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

 Commission Guidance Regarding Proxy Voting Responsibilities of Investment Advisers, Securities and Exchange Commission, Investment Advisers Act Rel. No. 5325 (Aug. 21, 2019), available at

 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.

 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.

 Commission Interpretation Regarding Standard of Conduct for Investment Advisers, Securities and Exchange Commission, Investment Advisers Act Rel. No. 5248 (June 5, 2019), available at (“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)).

 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

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.

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.

SEC announces open meeting on investment adviser proxy issues

The SEC has announced that it will hold a public meeting on August 21 @ 10 am re:

  • whether to publish guidance regarding the proxy voting responsibilities of investment advisers under, inter alia, Rule 206(4)-6 under the Investment Advisers Act of 1940; and
  • whether to publish an interpretation and related guidance regarding the applicability of certain rules, which the Commission has promulgated under Section 14 of the Securities Exchange Act of 1934, to proxy voting advice.

We will track these developments carefully.

SEC Seeks Expanded Access to Private Fund Strategies

John P. Hamilton
Prufesh P. Modhera

On June 18, the Securities and Exchange Commission (SEC) issued a “Concept Release on Harmonization of Securities Offering Exemptions” (the Release). At over 200 pages, the Release seeks public comment on a wide variety of topics related to the current framework for private securities offerings.

This Client Alert will focus on two topics raised by the Release that are relevant to private fund managers: (i) potential changes to the definition of “accredited investors”1 and (ii) the potential for expanded access to private fund strategies, including private equity, venture capital and hedge fund strategies for retail investors who do not qualify as accredited investors. Public comments on the Release are due by Sept. 24.

Potential Changes to the Definition of Accredited Investor

Many private securities, including most private funds, are offered pursuant to an exemption from registration under Regulation D of the Securities Act of 1933, which generally requires that investors meet the qualifications of accredited investors.2 The Release seeks comment on whether to modify and/or expand the definition of that term.

In doing so, the Release revisits the SEC staff’s 2015 “Report on the Review of the Definition of Accredited Investor” (the 2015 Report),3 which recommended certain changes to the accredited investor definition, a summary of which can be found in a prior Client Alert. While the SEC declined to act on any of the changes recommended in the 2015 Report, this year’s Release seeks comment on largely the same list of recommendations as well as certain additional potential changes, two of which are highlighted below.

Similar to the 2015 Report, the Release again seeks comment on whether to maintain the current income and net worth tests and whether to index those amounts for inflation. Further, the Release asks whether to consider other measures of qualification, such as (i) a minimum investment test, rather than net worth; (ii) permitting individuals with certain professional credentials or prior experience investing in private offerings to qualify as accredited investors; or (iii) permitting individuals who pass an accredited investor exam to qualify as accredited investors. Two new suggestions from the Release not found in the 2015 Report are worth highlighting.

Opting In to Accredited Investor Status

First, at the suggestion of three commenters on the 2015 Report and with little additional context, the Release asks whether individuals should be permitted, “after receiving disclosure about the risks of a private offering, to opt into being accredited investors.”

Non-Accredited Investors Advised by Registered Financial Professionals

In addition, the Release then explores in considerable detail another manner of qualifying as an accredited investor, which in some ways could be viewed as an expansion of the purchaser representative concept currently part of Rule 506(b) under Regulation D. As noted above, such offerings currently may choose to permit a limited number of non-accredited investors who, together with a purchaser representative, are able to meet the requirement of sufficient knowledge and experience to evaluate the prospective investment. Any such offerings are subject to greater disclosure obligations, however, and are less common, particularly among private fund issuers.

Based in part on the recommendation of a 2017 Report4 from the U.S. Department of the Treasury (the 2017 Treasury Report) to permit “otherwise non-accredited investors to retain professionals to advise them in order to qualify as accredited investors without limitation,” the Release asks whether the definition of accredited investor should be expanded to include those advised by registered financial professionals.

The Release asks a lengthy series of questions related to this concept, including whether any limitations or other investor protections would be appropriate for such new category of accredited investors to participate in private offerings (e.g., limitations on the type or amount of investments, or additional disclosure requirements). For example, the SEC seeks comment on whether it should allow such investors

to invest in pooled investment funds, such as private funds under Section 3(c)(1) under the Investment Company Act, if these investors are: (1) subject to limits on the amounts of investments in such pooled investment funds, such as a dollar amount or percentage of investments; and/or (2) limited to making the investment out of retirement or other similarly federally-regulated accounts? Would such a change substantially eliminate current distinctions between registered funds and private funds?

While the level of support for such an expansion of the definition of accredited investor is unclear, the three pages of detailed questions devoted to it suggest that the SEC is at least open to facilitating broader participation in private fund offerings by retail investors who are advised by registered financial professionals but otherwise unable to meet the relevant income or net worth tests.

Potential for Expanded Access to Private Fund Strategies for Non-Accredited Investors

Recognizing that private companies, particularly growth-stage companies, often see pooled investment funds as a valuable source of capital, the Release asks whether the SEC should take steps to expand such issuers’ ability to raise capital through pooled investment funds … .” In addition, citing the potential advantages to retail investors of portfolio diversification and return profiles that are less correlated to the public markets, the Release asks “whether retail investors should be allowed greater exposure to growth stage issuers through pooled investment funds … .

The Release goes on to highlight some of the challenges currently faced by retail investors seeking exposure to private offerings through pooled investment funds, noting that for non-accredited investors, their options are limited to seeking exposure through funds registered under the Investment Company Act of 1940 (the Investment Company Act) and business development companies5 (BDCs). Further, as the Release notes, such funds generally have limited, if any, exposure to privately offered securities.

To that end, the Release seeks comment on whether there are any regulatory provisions or SEC practices that discourage registered investment companies and BDCs from participating in private offerings.

Registered Funds of Funds

Specifically addressing the concept of a registered fund open to retail investors serving as a “feeder fund” into private funds such as private equity and hedge funds, the Release notes that historically such an approach has raised SEC staff concerns, in that such retail investors would not be eligible to invest directly in the underlying private funds. However, the Release suggests a willingness to consider other views on this topic.

What restrictions should there be, if any, on the ability of closed-end funds, including BDCs, to invest in private funds, including private equity funds and hedge funds, and to offer their shares to retail investors?

Interval Funds

In addition, the Release spends time exploring one such closed-end fund structure registered under the Investment Company Act, the interval fund, which provides liquidity to investors through periodic share repurchases. Suggesting that the SEC views such structures as underutilized, and also noting the recommendation of the 2017 Treasury Report,6 the Release seeks comment on a series of questions focused on, among other things, the liquidity mechanism of share repurchases and ways to decrease the compliance costs of these vehicles more broadly.

For example, the Release asks whether it should permit interval funds to mirror the five-year investment period of a typical private equity fund, with periodic repurchases following such period, rather than the current maximum period, generally 12 months. Further, the Release seeks comment on whether it should make changes to facilitate compliance with certain technical aspects of the Investment Company Act by interval funds, particularly those pursuing a private equity or venture capital strategy (e.g., by permitting a two-year ramp-up period for funds to meet the relevant diversification requirements or by providing relief from the restrictions on affiliated transactions for control investments made by interval funds).

Retirement Savers – Target Date Funds and Robo-Advisers

The SEC also highlights target date funds aimed at retirement savers, which are typically structured as open-end funds registered under the Investment Company Act (i.e., mutual funds), as potentially appropriate vehicles to seek exposure to private offerings. The Release suggests that relative to other mutual funds, such funds with target dates far into the future may have holding periods that are better aligned with the limited liquidity profile of privately issued securities.

Therefore, the Release asks whether it should take steps to enable certain target date funds to seek limited exposure to private offerings. The Release also seeks comment on a similar concept of facilitating limited exposure to private offerings in the portfolios recommended by robo-advisers to the extent their services are focused on retirement savings for retail investors.

Performance Fees

The Release also asks whether the SEC should consider changes to the restrictions on performance fees under the Investment Advisers Act of 1940 (the Advisers Act). Performance fees, typically charged by private fund managers, may generally be charged only to a fund vehicle managed by a registered investment adviser7 if all the fund’s investors meet the standard of “qualified client,”8 which is generally considered a higher bar to meet than the accredited investor test.

Although the Release provides little additional context, the request for comment below implies an awareness by the SEC of the effect of regulatory constraints on the market for financial product development.

How do the restrictions on performance fees under the Advisers Act affect the offering of venture strategies by registered investment companies and BDCs? Should we make changes to the restrictions on performance fees?

And while the question above relates to registered funds and BDCs offering venture strategies, a similar analysis of the restriction on performance fees would be relevant to expansion of access to private funds for retail investors more generally, whether by an expansion of the definition of accredited investor or by permitting broader participation by non-accredited investors in private funds, either directly or indirectly (e.g., through a registered feeder fund as outlined above).

1 To be an accredited investor, a natural person generally must either have an annual income that exceeds $200,000 in each of the two most recent years (or $300,000 joint income with spouse) or a net worth exceeding $1 million (individually or jointly with spouse), excluding the value of their primary residence.

2 Note that under Rule 506(b) of Regulation D (the exemption most commonly used by private funds), a private security may be offered to an unlimited number of accredited investors. In addition, the issuer may also choose to permit up to 35 non-accredited investors, provided that all non-accredited investors, either alone or together with a third party that meets the requirements of a “purchaser representative,” must be sophisticated, i.e., they must have sufficient knowledge and experience to evaluate the prospective investment. If any non-accredited investors are included, however, the offering will be subject to greater disclosure obligations, and as a result, this is part of the reason few private fund issuers make offers to any non-accredited investors. In fact, according to the Release, only 6% of all private offerings under Rule 506(b) between 2015 and 2018 permitted non-accredited investors.

3 Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act, every four years the SEC is required to review the accredited investor definition as it relates to natural persons.

4 A Financial System That Creates Economic Opportunities, Capital Markets. U.S. Department of the Treasury (October 2017),

5 As described by the Release, “BDCs are a category of closed-end investment companies that do not register under the Investment Company Act, but rather elect to be subject to the provisions of sections 55 through 65 of that act.”

6 The Release notes that as of Dec. 31, 2018, there were 57 interval funds with about $29.7 billion in assets under management. In addition, as the Release states, “the 2017 Treasury Report recommended that the Commission review its rules regarding interval funds to determine whether more flexible provisions might encourage the creation of registered closed-end funds that invest in offerings of smaller public companies and private companies whose shares have limited or no liquidity.”

7 Note that the restriction on performance fees does not apply to “exempt reporting advisers,” which include, among others, certain venture capital managers and private fund advisers who manage less than $150 million in assets from a place of business in the United States.

8 Pursuant to Rule 205-3 of the Advisers Act, a qualified client must generally have at least $1 million in assets under management with the adviser immediately after entering into an investment advisory contract, or the adviser must reasonably believe the investor has a net worth (together with assets held jointly with a spouse) of more than $2.1 million exclusive of the value of their primary residence.

Live Blogging: IA Interpretive Release – rollovers/low cost products

Sarah mentions that the fiduciary duty applies to advice re. rollovers and to prospective clients. In terms of satisfying the fiduciary standard of care, merely selecting the lowest cost product is not sufficient. With respect to the duty of loyalty, informed consent can be explicit or implicit and need not be in writing. However, such conflicts may be of such a nature that full and fair disclosure may not be enough.

Live Blogging: Investment Adviser (IA) Interpretive Release

Sara Crovitz is now discussing the Investment Adviser Interpretive Release. She notes the IA release applies to all clients, both retail and institutional. The scope of the fiduciary relationship can be shaped by the agreement between the customer and adviser. She mentions that the adviser could not waive its fiduciary duties, regardless of sophistication of the customer.

Live Blogging: Reg BI – “best interest”

Larry emphasizes that the SEC opted not to define “best interest,” but instead sprinkled guidance on the contours of “best interest” throughout Reg. BI. The concept of best interest will be principles-based, and not a bright-line test. There is not a per se prohibition against conflicts of interest. Crucially, however, the broker’s interests can’t be placed ahead of the retail investor’s interests.

Live Blogging: Reg BI – “recommendation”

Larry notes that “recommendation” is not defined in Reg BI. Ultimately, turns on whether communication could be reasonably be viewed as a call to action and implicit hold recommendations. It does not include: general financial/investment information, general descriptive information re. retirement plans, asset allocation models, certain interactive tools, advertising/marketing.