Proposals would impose new disclosure requirements designed to enhance the SEC’s ability to monitor the industry.
On May 20, the US Securities and Exchange Commission (SEC) unanimously approved proposals intended to further modernize and enhance its monitoring and regulation of the asset management industry. In addition to providing more accurate and up-to-date information for investors, the proposed forms, rules, and other actions would improve the SEC’s use of technology for risk monitoring and overseeing registered funds and advisers. These proposals stem from an ongoing effort across the various divisions within the SEC and have been hinted at for the last several months by SEC Chair Mary Jo White. The modernization proposals can be grouped into two categories: those applicable to investment companies and those applicable to investment advisers.
This proposal consists of four key elements:
Under the Registered Funds Proposal, the enhanced data reporting will be made on two new forms: Form N-PORT and Form N-CEN. Funds currently report portfolio holdings quarterly through shareholder annual and semi-annual reports and on Form N-Q for the other two quarters. As proposed, Form N-PORT would replace Form N-Q and would be filed monthly. To avoid frontrunning concerns, only Form N-PORT information reported for the third month of a fund’s fiscal quarter would be publicly available, and such information would not be made public until 60 days after the end of the fund’s fiscal quarter.
Currently, registered funds report census-type information (used by the SEC Staff in its oversight functions) semi-annually through Form N-SAR. If the Registered Funds Proposal is adopted, Form N-SAR will be replaced by Form N-CEN, the new form N-CEN being filed annually. If Forms N-PORT and N-CEN are adopted as proposed, Forms N-Q and N-SAR would be rescinded. In addition to differences relating to required content and filing frequency, both Forms N-PORT and N-CEN will be designed in “structured data format,” which could allow investors and regulators to aggregate and analyze information.
As noted by Chair White in recent speeches referenced above, fund use of derivatives and liquidity management are of particular interest to the SEC Staff. Although Chair White has acknowledged that some funds use derivatives to manage risks or limit exposure to a certain market, sector, or security, she cautioned that such instruments often result in leveraged investment exposures and the potential for problematic future obligations. In an effort to better understand these risks, the Registered Funds Proposal, if adopted, will require funds to disclose certain metrics regarding risk exposures. It will also introduce changes to a fund’s financial statements, including standardized derivatives schedules and new financial notes disclosure requirements (e.g., additional detail on a fund’s securities lending activities).
Finally, the Registered Funds Proposal seeks to amend Rule 30e-3 under the Investment Company Act of 1940 to permit (but not require) a fund, after satisfying certain conditions, to transmit shareholder reports by posting them to its website. Because physical (“hard copy”) delivery of shareholder reports is currently required (unless a shareholder affirmatively elects to receive electronic copies), the SEC Staff hopes that the proposed “access equals delivery” change will more effectively and efficiently provide important information to investors. In remarks regarding the proposals, Commissioner Aguilar urged the SEC Staff to be cognizant of the potential that investors who have only online access may not read a report, noting that shareholder involvement in proxy voting decreased after the implementation of similar “e-proxy rules.” Commissioner Aguilar stated his hope that safeguards, redundancies, and other features will be considered to ensure that investors actually read shareholder reports posted online.
This proposal would require investment advisers to report certain new categories of information, particularly with respect to separately managed accounts and the types of assets and derivatives held in those accounts. Specifically, the Adviser Proposal would amend Part 1A of Form ADV to require information with respect to types of assets, derivatives positions, and borrowings associated with an adviser’s separately managed accounts. The amended Form ADV also would require advisers to identify any custodians that account for at least 10% of “separately managed account regulatory assets under management,” as well as the amount of the adviser’s regulatory assets under management attributable to separately managed accounts held by such custodian. These proposed amendments are intended to promote a better understanding by the SEC and investors of the risk profile of individual advisers and the industry as a whole. As such, Commissioner Stein requested that commenters provide feedback as to whether the new information being requested is appropriate for risk management purposes, or if other information would better serve this purpose.
In addition, the Adviser Proposal would codify SEC Staff guidance issued in 2012 relating to “umbrella registration” for groups of related advisers to private funds and amend Rule 204-2 under the Investment Advisers Act to require retention of performance calculations and communications related to performance that are distributed to any person. This increases the burden currently imposed by Rule 204-2, which requires retention only when such a distribution has been made to 10 or more persons.
The Registered Funds Proposal may be viewed here and the Adviser Proposal may be viewed here. We expect to issue a more detailed report on the reforms during the comment period for the proposed rules, which will be the 60-day period after publication in the Federal Register.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Barry N. Hurwitz
John J. O’Brien
 Commissioner Aguilar pointed out that this monthly reporting requirement would be consistent with the reporting obligations of money market funds.