All posts by Clifford E. Kirsch, Editor

Eversheds Sutherland With more than 25 years of experience, Cliff regularly counsels clients on the design and distribution of investment products including wrap-fee programs and other advisory products, mutual funds, bank collective investment funds and insurance products. He also focuses on issues related to the design and implementation of compliance programs at financial services firms.
Compliance, Enforcement, Standard of Care

Recent SEC Settlement Suggests CCOs Have Target on Their Backs

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From Brian Rubin and Adam Pollet in Corporate Compliance Insights:

The SEC’s prosecution of chief compliance officers remains a fraught and controversial topic. A recent SEC enforcement settlement with a CCO and a registered investment adviser could raise even more questions about the role of CCOs and what standards the SEC uses in sanctioning them.

Read why here.

Compliance, Enforcement, Regulatory, Standard of Care

Proposed bipartisan legislation aims to clarify the crypto regulatory landscape

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New, sweeping bipartisan legislation proposes to define the contours of regulating digital assets and the crypto industry. Among other things, the bill:

  • Gives the CFTC primary jurisdiction over digital assets and exchanges, limiting the SEC’s ability to regulate the industry;
  • Calls for federal and state cooperation in monitoring and regulating the various aspects of the industry, including tax and money transmitter issues; and

Includes a number of measures designed to address cybersecurity and ESG concerns.

Read more here.

Compliance, Regulatory, Standard of Care

California and New Jersey setting the pace in nationwide race to write the rules for crypto

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Last week, California and New Jersey both upped the ante in the nationwide race to write the rules for the crypto industry:

  • The California Department of Financial Protection and Innovation published an Invitation for Comments related to issues impacting blockchain and crypto businesses.
  • The New Jersey State Assembly Financial Institutions and Insurance Committee approved bills that would require licenses for digital assets businesses and establish a crypto regulatory scheme.
  • Players in the blockchain and digital asset industry should take advantage of opportunities to help shape the evolving regulatory landscape, such as by responding to the Invitation for Comments.

Read more here. 

Compliance, Enforcement, Regulatory

DOJ brings first-ever NFT “insider trading” case

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The US Department of Justice and Federal Bureau of Investigation announced the first-of-its kind indictment of an “insider trading” scheme involving non-fungible tokens (or NFTs).

  • A former employee of an online marketplace for NFTs allegedly used confidential business information for personal financial gain.
  • The charged individual used new blockchain technologies to conceal the proceeds of the alleged illicit activity.
  • The DOJ brought charges without characterizing NFTs as securities.

Read more here. 

Compliance, Regulatory, Standard of Care

SEC proposes amendments to expand the reach of the fund “Names Rule,” with a specific focus on ESG

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On May 25, 2022, the US Securities and Exchange Commission (the SEC) proposed amendments (the Proposal) to Rule 35d-1 (the Rule) under the Investment Company Act of 1940, as amended (the 1940 Act). The Proposal comes over 20 years after the original adoption of the Rule and seeks to greatly expand the scope of the Rule in the name of investor protection and modernization.  The Proposal includes the following primary amendments to the Rule:

  • Expansion of the 80% policy requirement to include funds with names that suggest the fund focuses on investments that have, or whose issuers have, “particular characteristics.”
  • A requirement that any unlisted closed-end funds or BDCs that are required to have an 80% policy under the Rule, adopt such policy as a fundamental policy.
  • Identification of particular circumstances under which a fund may depart from its 80% policy and specific time frames for getting back into compliance.
  • Establishment of the “notional amount” as the appropriate value for a derivative instrument used by a fund when calculating compliance with a fund’s 80% policy.
  • Clarification of what the SEC deems a materially deceptive and misleading use of environmental, social and governance (ESG) terminology.
  • A requirement that any terms used in a fund’s name that suggest an investment focus or a tax-exempt fund, must be consistent with those terms’ plain English meaning or established industry use.
  • Modernization of shareholder notice requirements.
  • Establishment of certain recordkeeping requirements related to a fund’s 80% policy.

Read more here.