As previously described, the Securities and Exchange Commission has, as mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act, adopted a rule to exclude “family offices” from the definition of “investment adviser” under the Investment Advisers Act of 1940, as amended (the “Rule”).
We previously discussed the SEC’s adoption of new rules with respect to exemptions from investment adviser registration. The new rules replace the old “private adviser exemption” with a new set of exemptions. One of the new exemptions—actually an exception from the definition of “investment adviser”—is for entities that are “family offices” as defined in the new rules.
The SEC has recently indicated that it may well delay, to the first quarter of 2012, the date by which certain exempt investment advisers will have to register with the SEC and certain SEC-registered advisers will have to switch to state registration.
The SEC continues to face a daunting task to propose, adopt and implement various rules to effect the changes in the status of investment advisers required by the Dodd-Frank Act. Those required changes include:
- The deletion of the so-called “private adviser” exemption in Section 203(b)(3) of the Investment Advisers Act and the adoption of new exemptions for advisers to family offices, venture capital funds and private funds of less than $150 million, with the result that more advisers will be required to register; and
- Switching “mid-sized” advisers, which generally have between $25 million and $100 million in assets under management, from registration with the SEC to registration with the states.
The Dodd-Frank Act contemplates those changes to occur by July 21, 2011. The SEC indicated that it expects to complete and adopt final rules regarding those changes by that date, but that it is considering permitting investment advisers affected by those changes to wait until the first quarter of 2012 to register with the SEC or to switch from SEC-registration to state-registration, as the case may be.
OUR TAKE: The delay in the compliance date(s) appears likely, so that investment advisers affected by those changes will have more time to comply with the final rules, when adopted by the SEC. Nevertheless, investment advisers that are likely to be affected by the changes should be prepared to review the final rules promptly and then work diligently to prepare and make the necessary filings.
As contemplated by the Dodd-Frank Wall Street Reform and Consumer Protection Act, the SEC proposed a new rule this week that may affect some advisers to family investment portfolios. A provision in the Dodd-Frank Act, set to take effect on July 21, 2011, exempts a “family office” from registration under the Investment Advisers Act of 1940. The SEC’s proposed rule would define “family office” to include only those offices that provide financial services to a single family. Importantly, any office providing investment advice to more than one family would not be exempted under the proposed rule. The SEC has requested comments on the rule by November 18, 2010.
For additional information on the SEC’s proposed rule, see our Public Securities Alert titled “SEC Proposal Affecting Family Investment Portfolios.”
OUR TAKE: If you currently manage an investment portfolio for one or more wealthy families, you should consult the SEC's proposed rule to determine whether your activities would fall within the new exemption from the Investment Advisers Act.