Latest updates

Division of Investment Management eases compliance deadline for new ADV filing requirement
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • September 05 2017

Currently pending amendments to Form ADV have a compliance date of October 1 2017 and, as of that date, an adviser filing an initial Form ADV or an amendment to an existing Form ADV must use the revised Form ADV. The staff of the Division of Investment Management recently gave some breathing room to advisers who do not have enough information to respond to new questions required by the recent amendments to Form ADV.

Access to capital and liquidity
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • August 29 2017

The Security and Exchange Commission's Division of Economic and Risk Analysis recently presented a report to Congress regarding the effects of the Dodd-Frank Act on access to capital for consumers, investors and businesses, and market liquidity. Although the report is principally focused on liquidity, it does provide some interesting statistics regarding the primary issuance of equity securities.

Congresswoman Waters introduces Bad Actor Disqualification Act
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • August 22 2017

The ranking member of the House Committee on Financial Services, Congresswoman Maxine Waters, recently introduced the Bad Actor Disqualification Act 2017. This draft legislation directs the Securities and Exchange Commission to implement more rigorous and public processes for granting waivers that restore certain benefits to bad actors. These benefits include reduced oversight, reduced disclosure requirements and limited liability.

SEC chair speaks at Centre for Capital Markets Competitiveness
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • August 15 2017

Securities and Exchange Commission Chair Jay Clayton recently spoke at the US Chamber of Commerce Centre for Capital Markets Competitiveness. During the panel, Clayton discussed a variety of issues, including bad actors and retail fraud, enforcement, proxy reports and disclosure effectiveness, company lifecycles, the effectiveness of the US capital markets, compliance costs and cybersecurity.

SEC permits draft registration statements for all initial public offerings and direct listings
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • July 25 2017

The Securities and Exchange Commission (SEC) recently announced that the Division of Corporation Finance will permit all companies to submit draft registration statements relating to initial public offerings for review on a non-public basis. All issuers may submit a registration statement in draft form for an initial registration, as well as for offerings made within the first year after a company has become an SEC reporting company.

Confidential submissions for all issuers
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • July 11 2017

The Securities and Exchange Commission (SEC) recently announced a new policy that essentially extends the confidential submission accommodation made available to emerging growth companies to all issuers. As of July 10 2017, the SEC will review a draft initial Securities Act registration statement and related revisions on a non-public basis.

FINRA T+2 rules approved
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • June 06 2017

The Financial Industry Regulatory Authority (FINRA) recently announced the Securities Exchange Commission's approval of a variety of its proposed rule amendments relating to the upcoming move of the US securities markets to the T+2 settlement cycle. FINRA has also issued an investor alert to help to explain to investors the impact of the upcoming market-wide changes.

A trio of FINRA notices focused on capital formation issues
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • May 30 2017

The Financial Industry Regulatory Authority (FINRA) recently released for comment three regulatory notices that propose amendments to various FINRA rules affecting capital formation. This initiative is part of the comprehensive self-evaluation and improvement initiative that FINRA announced several months ago called the FINRA 360 initiative. The initiative, FINRA's recent request for comment on its engagement efforts and these regulatory notices certainly reflect a new tone.

SEC provides relief from enforcement actions regarding certain portions of Conflict Minerals Rule
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • May 23 2017

The District Court for the District of Columbia recently entered a final judgment in National Association of Manufacturers v Securities Exchange Commission (SEC), affirming the prior holding of the US Court of Appeals for the District of Columbia that the so-called 'Conflict Minerals Rule' violates the First Amendment. The SEC has since issued guidance on the effect of this decision.

SEC approves FINRA's rules to protect seniors from financial exploitation
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • May 09 2017

The Securities and Exchange Commission recently approved the adoption of a new Financial Industry Regulatory Authority rule which, among other things, permits brokers to place holds on disbursements of funds or securities from the accounts of "specified adult" customers. This includes those 65 and older or those 18 and older who the broker "reasonably believes has a mental or physical impairment that renders that individual unable to protect his or her own interests".

Traffic Monsoon limits bounds of Morrison
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • May 02 2017

The US District Court for the District of Salt Lake City recently granted the Securities and Exchange Commission's request for a preliminary injunction against Traffic Monsoon after complaining that its operation as a web traffic exchange violated the Exchange Act. This represents the first time that a US district court has affirmatively held that Section 929P(b) of the Dodd-Frank Act supersedes Morrison v National Australia Bank Ltd.

SEC adopts T+2 settlement cycle for securities transactions
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • April 25 2017

The Securities and Exchange Commission recently adopted an amendment to Rule 15c6-1 under the Securities Exchange Act to shorten the standard settlement cycle for most broker-dealer transactions from three business days after the trade date to two business days. This is designed to enhance efficiency, reduce risk and ensure a coordinated and expeditious transition by market participants to the shortened standard settlement cycle.

FINRA proposes changes to private placement filer form
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • April 11 2017

The Financial Industry Regulatory Authority (FINRA) recently filed with the Securities and Exchange Commission proposed changes to the private placement filer form that FINRA members must complete when submitting private placement filings. The proposed changes will assist FINRA in evaluating the private placement activities of its members and assessing whether members are conducting a reasonable investigation for private placements in which they participate.

Capital formation bills approved by house and Senate committees
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • April 04 2017

A number of bipartisan bills designed to promote capital raising for companies were recently approved by the House Financial Services Committee and the Senate Committee on Banking, Housing and Urban Affairs. The approved bills include the Fair Access to Investment Research Act 2017, the Supporting America's Innovators Act 2017 and the Securities and Exchange Commission Overpayment Credit Act.

SEC grants limited relief from custody rule for advisers relying on clients' standing letters of instruction
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • March 21 2017

In a letter to the Investment Adviser Association, the staff of the Division of Investment Management said that investment advisers acting pursuant to a standing letter of instruction or other similar asset transfer authorisation (SLOA) established by a client with a qualified custodian will be deemed to have custody of client assets for Custody Rule purposes. Nonetheless, the staff will not recommend enforcement action if an adviser, acting pursuant to an SLOA, did not obtain a surprise examination of custody accounts.

Failure to follow compliance policies in connection with ETF sales leads to SEC sanctions
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • March 07 2017

A recent cease-and-desist order from the Securities and Exchange Commission illustrates the types of activity and compliance issue that should be causes for concern for registered investment advisers (RIAs) when recommending non-traditional exchange traded funds. The order stated that the RIA wilfully violated the anti-fraud provisions of the Advisers Act and the requirements to maintain policies and procedures designed to prevent violations of the act.

Court of appeals upholds SEC's backtesting finding
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • February 14 2017

In a recent case, a former investment adviser lost a petition to review and vacate a Securities and Exchange Commission (SEC) administrative law judge's decision relating to the improper use of backtested information. The case is an illustration of how the improper presentation of backtested information can lead to trouble under the SEC's rules and regulations.

Enforcement focus on advisers' 'cherry-picking' continues
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • February 07 2017

​The Securities and Exchange Commission (SEC) recently banned the managing member and chief compliance officer of a registered investment adviser from the securities industry for illegally 'cherry-picking' investments among the adviser's managed accounts. The SEC has alleged that the principal made more than $1.3 million in profits from cherry-picking stocks to be allocated to his account versus client accounts.

SEC approves NSCC and NYSE T+2 rule proposals
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • January 31 2017

The Securities and Exchange Commission (SEC) recently approved the National Securities Clearing Corporation's (NSCC's) proposed rule change to accommodate a second business day after the trade date (T+2) settlement cycle. The technical rule changes will help to support the NSCC's prompt and accurate clearance and settlement of securities transactions made by its members. The SEC also approved NYSE Arca, Inc's proposed rule change to accommodate a T+2 settlement cycle.

DTC announces new eligibility procedures for Section 871(m) transactions
Morrison & Foerster LLP
  • Capital Markets
  • USA
  • January 24 2017

The Depository Trust Company (DTC) recently adjusted its eligibility procedures to comply with the Internal Revenue Code. For securities to become and remain DTC eligible securities, issuers must now comply with the new procedures. An officer of the issuer must attest to the applicability of compliance and issuers must provide the DTC with dividend equivalent payments.