Why states have opted to “Go Your Own Way” on fiduciary standards re. broker-dealers and investment advisers

Over the past 2 years, the states have taken disparate approaches to filling what they perceive as a regulatory void when the DOL Fiduciary Rule was struck down by a federal court. At the outset, most states, with the exception of Nevada, took a disclosure-based approach (most notably, NY and NJ), and legislation was the preferred avenue. Now, the trend is toward heightening the standard of care (disclosure appears to be viewed skeptically) through regulation (executive/governor’s branch). Though it varies by state, there at times can be incongruity of approach taken within a state. For example, the New Jersey legislation favored disclosure, whereas Governor Murphy preferred a new standard of care. Though the New Jersey legislation is unlikely to be reintroduced next year, it highlights a risk for market participants when there is inconsistency intrastate and interstate. We are expecting to see draft bills over the coming months for the next session in a small handful of states, but will also keep a (very) close eye on if and when either or both of New Jersey and Massachusetts decide to move forward with their fiduciary duty regulations applicable to broker-dealers and investment advisers. Nevada is also likely to be moving forward with finalization on its proposed fiduciary implementing regulation.

Go Your Own Way: States pursue their own fiduciary standards for broker-dealers

Fiduciary Governance Group members to present on the impact of the SEC standards of conduct rulemaking on fund directors

Larry Stadulis and Sara Crovitz further expand their analysis of Regulation Best Interest, Form CRS and the IA Interpretive Release by hosting a webinar for the Mutual Fund Directors Forum. The webinar is called, “What Directors Need to Know about Regulation Best Interest and the Standards of Conduct Rulemaking Package,” and is scheduled for Thursday, September 12 from 2:00-3:00 pm. Further information, including registration, can be found here.

A Private Fund Manager’s Guide to the SEC’s ‘Standard of Conduct’ Release

The Securities and Exchange Commission recently adopted a package of new rules and interpretations, including Regulation Best Interest (Reg BI), the Form CRS Relationship Summary (Form CRS) and guidance1 on the Investment Advisers Act of 1940 (the Advisers Act Guidance or Release). This Client Alert will focus on the Advisers Act Guidance, which is applicable to both advisers fully registered with the SEC and exempt reporting advisers who manage only private funds.2 The following is a brief discussion of certain aspects that may be relevant to private fund managers.

More information on Reg BI, which is applicable only to broker-dealers, and Form CRS, which is applicable only to broker-dealers and investment advisers3 that enter into advisory contracts with “retail” investors, can be found in separate Client Alerts [Risk&Reward-June Edition and Risk&Reward-July Edition].

With the Advisers Act Guidance, the SEC aims to “reaffirm – and in some cases clarify – certain aspects of” an adviser’s fiduciary duty under the Advisers Act, namely the duty of care and duty of loyalty all advisers owe their clients. Of particular importance to private fund managers are the SEC’s general focus on the duty of loyalty as it relates to disclosure of material facts about conflicts of interest, and the SEC’s specific discussion of conflicts associated with allocation of investment opportunities among clients, including co-investments, each of which we cover below. In addition, we highlight a recent enforcement case involving a U.K.-based hedge fund manager that underscores certain of the themes from the Advisers Act Guidance.

Duty of Loyalty
The Release lays out the SEC’s view that “[u]nder its duty of loyalty, an investment adviser must eliminate or make full and fair disclosure of all conflicts of interest … such that a client can provide informed consent to the conflict.”

Disclosure and Informed Consent
The Release is not prescriptive with respect to how an adviser must disclose any conflicts and obtain informed consent from clients, but it does note that consent need not be in a written agreement. Rather, an adviser’s “client could implicitly consent by entering into or continuing the investment advisory relationship,” after receiving “a combination of Form ADV and other disclosure.” Although offering memoranda are not specifically referenced in the Advisers Act Guidance, SEC staff has suggested in the past4 that such disclosure may include a private fund’s offering memorandum.

Nor is the Release prescriptive in terms of the format and content of the disclosure, although the SEC clearly differentiated between an adviser’s obligations with respect to institutional clients (e.g., a private fund) and “retail” clients, noting that what constitutes full and fair disclosure “can differ, in some cases, significantly” between the two audiences.5 The key, however, is that “regardless of the nature of the client, the disclosure must be clear and detailed enough for the client to make an informed decision to consent to the conflict of interest or reject it.”

Specificity of Disclosure and Appropriateness of Use of ‘May’
The Release does, however, provide examples of disclosure practices that the SEC considers inadequate or inappropriate, with a particular focus on use of the word “may.” Citing past enforcement actions, the SEC points out that “disclosure that an adviser ‘may’ have a particular conflict, without more, is not adequate when the conflict actually exists…. In addition, the use of ‘may’ would be inappropriate if it simply precedes a list of all possible or potential conflicts regardless of likelihood and obfuscates actual conflicts to the point that a client cannot provide informed consent.” In terms of level of detail, the guidance notes that it would be insufficient simply to disclose that an adviser “has ‘other clients’ without describing how the adviser will manage conflicts between clients if and when they arise or to disclose that the adviser has ‘conflicts’ without further description.” Managers should take note of the above and review their firm’s disclosure for appropriate use of the word “may.”

Allocation of Investment Opportunities Including Co-Investments
One specific area of potential conflicts of interest that the Release discussed is an adviser’s allocation policies and the obligation to describe “how the adviser will allocate investment opportunities, such that a client can provide informed consent.” In this way, the Release echoed in part the SEC’s Office of Compliance and Inspections (OCIE) 2019 Examination Priorities,6 which noted that OCIE plans to “review firms’ practices for … fairly allocating investment opportunities among clients,” and for “disclosing critical information to clients….”

For private fund managers, such allocation conflicts could arise in various contexts, for example, trade allocations among client accounts that have overlapping investment mandates, including a managed account run pari passu to a flagship fund, or a long-only fund that has been “carved out” from a flagship long/short fund. In addition, conflicts of interest could arise in the allocation of co-investment opportunities among clients, as suggested by the acting director of OCIE in a 2015 speech: “Co-investment opportunities have a very real and tangible economic value but also can be a source of various conflicts of interest,” and given that, “all investors deserve to know where they stand in the co-investment priority stack.”7 While on the enforcement front the SEC’s recent focus has primarily been on private equity managers’ practices with regard to allocation of fees and expenses associated with co-investments among clients,8 managers should take note of this increasing focus on co-investments more broadly, and should review their practices with respect to allocation of opportunities and relevant disclosure.

In terms of the content of allocation policies, the SEC clearly states that opportunities need not be allocated pro rata, noting further that “[a]n adviser and a client may even agree that certain investment opportunities or categories of investment opportunities will not be allocated or offered to a client” (emphasis added). The SEC’s use of the word “agree” in this context is a reminder of its expectation that an adviser’s “fiduciary duty follows the contours of the relationship … and the adviser and its client may shape that relationship by agreement, provided that there is full and fair disclosure and informed consent.”

Enforcement
In 2016, the SEC brought an enforcement proceeding9 against a U.K.-based hedge fund manager that highlights certain of the themes discussed above. In that case, the SEC alleged that the manager failed to inform investors in its existing flagship fund of the “significant overlap” in trade allocations between that flagship fund and a newer vehicle, which was marketed as having a divergent investment strategy. The SEC cited, among other things, the fact that the manager “never updated” the offering documents of the flagship fund, which disclosed that the manager “may manage additional funds in the future that may invest in the same markets as [the flagship fund] and certain conflicts of interest could result.” Further, the SEC alleged that the manager and its founder “should have, but did not, update the [due diligence questionnaire] response they provided to many existing and prospective [flagship fund] investors about [the new vehicle],” which continued to position the two funds as having separate strategies despite the “high degree of overlap” between their investments.

Duty of Care
In addition to its discussion of advisers’ duty of loyalty, the Release also describes advisers’ duty of care, including the duty to seek best execution and the newly described “duty to provide advice and monitoring.” With respect to best execution, the Release is consistent with prior SEC guidance and serves as a reminder of advisers’ obligations not only to seek best execution in selecting counterparties to execute trades on behalf of clients, but also to “periodically and systematically” evaluate such providers. Further, the Release lays out a newly described obligation to “monitor” client accounts, which should be “at a frequency that is in the best interest of the client, taking into account the scope of the agreed relationship.” While the SEC provides no specific guidance in terms of expectations with respect to private fund clients, all advisers may want to consider how best to document satisfaction of their duty to monitor client accounts. The Release further suggests that registered investment advisers “may consider whether written policies and procedures relating to monitoring would be appropriate.”

Given that the Release is immediately effective, below are certain questions that private fund managers may wish to consider in light of the SEC’s focus on these issues:

  • Have you reviewed the Conflicts of Interest disclosure in your fund offering documents and/or Form ADV, Part 2A, for appropriate use of the word “may”?
  • Do you have a written investment allocation policy, and are you following it and documenting any deviations therefrom?
  • Does your firm participate in co-investments, and if so, have you disclosed your policy (and any updates) to investors?
  • Do you have a process and documentation in place to substantiate your firm’s “duty to monitor” client accounts?

1 Commission Interpretation Regarding Standard of Conduct for Investment Advisers, Investment Advisers Act Release No. IA-5248 (June 5, 2019).

2 The Advisers Act Guidance also applies to any managers relying on the “foreign private adviser” exemption of Section 202(a)(30) of the Advisers Act (Foreign Private Advisers), generally those with fewer than 15 U.S. clients and 15 U.S. investors in private funds as well as less than $25 million attributable to such U.S. clients and investors.

3 Note that Form CRS is also applicable to Foreign Private Advisers, but only to the extent of any advisory contracts with U.S. “retail” investors. A “retail” investor for purposes of Form CRS includes any natural person, without regard to net worth or sophistication. Note, however, that Form CRS does not “look through” to underlying investors in pooled investment vehicles such as hedge funds or mutual funds, such that it will not impact managers of only such vehicles, or those who advise institutional clients, such as separately managed accounts with endowments or pension funds.

4 Julie Riewe, co-chief, Asset Management Unit, Division of Enforcement, SEC, “Conflicts, Conflicts, Everywhere” (Feb. 26, 2015); see also In re James Caird Asset Management LLP and Timothy G. Leslie, Investment Advisers Act Release No. 4413 (June 2, 2016).

5 The Release notes that “institutional clients generally have a greater capacity and more resources than retail clients to analyze and understand complex conflicts and their ramifications.”

6 OCIE, SEC, Examination Priorities for 2019 (Dec. 20, 2018).

7 Marc Wyatt, acting director, Office of Compliance Inspections & Examinations, SEC, “Private Equity: A Look Back and a Glimpse Ahead” (May 13, 2015).

8 In re Lightyear Capital LLC, Investment Advisers Act Release No. 5096 (Dec. 26, 2018); and In re Kohlberg Kravis Roberts & Co. L.P., Investment Advisers Act Release No. 4131 (June 29, 2015).

9 In re Caird (June 2, 2016).

SEC Adopts Guidance on Proxy Advisory Firms and Proxy Rules

On Aug. 21, 2019, the Securities and Exchange Commission (the Commission) voted 3-2 to approve two interpretive guidance proposals related to proxy voting and proxy advisory firms.1 The first guidance discusses, among other matters, the ability of investment advisers to establish a variety of voting arrangements with their clients, as well as matters they should consider when they use the services of a proxy advisory firm. In addition, the Commission issued guidance that proxy voting advice provided by proxy advisory firms generally constitutes a “solicitation” under the federal proxy rules and provided related guidance about the application of the proxy antifraud rule to proxy voting advice.

Overall, the guidance reiterates positions taken by the Commission staff in 2014.2 However, certain aspects of the guidance are new, and we offer practical suggestions to investment advisers and funds as they review proxy voting policies and procedures and disclosure and consider whether amendments are appropriate.

Commission Guidance Regarding Proxy Voting Responsibilities of Investment Advisers3
The Commission issued guidance designed to assist investment advisers in fulfilling their proxy voting responsibilities, particularly where they use the services of a proxy advisory firm. Rule 206(4)-6 under the Investment Advisers Act of 1940 (Advisers Act) requires an investment adviser who exercises voting authority with respect to client securities to adopt and implement written policies and procedures that are reasonably designed to ensure that the investment adviser votes proxies in the best interest of its clients.

The guidance clarifies how an investment adviser’s fiduciary duty and Rule 206(4)-6 under the Advisers Act relate to an adviser’s proxy voting on behalf of clients, particularly if the investment adviser retains a proxy advisory firm. The guidance discusses, among other things:

  • How an investment adviser and its client, in establishing their relationship, may agree upon the scope of the investment adviser’s authority and responsibilities to vote proxies on behalf of that client.
  • What steps an investment adviser who has assumed voting authority on behalf of clients could take to demonstrate it is making voting determinations in a client’s best interest and in accordance with the investment adviser’s proxy voting policies and procedures.
  • Considerations for an investment adviser if it retains a proxy advisory firm to assist it in discharging its proxy voting duties.
  • Steps for an investment adviser to consider if it becomes aware of potential factual errors, incompleteness or methodological weaknesses in the proxy advisory firm’s analysis that may materially affect one or more of the investment adviser’s voting determinations.
  • How an investment adviser could evaluate the services of a proxy advisory firm that it retains, along with any material changes in services or operations by the proxy advisory firm.
  • Whether an investment adviser who has assumed voting authority on behalf of a client is required to exercise every opportunity to vote a proxy for that client.

The guidance is presented in a question-and-answer format and states that the examples it provides are not the only way for investment advisers to comply with the fiduciary duty imposed on them. Nonetheless, given the ongoing review of issues around proxy voting, advisers should expect the Commission’s Office of Compliance Inspections and Examinations to review compliance with the guidance.

Many investment advisers, including fund advisers, reviewed and updated their proxy voting policies and procedures and client disclosure following the issuance of SLB 20 in 2014. Advisers should consider whether such policies and procedures and disclosure adequately address, among others, the following issues raised in the Commission guidance:

  • Retaining or continuing to use a proxy advisory firm for research or voting recommendations. The Commission guidance includes considerations beyond those identified in SLB 20. In particular, advisers should consider how a proxy advisory firm seeks and utilizes issuer input with regard to the proxy advisory firm’s proxy voting policies, methodologies and peer group constructions. In addition, advisers should conduct a “reasonable investigation” of “potential factual errors, potential incompleteness, or potential methodological weaknesses” that may materially affect a voting determination. In this context, the Commission guidance indicates that an investment adviser should consider the proxy advisory firm’s “engagement with issuers,” including the process for the adviser to access the issuer’s views about the firm’s voting recommendations “in a timely and efficient manner.”4
  • At least annual review of policies and procedures. The Commission guidance indicates advisers should review votes cast to ensure consistency with voting policies and procedures. Advisers should consider whether the annual review of its policies and procedures adequately addresses sampling or testing of votes cast. Advisers, particularly fund advisers, should consider whether to identify in policies or procedures factors to consider as to whether to conduct a more detailed analysis with regard to an issuer or voting matter (e.g., with regard to corporate events or contested director elections).
  • Fund disclosure. The Commission guidance indicates that investment advisers to multiple funds or other clients should consider whether voting policies should be different depending on the investment strategies and objectives of each client. Registered funds should ensure that any such different voting policies are appropriately reflected in relevant disclosures.
  • Refraining from voting. The Commission guidance reiterates that investment advisers are not required to accept the authority to vote client securities. If an investment adviser accepts voting authority:
    • The investment adviser and client can agree on the scope of voting arrangements, including voting on only certain types of matters or always voting in favor of certain types of proposals.5 Such agreements should be subject to full disclosure and informed consent and should thus be clearly documented with the client.6
    • Absent specific agreement with a client, the investment adviser may determine that it is in the client’s best interest to refrain from voting if, for instance, the cost to the client of voting the proxy exceeds the expected benefit to the client. However, an investment adviser “may not ignore or be negligent in fulfilling the obligation it has assumed to vote client proxies and cannot fulfill its fiduciary responsibilities to its clients by merely refraining from voting the proxies.” Thus, an adviser should consider whether its procedures should identify factors that would be relevant to a determination to refrain from voting.

Commission Interpretation and Guidance Regarding the Applicability of the Proxy Rules7
The Commission also issued an interpretation of Rule 14a-1(l) under the Securities Exchange Act of 1934 (Exchange Act) that proxy voting advice generally constitutes a solicitation under the federal proxy rules and related guidance regarding the application of the antifraud provisions in Exchange Act Rule 14a-9 to proxy voting advice.8

The Commission’s interpretation that proxy voting advice generally constitutes a solicitation does not affect the ability of proxy advisory firms to continue to rely on the exemptions from the federal proxy rules’ filing requirements.9

While much of this guidance reiterates staff positions in SLB 20, the Commission guidance also explains what a person providing proxy voting advice should consider with respect to the information it may need to disclose in order to avoid a potential violation of Rule 14a-9 where the failure to disclose such information would render the advice materially false or misleading.

In particular, the guidance highlights that a proxy advisory firm should consider whether it may need to disclose “an explanation of the methodology used to formulate its voting advice on a particular matter (including any material deviations from the provider’s publicly-announced guidelines, policies, or standard methodologies for analyzing such matters).” If the voting advice is materially based on a methodology using a peer group comparison, the proxy advisory firm may need to include the identities of the peer group members and the reasons for selecting them. In addition, the proxy advisory firm may need to disclose third-party sources of information included in its reports and underlying its recommendations, particularly if the information deviates from the issuer’s publicly provided information.

The guidance appears to be designed to address issuer concerns that proxy advisory firms have relied on peer group comparisons that are poorly constructed (e.g., include peers from unrelated industries or differ from peers used for an issuer’s direct competitor) or on performance data or other issuer assessments that deviate from the issuer’s publicly released information. It is not clear yet what the impact of this guidance will be on proxy advisory firms and their relationships with asset management clients.

What’s Next?
The guidance and interpretation will be effective upon publication in the Federal Register, as there is no associated notice and comment period. As indicated in the Regulatory Flexibility Agenda, the Commission in the near future expects to engage in rulemaking with regard to submission and resubmission thresholds for shareholder proposals under Exchange Act Rule 14a-8 as well as proxy advisory firms’ reliance on the proxy solicitation exemptions in Exchange Act Rule 14a-2(b).


1 Commissioners Robert Jackson and Allison Lee dissented.

2 Proxy Voting: Proxy Voting Responsibilities of Investment Advisers and Availability of Exemptions from the Proxy Rules for Proxy Advisory Firms, Staff Legal Bulletin No. 20 (IM/CF) (June 30, 2014) (SLB 20), available at https://www.sec.gov/interps/legal/cfslb20.htm.

3
 Commission Guidance Regarding Proxy Voting Responsibilities of Investment Advisers, Securities and Exchange Commission, Investment Advisers Act Rel. No. 5325 (Aug. 21, 2019), available at https://www.sec.gov/rules/interp/2019/ia-5325.pdf.

4
 Two proxy advisory firms, ISS and Glass-Lewis, dominate the market for services. Both currently offer certain fact-checking and error correction processes. The Commission guidance does not clarify whether those processes are sufficient to address an investment adviser’s fiduciary duty.

5
 In this regard, the Commission guidance helpfully notes that a client and its investment adviser could agree not to restrict the use of securities for lending to preserve the right to vote in circumstances where such voting would impose opportunity costs on the client.

6
 Commission Interpretation Regarding Standard of Conduct for Investment Advisers, Securities and Exchange Commission, Investment Advisers Act Rel. No. 5248 (June 5, 2019), available at https://www.sec.gov/rules/interp/2019/ia-5248.pdf (“Whether the disclosure is full and fair will depend upon, among other things, the nature of the client, the scope of the services, and the material fact or conflict. Full and fair disclosure for an institutional client (including the specificity, level of detail, and explanation of terminology) can differ, in some cases significantly, from full and fair disclosure for a retail client because institutional clients generally have a greater capacity and more resources than retail clients to analyze and understand complex conflicts and their ramifications.” (internal citations omitted)).

7
 Commission Interpretation and Guidance Regarding the Applicability of the Proxy Rules to Proxy Voting Advice, Securities and Exchange Commission, Exchange Act Rel. No. 34-86721 (Aug. 21, 2019), available at https://www.sec.gov/rules/interp/2019/34-86721.pdf.

8
The federal proxy rules apply to any solicitation for a proxy with respect to any security registered under Exchange Act Section 12. Under Exchange Act Rule 14a-1(l), a solicitation includes, among other things, a “communication to security holders under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy,” and includes communications by a person seeking to influence the voting of proxies by shareholders, regardless of whether the person itself is seeking authorization to act as a proxy.

9
These exemptions, found in Rule 14a-2(b), among other things, provide relief from the obligation to file a proxy statement, as long as the advisory firm complies with the exemption’s conditions.

Trump officially nominates Scalia as next DOL Secretary

Per the White House:

Today, President Donald J. Trump announced his intent to nominate the following individual to a key position in his Administration:

Eugene Scalia of Virginia, to be Secretary of Labor.

Mr. Scalia, a partner at Gibson, Dunn & Crutcher LLP, is a renowned labor, employment, and regulatory lawyer. He has previously held several positions in the Federal Government. In the mid-to-late 1980s, he was a speechwriter to Secretary of Education William J. Bennett. From 1992 to 1993, Mr. Scalia served as a Special Assistant to Attorney General William P. Barr. In 2001, Mr. Scalia joined the Department of Labor as Solicitor of Labor, the Department’s principal legal officer with responsibility of a broad range of regulatory and enforcement matters. Mr. Scalia is a senior fellow of the Administrative Conference of the United States, a Federal agency that makes recommendations to Congress and the Executive branch on ways to improve agency procedures. He has served as a lecturer in labor and employment law at the University of Chicago Law School and as an adjunct professor at the University of the District of Columbia David A. Clarke School of Law. Mr. Scalia received his undergraduate degree, with distinction, from the University of Virginia and his law degree from the University of Chicago Law School, graduating cum laude and serving as editor-in-chief of the University of Chicago Law Review.