June 2024 update: SEC private fund advisers rules overturned
On June 5, 2024, a panel of the U.S. Court of Appeals for the 5th Circuit ruled to vacate the Securities and Exchange Commission (SEC) Private Fund Advisers; Documentation of Registered Investment Adviser Compliance Reviews final rules from Aug. 23, 2023, in a 3-0 decision. Affected rules for private fund advisers include:
- Restricted activities
- Preferential treatment
- Audit requirements
- Quarterly statements
- Adviser-led secondaries
Those private fund advisers with $1.5 billion or more in private fund assets under management would have needed to comply with the restricted activities, preferential treatment, and adviser-led secondaries rules by Sept. 14, 2024, while the compliance date for all other private fund advisers would have been March 14, 2025. Finally, the compliance date for the audit requirements and quarterly statement rules would have been March 14, 2025, for all private fund advisers.
The court’s decision also affects the portions of the final rules that were amendments to existing rules (for example, compliance rule and books and records rule), including those that were already in effect. The court ruled that the final rules exceeded the SEC’s statutory authority, which means the SEC was not authorized to issue the final rules. Absent any further action, the 5th Circuit’s decision will vacate the final rules on July 29, 2024.
Additional regulatory uncertainty exists because the 5th Circuit ruling might indirectly affect other pending SEC rule proposals. For example, the Safeguarding Adviser Client Assets rule proposal, which was reopened for comment when the SEC issued the final private fund advisers rules, relies on a statutory authority similar to the SEC authority asserted in the now vacated private fund advisers rules. In addition, the ruling might affect how the Division of Examinations executes on its 2024 priorities, which include examinations of investment advisers to private funds.
We will keep you informed as developments occur.
SEC rules impose significant new requirements on all private fund advisers. Here’s a structured implementation approach to help private equity groups comply.
Private fund adviser rules adopted by the Securities and Exchange Commission (SEC) in 2023 under the Investment Advisers Act of 1940 impose significant new audit, disclosure, and reporting requirements on all private funds, including private equity funds. After determining which of the specific requirements and compliance deadlines apply to them, fund leaders will need to identify the necessary controls, policies, and procedures and then launch a structured implementation strategy for timely compliance.
Following are some challenges to compliance as well as some practical steps that private fund managing partners, advisers, and executive team members can take to begin developing an implementation approach.