that the Form SH is similar in format to the Form 13F and includes the following 8 data fields:

Name of issuer
CUSIP
Short Position (Start of Day)
Number of Securities Sold Short (Day)
Value of Securities Sold Short (Day)
Short Position (End of Day)
Largest Intra-Day Short Position
Time of Day of Largest Intra-Day Short Position

The preceding data must report a manager’s short selling activities each day, and similar to Form 13F, in order to prevent duplicative reporting, managers must indicate whether they are reporting for other managers on the Form SH (i.e., by virtue of filing a “notice”, “entries” or “combination” report).

ACA further notes that managers will not be required to report short positions if:

The short position constitutes less than .25% of the class of the issuer’s issued and outstanding securities; and
The fair market value of the short position is less than $1,000,000.

No filing will be required when no short sales of a section 13(f) security have been effected since the previous filing of a Form SH, and the filing requirement only applies to short sales effected on or after September 22, 2008. The first Form SH must be filed on September 29, 2008 (based on the manager’s short selling activities during the week of September 22, 2008) and will be the only required Form SH filing unless the SEC extends the emergency order beyond the current October 2, 2008 termination date.

If you would like assistance with the completion and submission of Form SH, please contact your ACA consultant or 13F/13G filings contact for additional information and refer to http://www.sec.gov/rules/other/2008/34-58591.pdf for a copy of the emergency order. Additionally, a copy of the Form SH is available at http://www.sec.gov/about/forms/formsh.pdf and the instructions to the Form SH are available at http://www.sec.gov/about/forms/formsh_instructions.pdf.

Frequently Asked Questions on Short Selling and Form SH

Below are a few of the more frequently asked questions, and our responses to those questions, that we have been fielding from clients this morning. Additionally, the SEC is said to be working on a Form SH FAQ that will likely be released in the upcoming days.

Does the prohibition on shorting financial stocks require us to unwind pre-existing short positions in the financial stocks listed in Appendix A of the SEC’s Order?

No. A manager is not required to unwind pre-existing short positions on the financial stocks listed in Appendix A of the SEC’s Order.
What if a manger holds a short position now and through a reporting period (e.g., 9/22 thru 9/28) but has no activity in this investment (i.e., does not add to it or cover any), then is there a reporting obligation on Form SH?

No. As noted in the instructions to Form SH, the Short Position (Start of Day) for Monday, September 22, 2008 shall be zero. Only short positions put-on, or added-to on or after September 22, 2008 require reporting on Form SH for the September 22, 2008 through September 28, 2008 reporting period.
If we buy to cover a short position that was entered into prior to September 22, 2008 does that require reporting?

No. The reporting of short positions begins on Monday, September 22, 2008. No pre-existing short-positions entered into prior to September 22, 2008 are required to be reported on Form SH.
Should a manager report swap positions on Form SH if the swaps provide them with a synthetic short against a company?

No. Swap positions are not 13F securities.
Can a manager buy ETFs (e.g., SKF) that are short the financial sector? If so, are these also reportable?

Yes. A manager can go short the financial sector via ETF to the extent that option is available (See http://biz.yahoo.com/bw/080919/20080919005500.html?.v=1 for announcement from ProShares on the suspension of subscriptions to SEF and SKF until further notice).

It should be noted that certain ETFs are reportable on Form 13F. Thus, for example, a manager’s acquisition of an ETF such as SEF or SKF would not be reportable on Form SH; however, they would still be reportable on the manager’s next Form 13F filing to the extent such investment was still held at the end of the 13(f) reporting period.
Since the SEC does not require registered investment advisers to time stamp its order tickets, what happens if a manager is unable to report the time of day for its “largest intra-day short position” (Column 8 on Form SH)?

The emergency order does not provide for any exception related to the completion of Column 8; therefore, investment advisers should be prepared to track this information for reporting in Column 8.
If my firm manage less than $100 million in 13(f) securities, but we happen to have billions of dollars in short positions, are we required to file Form SH?

No. The instructions to Form SH state that “…every Manager that exercises investment discretion with respect to accounts holding section 13(f) securities…who has filed or was required to file a Form 13F for the calendar quarter ended June 30, 2008, must file a report on Form SH with the Commission to report certain information about short sales and short positions” [Emphasis Added]
If we are not required to file Form 13F in 2008 because we did not go over the 13(f) threshold during any quarter in 2007, yet we now manage more than $100 million in 13(f) securities, are we required to file Form SH?

No. As noted in the instructions to Form SH, you are only required to report short positions and transactions if you have filed or were required to file a Form 13F for the calendar quarter ended June 30th 2008.
Can we buy puts on the underlying stocks noted in the Order and, if so, would those positions and transactions be reportable?

The order does not prohibit the purchase of puts on the underlying stocks noted in Appendix A of the order prohibiting the short selling of financial stocks. Neither the purchase of the puts nor the writing of options are required to be reported on Form SH.
Is the SEC likely to continue requiring the filing of Form SH beyond October 2, 2008?

The wording of the order, the Form SH and the instructions to the Form SH certainly makes continued filings an option; however, ACA is uncertain as to the SEC’s desire to collect such information in periods of relative calm in the financial markets.

We will continue to closely monitor these and other developments that may occur as a result of this extraordinary time in the financial markets. Please do not hesitate to contact your ACA compliance consultant if you have any questions related to these issues.

SEC's New and Proposed Short Selling Initiatives

SEC’s New Short Selling Rules

As many of you are aware, the SEC’s new emergency short selling rules went into effect today in response to regulatory concerns about possible market manipulation “based on unfounded rumors regarding the stability of financial institutions and other issuers.” It is believed that the extreme volatility in the market is being exacerbated, at least in part, by “naked” short sellers and that without this action securities may continue to experience “sudden and excessive” price fluctuations that could threaten fair and orderly markets. Among other things, the new rules include a “naked” short selling antifraud rule and enhanced delivery requirements on sales of all equity securities. Please visit http://www.sec.gov/rules/other/2008/34-58572.pdf to read a copy of the SEC’s new rules on short selling.

Proposed Rule for Disclosure of Adviser and Hedge Fund Managers Short Positions

In addition to the adoption of the new short selling rules, today Chairman Cox intends to ask the SEC Commission to consider the adoption of another emergency rule that will require hedge funds and other large institutional investors to “begin public reporting of their daily short positions.” The specific requirements of this new short position disclosure rule are unclear at this time. For example, it is not known whether managers would be required to file these reports directly with the SEC staff, over the SEC’s EDGAR database or via some other reporting mechanism. For a copy of the SEC’s press release on this topic, please visit http://www.sec.gov/news/press/2008/2008-209.htm.

We will certainly monitor these developments closely and provide you with an updated note once more is known. Please do not hesitate to contact your ACA compliance consultant if you have any questions related to these issues.

OCIE and Other Regulators Sent Into Action to Review Rumors

As a result of recent cases and allegations relating to the misuse of rumors, on July 13, 2008 the SEC announced the commencement of a “Rumor Sweep” to be conducted by its Office of Compliance Inspections and Examinations (“OCIE”) and other regulators (http://www.sec.gov/news/press/2008/2008-140.htm), and aimed at preventing the intentional spread of false information intended to manipulate securities prices. ACA has observed the following requests for documents submitted to advisers by OCIE related to rumors:

Policies and procedures related to rumors;
Training of advisory staff on the handling of rumors;
Policies and procedures related to electronic communications;
Tests implemented by advisers to ensure that its procedures are effective as they relate to rumors; and
The occurrence of violations of the adviser’s code of ethics as they relate to rumors.

Notwithstanding the results of the “Rumor Sweep,” ACA expects OCIE to incorporate a review of rumors into its routine examinations of investment advisers. However, given the widely-publicized nature of the events leading-up to the Rumor Sweep, the SEC’s articulation of the impact of those events on the financial system and the fact that the Rumor Sweep involves multiple regulators, ACA expects that coordinated formal guidance may be proposed in this area by the SEC, FINRA and the NYSE. It is also possible that the SEC’s Enforcement Division could bring additional enforcement actions against investment advisers and broker/dealers based on the findings that are collected in the Rumor Sweep.

SEC Subpoenas Related to Trading in Specific Investments

The SEC has reportedly issued over 50 subpoenas to investment management firms as a result of allegations and suspicions surrounding trading in the stock and derivatives of two financial services firms. The SEC has requested the following documents related to trading in the securities of the two companies:

Position and trading records related to the adviser’s position in stock and derivatives of the issuers;
The identification of advisory personnel that are responsible for directing the transactions in the issuers;
Relationships that the adviser maintains with the issuers, including prime brokerage, swap counterparty, etc. and a summary of the size and scope of the relationships;
Changes in the relationships that the adviser maintained with the issuers, including withdrawals, cancellations, novations, etc.; and
All documents and communications, including emails, instant messages, etc., related to a timeline of events regarding the issuers.

In the event that your firm receives the subpoena, ACA advises you to consider forwarding the list to Legal and Compliance personnel and to contact outside counsel.

SEC Protects against Naked Short Selling Certain Financial Services Firms

On July 15, 2008, the SEC issued an emergency order (available on the SEC website at http://www.sec.gov/rules/other/2008/34-58166.pdf and http://www.sec.gov/rules/other/2008/34-58166.pdf) intended to enhance investor protections against “naked“ short selling in the securities of Fannie Mae, Freddie Mac, and primary dealers at commercial and investment banks.

The SEC concluded that requiring all persons to borrow or arrange to borrow the securities of 19 firms prior to effecting a short sale of those securities is in the “public interest and for the protection of investors to maintain fair and orderly securities markets, and to prevent substantial disruption in the securities markets” and that the emergency requirement will “eliminate any possibility that naked short selling may contribute to the disruption of markets in these securities”.

The order takes effect at 12:01 a.m. on Monday, July 21 and terminates at 11:59 p.m. on Tuesday, July 29, 2008; although the Commission has the ability to extend the emergency order for a period of no more than 30 calendar days in total duration. ACA recommends that a firm intent on shorting a security on the SEC’s list consider obtaining guidance from outside counsel and the firm’s counterparties on to go about complying with the SEC’s emergency order.

SEC Interpretive Letter Regarding the Application of the Cash Solicitation Rule to Managers of Private Funds

On July 15, 2008, the Office of Chief Counsel of the SEC’s Division of Investment Management issued an interpretive letter to Mayer Brown LLP which clarifies that Rule 206(4)-3 under the Investment Advisers Act of 1940, otherwise known as the “cash solicitation rule,” generally does not apply to an adviser that compensates individuals/entities for soliciting investors in privately managed investment pools managed by the adviser. Through the interpretive letter, the SEC has waived substantially all of the requirements of the solicitation rule, including maintaining a written agreement with the solicitor, maintaining a separate written solicitor disclosure document, requiring solicited investors to acknowledge their receipt of various documents, etc.

Notwithstanding, while the SEC’s interpretive letter does not comment on the nature or detail of disclosure, if any, that may be necessary to describe the referral arrangement, ACA recommends that advisers to privately managed investment pools include certain disclosures regarding such arrangements in Schedule F of Part II of Form ADV in response to Item 13B. Specifically, an adviser may consider including disclosure regarding the existence of all referral arrangements, the summary terms of the compensation paid to the referring party, whether the investor is paying greater fees as a result of the referral arrangement and any other material conflict of interest presented by the referral arrangement.

Supplemental Initial Document Request List

As noted in ACA’s most recent Compliance Alert dated July 6, 2008, OCIE appears to be nearing its goal of implementing a significantly revised standard document request list (“Standard List”) for nationwide use during routine examinations of registered investment advisers. Further review of a sample of Standard Lists indicates that the Standard List also includes Supplemental Initial Request Items (“Supplemental List”) which appear to be included as a supplement to the Standard List based on the types of clients managed by the adviser. For example, the Supplemental List contains targeted document requests specific to advisers that manage registered investment companies, privately offered funds or who serve as a manager-of-managers. Examples of the Standard List and Supplemental List can be viewed at (http://www.acacompliancegroup.com/documents/SECDocumentRequestList-061608.pdf and http://www.acacompliancegroup.com/documents/SupplementalInitialDocumentRequests7-08.pdf).

Has the New Nationwide SEC Document Request List Arrived?

As widely reported, the SEC’s Office of Compliance Inspections and Examinations (OCIE), appears to be nearing its goal of implementing a significantly revised standard document request list for nationwide use during routine examinations of registered investment advisers. The latest document request list, which can be viewed at http://www.acacompliancegroup.com/documents/SECDocumentRequestList-061608.pdf, may be the most representative version of a nationwide list that we have seen and seems to materially differ from the preceding version in the following manner:

The existence of an expanded cover letter – The cover letter describes: 1. OCIE’s expectation as to the format and timing in which document requests should be provided to the examination team; 2. the on-site portion of OCIE’s examination, including the provision of office space for the examination team, as well as OCIE’s desire to interview various advisory personnel; and 3. the rationale for certain document requests and the general information that the examination team learns from various types of documents.
The modification of the section entitled “Information Regarding the Adviser’s Compliance Program, Risk Management and Internal Controls” – A similar section from the previous document request list asked for an adviser to provide documentation to substantiate the effectiveness of its compliance policies and procedures in eleven different areas, such as portfolio management, trade allocation, and advertising. These requests have been replaced by more general requests for information about an adviser’s compliance policies and procedures, periodic testing and reviews, and risk mapping processes.
Omission of requests for records that may not be required – The new document request list includes fewer requests for documents that are arguably not required records under the Advisers Act books and records rule. For example, the new document request list does not ask for lists of cross trades or trading errors, nor for specific information about an adviser’s anti-money laundering program.
Omission of “secondary requests” – The new document request list does not include a “secondary requests” section that was included on previous document request lists. Secondary requests were typically viewed as documents that should be “readily available upon SEC request”, even though the documents were not initially being requested. However, a “supplemental initial request for items” section exists in the new document request list and includes document requests that should be relevant to the specific type of adviser being examined (e.g., hedge fund managers, CDO managers, etc.).

ACA is expecting that the latest document request list will be rolled-out on a nationwide basis with substantially similar content to the version on the ACA website (which came from the New York Regional Office). While the shortened list should be a welcome change for investment advisers, ACA cautions that the initial document request list is often supplemented with extensive additional document requests during the course of a typical OCIE examination. Additionally, OCIE continues to signal its belief that all records developed by an investment adviser, whether required or not under the Advisers Act books and records rule, are subject to review during an examination.

Please do not hesitate to contact your ACA compliance consultant if you have any questions pertaining to how the new document request list may impact the current practices at your firm.

SEC “Springing” Into Action on Several Fronts

A. Continued Focus on Gifts

On March 5, 2008, the SEC announced an Administrative Proceeding against Fidelity Management and Research Company and FMR Co., Inc. (together, “Fidelity”) regarding the improper acceptance by traders and executives of more than $1.6 million in travel, entertainment, and other gifts paid for by outside brokers seeking to receive “order flow” from the mutual funds managed by Fidelity.

Although many investment management firms have made significant enhancements to their gift and entertainment policies, procedures and compliance testing program over the last several years, we do note the following regarding the case:

This case gives clear rationale for the SEC’s concern regarding the negative influences that the receipt of gifts and entertainment can create for investment advisers; therefore, despite the fact that an investment adviser is not formally required under the Investment Advisers Act of 1940 (“Advisers Act”) to monitor employees’ receipt of gifts and entertainment, the case makes the argument for an adviser to implement a “Gifts and Entertainment” policy and procedures that require, among other things, the reporting of employees’ receipt of gifts and entertainment. The SEC noted this issue as a “failure to supervise” claim under the Investment Company Act of 1940 and the Advisers Act.
Investment advisers must consider reviewing employees’ receipt of gifts and entertainment as part of its overall analysis to determine whether it is adequately seeking to obtain best execution on its clients’ transactions.
Investment advisers must review the relationships that employees have with sell-side brokers, including romantic and familial relationships and effectively address such conflicts by disclosing their existence or mitigating them in whole or in part.
Electronic correspondence, specifically Bloomberg emails, was once again utilized by the SEC to support its finding in this case. Investment advisers should consider developing an “Electronic Communications” policy and procedures and periodically test the effectiveness of the procedures. In addition, and most importantly, compliance officers should implement a thoughtful email and instant messaging search program with regard to higher risk compliance areas.

Please refer to http://www.sec.gov/litigation/admin/2008/ia-2713.pdf for a copy of the Administrative Proceeding.

B. Update to Part II of Form ADV

On March 3, 2008 the SEC posted IA Release No. 2711, which is the highly-anticipated proposed revision to Part II of Form ADV. ACA believes that the most noteworthy proposed changes to Part II of Form ADV are the following:

The current Part II of Form ADV will become Part 2A, which is the “Firm Brochure,” and Part 2B, which is the “Brochure Supplement.”
Part 2A will be a written description of an adviser’s services, fees, business practices, and conflicts of interest, addressing 19 separate items in a “Plain English” format. The information in proposed Part 2A is similar to the information that is currently made available in Part II of Form ADV and Schedule F.
Part 2B consists of supplements that disclose pertinent information about all of a firm’s employees that provide investment advice. Each such employee would have a supplement consisting of the following six items: (1) a cover page that includes background on the individual and the adviser, (2) educational background and business experience, (3) disciplinary history, (4) other business activities engaged in by the individual, (5) additional compensation received by the individual, and (6) how the individual is supervised.
Both Parts 2A and 2B will be filed electronically with the SEC through the IARD system in PDF or an alternate approved format.
Part 2A will be required to be delivered (not offered) to clients on an annual basis no later than 120 days after the end of the adviser’s fiscal year. However, changes in the disciplinary history of the adviser would require an interim delivery of Part 2A.
Part 2B supplements will be required to be delivered as follows: (1) the supplements of individuals providing investment advice must be furnished initially; and (2) thereafter, the supplements only need to be furnished pursuant to changes in the individual’s disciplinary history.
An annual update of Part 2A must be filed on the IARD system.

Please refer to http://www.sec.gov/rules/proposed/2008/ia-2711.pdf for a copy of the proposed amendments to Part II of Form ADV. The comment period for the amended Part II and relevant rules extends through May 16, 2008.

C. Regulation S-P Amendments on the Way

On March 4, 2008 the SEC proposed amendments to Regulation S-P in IA Release No. 2712 in light of the increase in information security breaches. Of particular note is the following:

Overall strengthening of the information security program, including: (1) designating an employee to administer the program, (2) documenting the risks that are to be addressed in the program, (3) designing and implementing written safeguards to guard against the risks, (4) regularly testing the safeguards, (5) training employees about the program, (6) ensuring that service providers have reasonable protections in place, and (7) revising the program as necessary.
Development of procedures for responding to incidents of unauthorized access to or use of personal information, including: (1) assessing the extent of the incident, (2) taking steps to prevent additional unauthorized access or use of personal information, (3) conducting an investigation to determine the likelihood that the information will be misused, and (4) notifying affected clients if the adviser determines that misuse of the information has occurred or is likely to occur (proposed guidance exists on the form of the notification).
An expansion of the scope of information covered by the safeguards and disposal rules.
A proposed exception from Regulation S-P’s notice and opt-out requirements to allow investors to more easily follow a representative who moves from one brokerage or advisory firm to another.

Please refer to http://www.sec.gov/rules/proposed/2008/34-57427.pdf for a copy of the proposed amendments to Regulation S-P. The comment period for the proposed amendments to Regulation S-P extends to the middle of May 2008.

D. SEC’s 2008 CCOutreach Regional Seminars

Finally, we encourage all of you to consider registering for one of the local CCOutreach Seminars that the SEC will be hosting in throughout the spring of 2008. These events afford you the opportunity to hear directly from your regulator about their main priorities and concerns. In addition, these events have also proven to be a great way to network and meet other compliance professionals in your area. A full listing of the SEC’s regional events can be found by clicking on: http://www.sec.gov/info/cco/ccorscal2008.htm.

Please do not hesitate to contact your ACA compliance consultant if you have any questions pertaining to how these issues may impact the current practices at your firm.

New Comprehensive SEC Document Request List

The Staff (“Staff”) of the SEC’s New York Regional Office (“NYRO”) has recently begun utilizing a new document request list that appears to have expanded the number of documents that the Staff desires to review at the onset of its examinations. While the new document request list includes many familiar document requests, ACA has observed the following issues related to the new document request list:

Each broad category of documents requested, such as Portfolio Management/Trading documents and Disclosure documents, includes a request to provide exception reports and other documents that demonstrate how the adviser’s policies and procedures work “in practice”. The list indicates that a failure by an adviser to provide such documents could be interpreted by the SEC as a sign of “weak or ineffective risk management and control processes”.
Each broad category of documents requested includes a request to identify the individuals responsible for developing and maintaining the policies and procedures and the individuals responsible for ensuring compliance with the policies and procedures.
The new document request list continues to request documents in a format that appears to accommodate the Staff’s review, but may be difficult for your firm to assemble. In the event that your firm does not maintain the documents in the format requested by the Staff, you are encouraged to review the document request with the Staff prior to dedicating a large amount of resources to develop a document in the requested format. We expect a reasonable amount of latitude in this area given the fact that the Investment Advisers Act of 1940 does not include a requirement to maintain documents in a specified format.
The document request list is comprehensive and the initial requests in each broad category of documents are very detailed. The breadth and depth of the initial document requests may signal a departure from the risk-based approach that the Staff had reportedly adopted.

The expanded document requests, coupled with our observed increase in the number of interviews conducted by the Staff during examinations, will likely increase the burden an SEC examination places on your firm. To receive the new document request list visit ACA’s website at www.acacompliancegroup.com/news/ or click on www.acacompliancegroup.com/news/documents/SEC_NYRO_Request_List-Aug2007.pdf

New York Regional Office Examination Staff Interviews on the Rise

The SEC’s New York Regional Office (“NYRO” or “Staff”) has recently been conducting a larger number of interviews with registered investment adviser staff during routine SEC inspections. The interviews, which tend to last between 30 and 60 minutes, are being requested with portfolio managers, traders, analysts, executive officers (e.g., CFO, CCO) and information technology professionals.

If your firm is located in the SEC’s New York Region (i.e., New Jersey and New York), we believe it would be prudent to review the following questions and areas of focus:

Potential conflicts of interest.
- Relationships with non-employees that work in the same office space as the registered adviser (e.g., unaffiliated research analysts) are being scrutinized from a privacy standpoint to evaluate whether such individuals have access to the investment adviser’s non-public trading information.
- Relationships with “value-added” investors are also being analyzed. “Value-added” investors can include sell side brokers, investment banking research analysts, other brokerage employees, other hedge funds, employees of unaffiliated investment advisers to hedge funds, senior executives of public companies, and paid consultants.
- Trading on behalf of clients that provide client or investor referrals are being reviewed for any form of preferential treatment, such as reduced fees.
- Any business relationships with persons that also have personal relationships with investment adviser employees are being reviewed. For example, the Staff will ask a firm’s traders whether they execute client transactions or otherwise maintain any business relationship with anyone to whom they are related (e.g., parent, sibling, in-law, etc.). Investment advisers can expect to be asked about internal anti-nepotism policies, if any, as well.
Sharing office space. NYRO is inquiring about any lease- or office-sharing arrangements with other investment advisers. The focus appears to be on internal procedures to restrict the flow of material non-public information, thus offices of multiple investment advisers in close proximity may also receive scrutiny. In addition, if the costs associated with such office space are passed through to any of an adviser’s clients (e.g., private investment fund), then you should be prepared to address how such costs are allocated between the fund and any outside third-parties with whom you are sharing space.
Restriction of material non-public information. With respect to restricted trading lists, relevant personnel (e.g., traders, portfolio managers) are being asked about internal procedures detailing how a security is added to, or removed from, the list.
Sourcing ideas. NYRO is asking investment personnel about how investment ideas are generated (e.g., conferences sponsored by broker-dealers, other investment advisers, idea dinners) and potentially cross-referencing responses with the relevant personnel’s personal trading activities.
Investment guidelines in marketing materials. If your firm advertises broad and general investment guidelines in its marketing materials (e.g., no more than 5% of a client’s capital in any one issuer or no more than 15% of a client’s capital in a particular sector), then the SEC may ask about how your firm is monitoring its compliance relative to such guidelines regardless of any disclosure in the investment management agreement or other client governing documents.
PIPE transactions. Confidentiality agreements executed prior to information exchange about upcoming PIPE deals are being evaluated. The SEC’s examination staff wants information on both PIPES that your firm invested in and also those that were offered to the firm but that the adviser ultimately decided to pass upon.

These more detailed questions may be supplemented with additional document requests that would enable NYRO staff to conduct further analysis of the issues.

Please do not hesitate to contact your ACA compliance consultant or ACA’s Washington, DC office at (202) 955-5800 if you have any questions about how this relates to your firm’s practices.

SEC Staff Cautions Firms to Beware of Imposters

Late last week, the SEC staff posted an alert to its website warning firms to be cautious of individuals impersonating SEC staff. According to the alert, individuals have contacted firms by telephone, identified themselves as members of the SEC staff, and demanded immediate access to confidential records. In some cases, they claimed to be conducting an “emergency” examination. In others, they claimed to be gathering information on behalf of some well-known SEC official.

If you or anyone at your firm is contacted by someone claiming to be from the SEC, you should immediately take steps to confirm the individual’s identity before divulging any confidential information. Specifically, ask for the individual’s name, office, and telephone number. SEC phone numbers for each office are posted on the SEC’s website at: http://www.sec.gov/contact/addresses.htm. According to the alert, firms should “call the main number of the particular office that the caller identified, and ask to speak to the SEC staff person.” You can always call an ACA consultant as well in order to confirm the identity of an SEC examiner.
If you are contacted by anyone claiming to work for the SEC and you are unable to verify the individual’s identity, you should immediately report the incident to the SEC’s Examination Hotline at (202) 551-EXAM, or to the SEC’s Inspector General at (202) 551-6060.
To read the full alert, go to: http://www.sec.gov/about/offices/ocie/imposteralert.htm

Soft Dollar Reminder

On July 18, 2006 the SEC issued its revised interpretation of the scope of “brokerage and research services” under Section 28(e) of the Securities Exchange Act of 1934 (the “Release”).

Refer to http://www.sec.gov/rules/interp/2006/34-54165.pdf for a copy of the Release.

The Release permits market participants to rely on the SEC’s prior interpretations of Section 28(e) until January 24, 2007. As that date is fast approaching, advisers are reminded to review their soft dollar products and services in light of the revised interpretation and take appropriate action prior to January 24, 2007.

SEC Announces Proposals Impacting Hedge Funds

On December 13th at the SEC’s Open Meeting, the Commission voted to propose several new rules aimed at protecting hedge fund investors. The proposals will be available shortly on the SEC’s web site at www.sec.gov.

Anti-Fraud Rule Proposal

This proposal would make it fraudulent for an investment adviser to mislead or defraud investors or prospective investors in pooled investment vehicles. The rule would apply to any adviser managing a pooled investment vehicle that relies on the Section 3(c)(1) or 3(c)(7) exclusions of the Investment Company Act.

The new anti-fraud rule proposal is among those that Chairman Cox predicted would replace recently vacated rule 203(b)(3)-2. Rule 203(b)(3)-2, also known as the Hedge Fund Rule, required certain previously exempt hedge fund advisers to register with the SEC. Although the rule was vacated, most hedge fund managers have chosen to remain registered.

Proposed Changes to Accredited Investor Definition

A second proposal changes the accredited investor standard, making it more difficult for individuals to invest in private investment vehicles. Under the proposal, natural persons would not only have to meet the normal net worth/income requirement for an accredited investor, but would also have to own at least $2.5 million in investments. Since this rule applies only to natural persons, institutional investors would not be affected.

Associate Regional Director in the SEC’s Northeast Regional Office Discusses Exam Program Changes

Thomas Biolsi, Associate Regional Director of the SEC’s Northeast Regional Office (“NERO”), spoke this week at the NYC Compliance Officer Winter Roundtable co-sponsored by Sidley Austin LLP and Adviser Compliance Associates, LLC. Mr. Biolsi discussed the following changes to NERO’s examination protocol:

Firms will receive two weeks notice of an examination and will be expected to produce all initially requested documents no later than the end of the first week of the exam. Firms that fail to meet the deadline will be required to explain the reason(s) for the delay to SEC senior management.
Examiners will conduct bi-weekly internal training sessions to ensure the consistency of their approach and that a minimum level of review is occurring on all examinations. Biolsi stressed that NERO examiners will be conducting more interviews of advisory personnel while on-site and that senior examiners in NERO’s investment adviser and investment company (mutual fund) branches are now involved in a cross training program.
Examiners will be particularly alert to abuses arising from conflicts of interest, inside information, and questionable brokerage activity. Activities that may receive increased scrutiny from NERO’s examiners include: (1) executing trades through brokers who also invest in a firm’s hedge fund, (2) directing brokerage to firms that provide client and/or investor referrals, and (3) obtaining investment ideas from investors and employees who have access to inside information about other companies.
The Staff is very interested in the results and documentation of advisers’ annual reviews. Biolsi indicated that examiners want to see the results of the annual review and how the firm or the CCO arrived at the results. More specifically, he stressed that examiners will want to get a sense of (1) what was tested, (2) who was interviewed and (3) what was the outcome. They expect senior executives in various business units to be involved in the conflict assessment and annual review process. Additionally, Biolsi appears to believe very strongly that CCO’s and compliance professionals need to have a clear action plan on how to resolve problems or issues that are identified during the annual review process.

SEC Increases Scrutiny

Recent reports from the U.S. Securities and Exchange Commission (“SEC”) indicate that insider trading cases are on the rise and that hedge funds may be under increased scrutiny. Hedge funds have historically been known to receive inside information regarding equity markets, but are becoming increasingly entrenched in the loan markets, which are rife with confidential information. Hedge funds’ access to deal information is growing, and regulators seem to be watching.

How Compliance Officers Can Look for Improper Sharing of Inside Information

Compliance officers may utilize the following review points to detect improper sharing of inside information:

Attend meetings during which inside information may be shared;
Educate personnel on penalties associated with insider trading and firm policies;
Review email correspondence, minutes from portfolio management meetings, confidentiality agreements, proxies for notice of buy-outs, travel records for evidence of proxy vote takeover and other significant company events, and profitable short-term trading activities around company news;
Require prior approval of confidentiality agreements by the Chief Compliance Officer; and
Investigate vehicles receiving buy-out targeted stocks.

AIMA Issues Guidance on Side Letter Disclosures

On September 27th, the Alternative Investment Management Association (“AIMA”), a United Kingdom trade association, issued guidance regarding side letter disclosure standards to assist firms in complying with UK Financial Services Authority (“FSA”) requirements. While the AIMA Guidance Note is not binding, the FSA is expected to take the guidance into account when exercising its regulatory functions.

Why is this Important to a US Hedge Fund Manager?

The guidance is directed toward FSA-regulated advisers and their affiliates. However, US fund managers with affiliates or branch offices in the UK may need to add disclosure regarding side letters. Additionally, the AIMA Guidance Note may also influence the position of the U.S. Securities Exchange Commission (“SEC”) on the issue of side letter disclosure, as evidenced by the SEC’s recent focus in this area.

What Should be Disclosed?

Per the AIMA Guidance Note, investment advisers should disclose the existence of side letters that contain “material terms” and the nature of any such terms. A “material term,” as defined in the AIMA Guidance Note, includes any term that is reasonably expected to put other shareholders at a material disadvantage. Examples include: (1) grants of preferential redemption rights (including shorter notice periods), (2) providing redemption gate waivers, (3) giving certain shareholders portfolio transparency rights, (4) “key man” provisions and (5) percentage of investor holdings where grants are to investors owning over 10% of the fund.

Advisers do not need to disclose the following: (1) the existence of fee rebates, (2) “most favored nation” clauses, (3) the number of side letters entered into by the hedge fund, (4) the dates in which a side letter agreement was entered, or (5) the identities of the parties to any side letters.

ACA encourages all hedge fund managers to review their side letter arrangements in light of the issues raised in the AIMA Guidance Note, which is promoting full compliance by October 31, 2006. For additional information refer to: www.aima.org/uploads/IndustryGuidanceNoteSideLettersPublic.pdf.