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Colorado Private Fund Adviser Exemption

As of July 15, 2017, the Colorado Division of Securities (“CDS”) adopted Rule 51-4.11(IA) of the Code of Colorado Regulations which exempts certain investment advisers whose sole clients are qualifying private funds from having to register with the state (the “Colorado Private Fund Adviser Exemption”). Investment advisers that meet the requirements of the Colorado Private Fund Adviser Exemption can file as an exempt reporting adviser (“ERA”) with the CDS. Previously, such investment advisers located in Colorado were required to register with the state. The Colorado Private Fund Adviser Exemption generally mirrors the SEC’s private fund adviser exemption and similar exemptions of other states; however, there are some important differences as discussed below.

Colorado Private Fund Adviser Requirements Generally.

In order to take advantage of the Colorado Private Fund Adviser Exemption, an investment adviser must:

  • provide investment advice solely to one or more “qualifying private funds” as defined by the SEC (generally, any private fund not registered under the Investment Company Act of 1940, as amended, (e.g., a 3(c)(1) or 3(c)(7) fund));
  • not be subject to any “bad actor” disqualification events under Regulation D (this does not apply specifically to SEC ERAs);
  • file a report (generally, Part 1A of the Form ADV) and any amendments thereto required of an SEC ERA; and
  • pay the fees prescribed by the Colorado securities commissioner.

Additional Requirements for Certain 3(c)(1) Fund Advisers

Investment advisers to 3(c)(1) funds that are not “venture capital funds” (as defined by the SEC) (such 3(c)(1) fund, a “Non-VC 3(c)(1) Fund”) must also satisfy the following conditions with respect to each Non-VC 3(c)(1) Fund:

  • such Non-VC 3(c)(1) Fund’s securities may only be beneficially owned by persons who, after deducting the value of the primary residence from such person’s net worth, meet the qualified client definition (which deviates from the accredited investor threshold adopted by some states);
  • disclose the services, duties and other material information affecting the rights and responsibilities of each beneficial owner, if any; and
  • obtain and deliver annual audited financial statements to the Non-VC 3(c)(1) Fund’s investors.

Relief from “Gatekeeper” Requirement

Generally, Colorado investment advisers to pooled investment funds must engage an independent representative (a CPA or attorney) as a “gatekeeper” to review all fees, expenses and capital withdrawals from the pooled investment fund. However, an investment adviser availing of the Colorado Private Fund Adviser Exemption is not subject to this requirement and, thus, is not burdened with the obligation or expense to engage such third-party gatekeeper.

Transitioning to Registration and SEC Eligibility

Investment advisers no longer eligible for the Colorado Private Fund Adviser Exemption must register with the state within 90 days of such ineligibility. Moreover, once an adviser’s assets under management equals or exceeds $110 million as of an annual updating amendment to Form ADV, such adviser must file as an SEC ERA or register with the SEC, as applicable.

Conclusion

The Colorado Private Fund Adviser Exemption is a welcomed and useful exemption for Colorado private fund advisers. If you would like assistance in filing for the exemption or have any questions, please contact Scott Kitchens (415-762-2847) or Tony Wise (415-762-2863) at Cole-Frieman & Mallon LLP’s Denver office.

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Cole-Frieman & Mallon is a boutique law firm focused on providing institutional quality legal services to the investment management industry. Please contact us if you would like more information on this topic.

Cole-Frieman & Mallon 2020 Q3 Update

October 16, 2020

Clients, Friends, Associates:

We hope you have had an enjoyable summer. While the third quarter is typically quieter than the second quarter from a compliance perspective, we continue to see meaningful enforcement actions pursued by regulatory authorities. As we move into the fourth quarter, we want to provide an overview of items we hope will help you stay up to date with regulatory requirements.

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SEC Matters

SEC Expands the “Accredited Investor” and “Qualified Institutional Buyer” Definitions. On August 26, 2020, the Securities and Exchange Commission (“SEC”) adopted amendments to the “accredited investor” definition under Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”), which include additional categories of natural persons or entities who may qualify as accredited investors. Notably, certain of the new categories will enable natural persons to qualify as accredited investors on the basis that they have the requisite ability to assess an investment opportunity based on measures of professional knowledge, experience or certifications, irrespective of whether these persons meet any income or net worth thresholds. The SEC also amended the “qualified institutional buyer” definition under Rule 144A of the Securities Act to include institutional investors contained in the accredited investor definition so long as they meet the $100 million in securities owned and invested threshold. The amendments were published in the Federal Register on October 9, 2020 and will become effective within 60 days after such publication (i.e., December 8, 2020). Managers should review their fund documents to determine which documents will need to be updated to include the amendments to the accredited investor definition. Our recent blog post addresses FAQs we have received on the updated definition.

Private Funds Risk Alert. The SEC’s Office of Compliance Inspections and Examinations (“OCIE”) published a Risk Alert identifying commonly observed key deficiencies in OCIE’s examinations of advisers to private funds. Notably, OCIE found investors in private funds may have paid more in fees and expenses as a result of these deficiencies, which included inaccurate allocations of fees and expenses, failures to value client assets in accordance with valuation policies and failures to track, apply and/or calculate fees received from portfolio companies (whether or not such fees were used to offset management fees received by the adviser). OCIE also highlighted inadequate conflicts of interest disclosures, finding that many advisers did not provide investors with sufficient detail regarding conflicts related to allocation of investments among the adviser’s clients and conflicts related to investments in the same portfolio company made by multiple clients of an adviser and co-investments. Managers should review their allocation policies as well as disclosures regarding potential allocations of investments among clients to ensure that adequate and clear disclosures are included. 

Reg BI FAQ Updated with Guidance for Broker-Dealers When Using “Adviser/Advisor”. In response to confusion raised by broker-dealers, the SEC has indicated in a handful of recent updates to its FAQs regarding Regulation Best Interest (Reg BI) that a broker-dealer generally may not use the term “adviser” or “advisor” to refer to itself unless it is registered as an investment adviser (an “RIA”), subject to certain limited exceptions. The SEC’s responses included examples of common situations when broker-dealers typically may refer to themselves as “advisers” or “advisors” when not so registered, including when such broker-dealer is acting in a role defined by statute such as a municipal advisor or commodity trading advisor. Reg BI’s disclosure obligation requires in-scope broker-dealers and investment advisers to disclose to retail customers all material facts relating to the nature and terms of the relationship between them as well as all material facts relating to conflicts of interest that are associated with the recommendation. As discussed in our previous update, compliance with Reg BI was required as of June 30, 2020. Given the nascence of the Reg BI requirements we expect the SEC to continue updating the Reg BI FAQs to address other common confusion or Reg BI deficiencies identified in examinations of investment advisers and broker-dealers.

SEC Charges CA Adviser for Misappropriating Client Funds. In a recent enforcement action, the SEC charged a California adviser with violating the antifraud provisions of the Securities Exchange Act of 1934, as amended, the Securities Act and the Investment Advisers Act of 1940, as amended (the “Advisers Act”). The SEC alleges that during the adviser’s association with other SEC-registered firms, the adviser acted alone and through his company to misappropriate client funds (including the sale of client securities and diverting the proceeds for his use) and make other material misrepresentations and omissions. The SEC’s complaint further alleges that the adviser actively took steps to conceal his misconduct from existing and future advisory clients, including forging a letter from his client indicating that the client had gifted him the misappropriated funds. The adviser further failed to disclose to prospective clients that his affiliation with one of the SEC-registered firms had been terminated for stealing client funds. While the alleged conduct is particularly egregious, this action serves as a reminder that investment advisers owe their advisory clients a fiduciary duty to place the clients’ interest ahead of their own and to disclose all material facts to the clients about their investment. 

SEC Charges Fund Adviser with Antifraud Violations. The SEC was granted emergency relief to stop an RIA (and its sole individual owner) from continuing to offer interests in a private fund it managed and destroying documents which may contain evidence of fraudulent conduct. In soliciting investors for the fund, the SEC alleges that the RIA not only misrepresented the fund’s past performance, the amount of assets managed and the owner’s experience as a portfolio manager, but also falsified brokerage records and investor account statements, and sent fake audit opinions to investors and third parties. As an example of the fraudulent conduct, the SEC’s complaint alleges that a document provided to the fund’s investors and potential investors showed 37 months of positive monthly performance when the fund actually had approximately 26 months of negative monthly performance during the applicable time period. The SEC charged the RIA and its owner with violating the antifraud provisions of federal securities laws and charged the individual owner with aiding and abetting the RIA’s violations of the Advisers Act. The SEC is seeking injunctions, disgorgement of allegedly ill-gotten gains with prejudgment interest and financial penalties.

SEC Brings Action Against Manager for Expense Disclosure and Allocation Failures. In a recent enforcement action demonstrating the SEC’s continued scrutiny of the adequacy of fund managers’ expense disclosures and expense allocation procedures, the SEC censured a Florida-based RIA for failing to properly disclose and allocate to the applicable funds the expenses of “third party tasks” performed by the RIA “in-house.” The SEC cited the firm for failing to properly allocate these expenses between the applicable funds and co-investment vehicles managed alongside the funds, resulting in the funds being charged more than their pro rata share of the costs and expenses of reimbursing the firm for the third party tasks. In violation of the Advisers Act, the SEC found that the firm failed to adopt any written policies and procedures reasonably designed to properly disclose, calculate and allocate such that third party task expenses. Managers should review their fund documents and consider whether they sufficiently disclose expenses borne by the applicable fund as well as whether the manager has adequate policies and procedures in place regarding allocating expenses between the applicable fund and other funds or clients of the manager.

SEC Charges NY Firm and CCO for Compliance Failures. The SEC recently censured a dually-registered investment adviser and broker-dealer firm and its chief compliance officer (“CCO”) for failing to adhere to written policies and procedures implemented to remedy deficiencies discovered in a previous examination of the firm’s compliance program. The SEC further found that the CCO not only failed to conduct the monthly compliance reviews required under the program, but also altered monthly review documents that were provided to the SEC in a subsequent examination to give the appearance that the reviews had been conducted during the period covered by the SEC’s examination. To settle the charges, the firm and CCO paid a penalty of $1,745,000 and agreed to cease and desist from committing future violations of the antifraud provisions of the Advisers Act. The CCO was also barred from associating with any broker-dealer or investment adviser, subject to a right to reapply for association in the future, and prohibited from serving or acting as an employee or similar of an advisory board, investment adviser or depositor of, or principal underwriter for, a registered investment company, or an affiliated person of such investment adviser, depositor or principal underwriter.

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Offshore Matters

Cayman Islands Amends the Private Funds Law. On July 7, 2020, the Cayman Islands Monetary Authority (“CIMA”) further amended the Cayman Islands Private Funds Law 2020 (the “PF Law”) to expand the definition of a private fund (“Private Fund”), thereby extending the scope of the PF Law to additional closed-ended entities which must now register with CIMA. The revised definition provides that a Private Fund is any company, unit trust or partnership that offers or issues (or has issued) investment interests to investors with the aim of providing such investors profits or gains from investments; provided that, (i) the investors do not have day-to-day control of the entity’s investments and (ii) the investments are managed by or on behalf of the entity’s operator. The PF Law also specifies narrow categories of persons or any non-fund arrangements that are not included in the Private Fund definition and, thus, do not need to register with CIMA. Entities that now fall under the Private Fund definition were required to register with CIMA by August 7, 2020. Managers of Cayman Islands closed-ended vehicles that have not registered with CIMA should discuss this matter with counsel. 

BVI Financial Services Commission Issues Guidance on Digital Assets. On July 13, 2020, the British Virgin Islands (“BVI”) Financial Services Commission (“FSC”) issued guidance clarifying the regulatory framework applicable to digital assets. The guidance, which is part of the FSC’s burgeoning regulation of digital assets and investment activities related to digital assets, clarifies the types of digital asset products that may be captured under the Securities and Investment Business Act, 2010 (“SIBA”), either (i) when the products are initially issued or (ii) when the products are in the hands of a holder or the subject of a regulated investment activity after issuance. The guidance provides an illustrative table of the types of digital asset products that may be regulated under SIBA, although additional analysis may be required for certain types of digital asset products, such as digital assets that create an entitlement to shares, interests or debentures. The FSC is allowing a 6-month compliance period from the date of publication during which any relevant entity may submit an application for the applicable license or certificate. If a digital asset product falls within the definition of an “investment” under SIBA, persons carrying on an investment business activity with respect to such digital asset products will need to be licensed with the FSC by January 13, 2021. Managers should review and consider whether they are or may be engaged in any regulated investment activities in or from within the BVI such that a license from the FSC is required.

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Digital Asset Matters

INX Launches First SEC-Approved Blockchain IPO. INX Ltd., a Gibraltar-based company (“INX”), launched the first SEC-registered token IPO after the SEC declared that the registration statement relating to the offering of INX’s security tokens was effective on August 20, 2020. INX will allow investors to purchase INX tokens with certain cryptocurrencies and stablecoins as well as the U.S. dollar as it raises funds to further develop a multiservice digital asset platform aimed at providing its customers with a single entry-point for the trading of cryptocurrencies, security tokens and their derivatives. INX notes that INX tokens have both security and utility benefits for their holders: (i) as a security, by entitling the holders to a mandatory profit share of INX’s profit and a liquidation preference and (ii) as a utility, by providing a discount on transaction fees charged via INX’s platform when used to pay the fees and when used for staking on INX’s platform. 

ConsenSys Acquires Quorum, JP Morgan’s Blockchain Platform. ConsenSys, a blockchain software company, recently announced its acquisition of Quorum, an enterprise-variant of the Ethereum blockchain developed by J.P. Morgan. Through the acquisition, ConsenSys seeks to increase the availability of Quorum’s features and capabilities, such as digital asset functionality and document management, by offering a range of products, services and support for Quorum, which will become interoperable with other blockchain products offered by ConsenSys. J.P. Morgan, which also made a strategic investment in ConsenSys in connection with the acquisition, will become a customer of ConsenSys and will utilize the advanced features and services ConsenSys will provide for Quorum. J.P. Morgan’s development of Quorum and its partnership with ConsenSys are additional examples of the growing institutional adoption of blockchain technology and acceptance of digital assets. 

SEC Charges Virginia-based Issuer of Unregistered ICO. In a recent enforcement action, the SEC found that a company and its CEO conducted an unregistered initial coin offering (“ICO”) in connection with its development of a platform to link employers and freelancers. The company raised approximately $5 million in the ICO, selling 125 million tokens to approximately 1,500 investors. The SEC found that the tokens were “securities” under the Howey Test since an investor would have had a reasonable expectation of profit based upon the company’s efforts. Therefore, the tokens could have only been sold through a registered offering or under an exemption from registration requirements. The order also describes the company’s and the CEO’s misrepresentations related to the technical capabilities of the platform and the stability and security of the tokens. The company was ordered to disgorge the monies raised in the ICO and to pay pre-judgment interest of over $600,000. The CEO was individually required to pay a penalty of $150,000, and was barred from serving as an officer or director of a public company and from participating in future offerings of digital asset securities.

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CFTC Matters

CFTC Prohibits Regulation 4.13 CPO Exemptions to Certain Persons Subject to Statutory Disqualifications. The CFTC approved a final rule amendment to Regulation 4.13 of the Commodity Exchange Act of 1934, as amended (the “CEA”), which prohibits a person from claiming an exemption from registration as a commodity pool operator (“CPO”) pursuant to Regulation 4.13 if the person or any of its principals are subject to any of the statutory disqualifications listed in Section 8a(2) of the CEA (the “Covered Statutory Disqualifications”). Previously a person claiming an exemption under Regulation 4.13, which includes the often-used “de minimis exemption” pursuant to Regulation 4.13(a)(3), was not required to represent that it was not subject to a Covered Statutory Disqualification to qualify for such exemption. Notably, the changes are not applicable to family office CPOs claiming the exemption under Regulation 4.13(a)(6). The amendment became effective on August 4, 2020. After the effective date, persons who wish to claim an exemption under Regulation 4.13 will need to represent that neither they nor their principals are subject to the Covered Statutory Disqualifications. For a CPO relying on an exemption prior to the effective date, the CFTC has determined not to mandate compliance until March 1, 2021, which is also the deadline for CPOs to file an annual reaffirmation notice for continued reliance on an exemption. As such, firms that wish to claim or reaffirm an exemption under Regulation 4.13, with the exception family office CPOS, will need to determine whether any of their principals have a Covered Statutory Disqualification in their background.  

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Other Matters

Form BE-180 Requirement for U.S. Managers and Funds. The Bureau of Economic Analysis at the U.S. Department of Commerce (the “BEA”) requires certain U.S. Financial Service Providers (including investment advisers, funds and their general partners) that engaged in a financial services transaction with a foreign person during their 2019 fiscal year to file a report on Form BEA-180 (the “Form”). This requirement will apply to any of our U.S.-based clients that are investment advisers or general partners to an offshore fund, and certain other clients as well. The Form is a 5-year benchmark survey and the deadline to file the Form electronically is October 30, 2020.

The Form requires additional transaction-specific information from Financial Service Providers that either sold financial services to foreign persons in excess of $3,000,000, or purchased financial services from foreign persons in excess of $3,000,000. Please note that sales and purchases are calculated separately, meaning if a Financial Service Provider exceeds the threshold with respect to sales but not purchases, the requirement to provide additional transaction-specific information on the Form would only apply with respect to sales transactions.

Please see our previous post for more information as to who is considered a “Financial Service Provider” and what types of transactions are covered, as well as common scenarios that may apply to some of our clients.

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CFM Events

In early September our own Bart Mallon hosted a discussion forum with panelists from tax, compliance and legal firms which explored issues currently affecting digital asset managers, including among others DeFi, custody and regulatory developments. You can find a useful recap of the event on our blog. Later in the month, Cole-Frieman & Mallon LLP also co-sponsored a very well received fireside chat with Matthew Goetz of BlockTower Capital, in the second of an ongoing series of CoinAlts Fund Symposium webinars.

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Compliance Calendar Please note the following important dates as you plan your regulatory compliance timeline for the coming months.

DeadlineFiling
September 30Review holdings to determine Form PF filing requirements.
October 13Amendment to Form 13H due if there were changes during Q3.
October 15SEC deadline to file 3rd Quarter 2020 Form PF for quarterly filers (Large Liquidity Fund Advisers), through PFRD.
October 15*Extended deadline to file Reports of Foreign Bank and Financial Accounts (FBAR).
October 30Form BE-180 due for managers and funds filing electronically to report sales or purchases to foreign persons for covered financial transactions, through BEA eFile
October 30Registered CPOs must distribute (i) monthly account statements to pool participants (pools with net asset value of more than $500,000) and (ii) quarterly account statements to pool participants (pools with net asset value less than $500,000 or CPOs claiming the 4.7 exemption).
October 30Registered investment advisers must collect access persons’ personal securities transactions.
November 14National Futures Association (“NFA”) deadline to file Form PR for registered CTAs. through NFA EasyFile.
November 16Investment adviser firms may view, print and pay preliminary notice filings for all appropriate states, through IARD.
November 16SEC deadline to file Form 13F for 3rd Quarter of 2020.
November 16*Cayman Islands FATCA and CRS reporting deadlines.
November 29Form CPO-PQR due for CPOs, through NFA EasyFile.
December 14Deadline for paying annual IARD charges and state renewal fees, through IARD.
December 31Cayman funds regulated by CIMA that intend to de-register (i.e. wind down or continue as an exempted fund) should do so before this date in order to avoid 2021 CIMA fees.
PeriodicFund Managers should perform “Bad Actor” certifications annually.
PeriodicForm D and Blue Sky filings should be current.
PeriodicCPO/CTA Annual Questionnaires must be submitted annually, and promptly upon material information changes, through the NFA Annual Questionnaire system.
*Extended deadline pursuant to COVID-19 pandemic-related relief

Please contact us with any questions or for assistance with any of the above topics.

Sincerely,

Karl Cole-Frieman, Bart Mallon, Lilly Palmer, David Rothschild, & Scott Kitchens

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Cole-Frieman & Mallon LLP is a premier boutique investment management law firm, providing top-tier, responsive, and cost-effective legal solutions for financial services matters. Headquartered in San Francisco, Cole-Frieman & Mallon LLP services both start-up investment managers, as well as multi-billion-dollar firms. The firm provides a full suite of legal services to the investment management community, including hedge fund, private equity fund, venture capital fund, mutual fund formation, adviser registration, counterparty documentation, SEC, CFTC, NFA and FINRA matters, seed deals, hedge fund due diligence, employment and compensation matters, and routine business matters. The firm also publishes the prominent Hedge Fund Law Blog, which focuses on legal issues that impact the hedge fund community. For more information, please add us on LinkedIn and visit us at colefrieman.com

Mandatory BEA Form BE-180 Benchmark Survey of Financial Services Transactions – Deadline Fast Approaching

The Bureau of Economic Analysis at the U.S. Department of Commerce (the “BEA”) requires certain U.S. Financial Service Providers (including investment advisers, funds and their general partners) that engaged in a financial services transaction with a foreign person during their 2019 fiscal year to file a report on Form BEA-180 (the “Form”). This requirement will apply to any of our U.S.-based clients that are investment advisers or general partners to an offshore fund, and certain other clients as well. Some of our clients may have been notified to complete this Form directly by the BEA, however even clients who have not been contacted may be required to submit the Form.

The Form is a 5-year benchmark survey and the deadline to file the Form electronically is October 30, 2020. Please note the deadline of September 30, 2020 for paper filers has passed. The Form requires additional transaction-specific information from Financial Service Providers that either sold financial services to foreign persons in excess of $3,000,000, or purchased financial services from foreign persons in excess of $3,000,000. Please note that sales and purchases are calculated separately, meaning if a Financial Service Provider exceeds the threshold with respect to sales but not purchases, the requirement to provide additional transaction-specific information on the Form would only apply with respect to sales transactions.

“Financial Service Provider” is broadly defined by the BEA and includes domestic investment advisers, funds and their general partners. Examples of covered financial services transactions include brokerage services, financial management services and security lending services. A direct investment in a foreign person is not a covered financial services transaction, however brokerage fees to a foreign person tied to underwriting the transaction, for example, do qualify as a covered financial service transaction if the purchase occurred in 2019. More information about each category of covered financial services transactions may be found in Section VI of the Form’s instructions.

If the BEA has contacted a Financial Service Provider directly, it must complete the Form even if it has no transactions to report.

We have outlined below a few common scenarios that may apply to our clients:

Management Company

A domestic investment adviser or general partner that receives fees (including management and/or performance fees) from an offshore investment fund must complete the Form. Depending on the offshore fund structure, a management company may receive a fee either from the offshore fund itself, or directly from the underlying foreign investors in the offshore fund. In either example, the offshore fund and the underlying foreign investors, as applicable, are “foreign persons” and the investment adviser’s services are “financial services transactions” for purposes of the Form. Management companies should only report fees received from foreign investors in a U.S. fund if the fee is charged directly to a foreign investor, rather than charged to the U.S. fund itself.

Domestic Fund

If a domestic fund has engaged in any covered financial services transactions with foreign persons, the fund may also need to complete the Form.

We would like to note for our clients that entities in a parent-subsidiary relationship may be able to file as a consolidated domestic U.S. enterprise. The parent-subsidiary relationship turns on whether one entity owns more than 50% of the other’s voting securities, and the instructions specifically state that for a limited partnership, the general partner is presumed to control and have a 100% voting interest unless there is a clause to the contrary in the limited partnership agreement. As such, it is likely that many of our clients will be able to report as a consolidated enterprise, completing just one Form for the general partner and domestic fund, as applicable (and filing a separate Form on behalf of the investment adviser in bifurcated management company structures).

Failure to submit the Form or comply with any of its reporting requirements may result in a civil penalty between $2,500 and $25,000 and/or injunctive relief. Further criminal penalties may arise upon willful violation of the reporting requirements under this Form.

The Form must be submitted via the BEA’s e-filing system here, and the paper copy can be found here (for reference only). Please contact us if you have any questions as to your requirements.

Expanded Accredited Investor Definition FAQs

Frequently Asked Questions About New Accredited Investor Definition

There has been much discussion about the recent amendments to the “accredited investor” definition adopted on August 26, 2020 (the “Amendments”) by the Securities and Exchange Commission (“SEC”). We have provided a more detailed overview of all the Amendments here, but wanted to address many of the common questions we are receiving from clients specifically regarding the Amendments to the accredited investor definition. Please send us any other questions and we will update the below as they come in…

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Will a person who is a contractor to the management company or fund qualify as an accredited investor now?

The Amendments provide that a “knowledgeable employee” (as defined in Rule 3c-5(a)(4) of the Investment Company Act of 1940) of a 3(c)(1) or 3(c)(7) fund will now be considered an accredited investor. We have been asked by a few clients whether this expanded definition includes contractors. Because the definition of a knowledgeable employee does not include contractors and has not been altered by the Amendments or otherwise, contractors do not currently qualify as accredited investors under this expanded definition.

What about the professional certification designation?

A natural person holding at least one professional certification or designation or credential in good standing from a qualifying educational institution will now be considered an accredited investor.

To determine whether an investor meets this criteria, the SEC will consider: (i) whether the certification, designation or credential results from an examination or series of examinations administered by a self-regulatory organization, other industry body or accredited educational institution; (ii) whether the examination(s) are reliably designed to demonstrate an individual’s comprehension and sophistication in the areas of securities and investing; (iii) whether an investor obtaining such certification, designation or credential can reasonably be expected to have sufficient knowledge and experience in financial and business matters to evaluate the merits and risks of a prospective investment; and (iv) whether it is publicly made available by the self-regulatory organization or other industry body (or is otherwise independently verifiable) that an investor holds the certification, designation or credential.

The professional certifications, designations or credentials currently recognized by the SEC to satisfy this criterion will be posted on the SEC’s website. One important item to note is that an investor does not need to practice in the field(s) related to the certification, designation or credential to meet the good standing requirement, except to the extent that continued affiliation with a firm is required to maintain such certification, designation or credential.

What has prompted this modernization of the accredited investor definition?

Whether an investor meets the definition of an accredited investor has been one of the most important considerations when determining whether an investor is eligible to invest in private capital markets. The primary purpose of this qualification has been to determine whether an investor based solely on an investor’s income or net worth (because they presumably would be able to withstand a loss in the investment). The effects of the limited tests have prevented many investors from partaking in private capital markets, regardless of their actual financial sophistication. Thus, after years of discussions, the SEC has expanded the accredited investor definition to provide new measures of determining financial sophistication that more holistically determine financial sophistication. These Amendments should decrease the economic barrier-to-entry in our private capital markets and result in the participation of newly qualified accredited investors with more diverse backgrounds.

When do the Amendments become effective?

The Amendments will become effective 60 days after publication in the Federal Register. As of the date we are posting this FAQ, the Amendments have not yet been posted to the Federal Register.

What kind of legal documents need to be updated to reflect the Amendments?

The accredited investor definition is used in many different legal documents in many different contexts so the the exact document that will need to be revised or updated will depend on the facts of the situation.

In the private fund context, the Amendments will generally only trigger necessary updates to the private fund subscription documents. While the “old” language is still accurate, it does not encompass all potential accredited investor categories so the language could still be used once the Amendments are effective but will not encompass all categories of potential accredited investor.

Once the Amendments are posted to the Federal Register, we will reach out to our clients to discuss updating their subscription documents.

Do the Amendments change the type of investor a California Exempt Reporting Adviser (“CA ERA”) may charge performance fees from?

No. The private fund adviser exemption in California, which is available only to advisers who provide advice solely to “qualifying private funds”, only permits CA ERAs to charge performance fees to “qualified clients”, as defined in the Investment Advisers Act of 1940. The Amendments do not change this limitation.

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Cole-Frieman & Mallon is a boutique law firm focused on providing institutional quality legal services to the investment management industry. For more information on this topic, please contact us.

Recap of Crypto Discussion Forum

On September 2nd we held our crypto discussion forum where we discussed legal, tax and compliance issues related to the digital asset space. The below is a quick recap the event from panelist Justin Schleifer of Aspect Advisors. We’ll keep updating everyone through this blog on future events as well.

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Thank you for attending our “Cryptocurrency and Digital Asset Forum: Trends in Legal, Tax, and Compliance” webinar last week. I would also like to extend many thanks to my fellow panelists, Ryan David Williams of Ashbury Legal and Nick Cerasuolo of Blockchain Tax Partners, and to Bart Mallon of Cole-Frieman & Mallon for hosting.

We had a very interesting and lively interactive discussion about putting crypto investments to work through yield and lending, and DeFi implications including market-making, governance and custody issues.

Here are my favorite tidbits from the various speakers:

Each state has their own regulations as well, and everyone is on different parts of the learning curve. People have to address the nuances of each individual state. States may not agree with the idea of a custodian. DeFi is just way out there for them. They’re still on this idea of what is a custodian in the crypto space? Just getting over that hurdle has proven to be very difficult. – Bart

With the advent of crypto/blockchain, we almost went back in time because are used to dealing with USD. It’s obvious when something is taxable. Crypto took us back to the stone age where we’re back to barter model; property for property (BTC for ETH). You have transactions that don’t involve fiat at all. Tax event triggers are traps for the unwary. It’s not always obvious when a transaction is taxable. – Nick

Insider trading is absolutely an issue in this industry, and it’s getting more nuanced. Firms in the venture capital space get involved with companies on working on their protocols and Dapps. You can very well come in contact with all types of MNPI, so both sides must evaluate what is material or public. You have to restrict yourself in certain areas and not commit to certain trading activities. – Justin

There was a fantasy that once you achieve decentralization, laws are gone. This is an ethos that a decentralized exchange doesn’t need KYC/AML. We are now dispelled of that notion (i.e. the SEC went after the founder of a crypto exchange). The CFTC has also said they will go after software developers. This is the concept of causing a violation of securities law. The expectation of profits is based on the efforts of others. The manager is doing all the work, but what do we do when there is no sponsor and the work is done by community participants? We haven’t finalized this yet. ETH is officially decentralized, so it doesn’t make sense to apply traditional securities laws. – Ryan

If you (or your friends or colleagues) would like to review any of the webinar content, please email Amanda Brown for a link to the recording. If you have any questions about any of the above topics, please reach out to any of our panelists.

We hope you enjoyed this event and if you have any feedback, we would love to hear from you. We look forward to seeing you at our next event!

Best regards, Justin Schleifer

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Bart Mallon is a founding partner of Cole-Frieman & Mallon LLP.  Cole-Frieman & Mallon LLP has been instrumental in structuring the launches of some of the first cryptocurrency focused hedge funds. If there are any questions on this post, please contact Mr. Mallon directly at 415-868-5345.

Crypto Discussion Forum Tomorrow!

Tax, Compliance and Legal for the Digital Asset Space – Ask Your Questions

Tomorrow, September 2nd, at 10am PT we will be hosting an open question and answer discussion forum on issues affecting the digital asset space. We have a number of interesting topics to explore from the legal, tax and compliance side including:

  • Yield and lending trends and consequences
  • DeFi, DeFi, DeFi
  • Market Making
  • Custody
  • Regulatory update and what this means for different groups (managers, stakers, custodians, etc)

Speakers include:

  • Bart Mallon, Cole-Frieman & Mallon
  • Ryan David Williams, Ashbury Legal
  • Justin Schleifer, Aspect Advisors
  • Nick Cerasuolo, Blockchain Tax Partners

To register for forum, please go here.

To submit a question, please go here

Look forward to seeing you then!

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Bart Mallon is a founding partner of Cole-Frieman & Mallon LLP. Cole-Frieman & Mallon is a boutique law firm focused on providing institutional quality legal services to the investment management industry. For more information on this topic, please contact Mr. Mallon directly at 415-868-5345.

SEC Expands Definition of Accredited Investor

New definition to be effective before end of year

On August 26, 2020, the SEC Commissioners voted to adopt amendments to expand the definition of “accredited investor” and “qualified institutional buyer”. Historically the test for accredited investor status was only based on a person’s income or net worth but has now been expanded in a limited fashion to include persons with certain financial designations. The amendments will become effective 60 days after publication in the Federal Register, which is expected within 1-2 weeks. Below we have highlighted the applicable updates and we will continue to provide information on this topic as it develops.

For more information, please also see the SEC Press Release and Fact Sheet.

Accredited Investor Definition Update

Individuals

With respect to individuals, the following will now also be accredited investors:

(1) individuals with certain qualifying professional certifications, designations and other credentials (currently includes Series 7, Series 65, and Series 82 licensed individuals); and

(2) individuals who are “knowledgeable employees” (which expands the definition from only certain directors, executive officers, etc).

For individuals, the amendments also clarify that natural persons may include the income from “spousal equivalents” for the purposes of calculating joint income and net worth. “Spousal equivalent” is generally defined as a cohabitant occupying a relationship generally equivalent to that of a spouse. 

Entities

With respect to entities, the following will now also qualify as accredited investors:

(1) SEC and state-registered investment advisers;

(2) rural business investment companies;

(3) limited liability companies with total assets in excess of $5 million and not formed for the specific purpose of acquiring the securities offered;

(4) entities owning “investments,” as defined in Rule 2a51-1(b) of the Act, in excess of $5 million [note: the intent of this category (4) entities meeting an investments-owned test is to include Native American tribes and other federal, state, territorial, and local government bodies within the accredited investor definition]; and

(5) family offices with at least $5 million in assets under management and their family clients.

Qualified Institutional Buyer Definition Update

Along with the accredited investor update, the definition of “qualified institutional buyer” in Rule 144A will be updated to include entities and any institutional investors that meet the $100 million in securities owned and invested threshold. The scope of the new amendments include Native American tribes, governmental bodies, and bank-maintained collective investment trusts.  

Conclusion

While these changes are incremental rather than radical, they are a step in the right direction and hopefully portend further expansion of the definition to allow greater access to the private capital markets. Those parties (investment managers and private placement sponsors) who want to take advantage of the expanded definition will need to speak with legal counsel about updating applicable subscription documents. We will be providing further updates on timing and other matters as they develop.

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Bart Mallon is a founding partner of Cole-Frieman & Mallon LLP. Cole-Frieman & Mallon is a boutique law firm focused on providing institutional quality legal services to the investment management industry. For more information on this topic, please contact Mr. Mallon directly at 415-868-5345.

Cryptocurrency / Digital Asset Forum – Ask us your questions!

Open Forum on September 2nd for Legal, Tax & Compliance Questions

There are a ton of hot topics in the digital asset space right now – the price of Bitcoin, DeFi, staking, lending, venture capital, etc – and we want to answer your questions in a unique format where the experts answer your questions directly.  Our firm is teaming up with Asbury Legal, Aspect Advisors and Blockchain Tax Partners to host a live discussion where we will talk about what you want to talk about.

To register for webinar, please go here.

To submit a question, please go here

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September 2, 2020 10:00am Pacific / 1:00pm Eastern

The Host: Bart Mallon, Cole-Frieman & Mallon as Host

The Panel:

Ryan David Williams, Ashbury Legal

Justin Schleifer, Aspect Advisors

Nick Cerasuolo, Blockchain Tax Partners

Join us to get your questions answered by an expert panel during a Live Discussion. Experience a unique collaborative event to explore the latest developments in the Cryptocurrency and Digital Asset sector. Suggested topics for this session include (but are in no way limited to):

•    Putting Crypto Investments to Work:  Unlocking Full Potential Through Yield and Lending

•    DeFi Implications: Market-Making (Liquidity), Governance, and Custody

•    Evolving Landscape: Latest Products/Services, Regulations, and Enforcements

Submit your questions in advance and we’ll have answers prepared.   You’ll also be able to ask questions during the interactive discussion.  We’re excited to talk about anything you want!

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Bart Mallon is a founding partner of Cole-Frieman & Mallon LLP. Cole-Frieman & Mallon is a boutique law firm focused on providing institutional quality legal services to the investment management industry. For more information on this topic, please contact Mr. Mallon directly at 415-868-5345.

Sample NAV Trigger Waiver

Over the past few months, many of our hedge fund clients have breached default triggers in their counterparty agreements that are tied to a decline in net asset value (“NAV” resulting in a “NAV Trigger”). NAV Triggers are typically drafted to capture a month over month NAV decline of 15% to 20%, and sometimes that decline includes redemptions.

If you have an ISDA in place, a NAV Trigger will result in an Additional Termination Event (“ATE”) under your ISDA, and you are obligated to formally notify the dealer of that fact. Once notified, you should explicitly request that the dealer waive the ATE. A formal waiver should be in writing, should clearly state the facts that triggered the ATE, and should explicitly waive the dealer’s right to declare an Early Termination Date under the ISDA in respect of that ATE. Below, we have provided a sample waiver that any manager should feel free to use for their funds. Certain of the bracketed facts should be modified to fit a given fund’s particular circumstances, and defined terms should be changed to fit those found in your ISDA.

If you have any questions about the ATEs in your funds’ ISDAs, or about the ATE waiver, please contact us for assistance.

Other similar posts on this topic:

Monitoring NAV Triggers Amidst Volitility

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David Rothschild is a partner of Cole-Frieman & Mallon LLP and routinely focuses on ISDA matters. Cole-Frieman & Mallon is a boutique law firm focused on the investment management industry. For more information on this topic, please contact Mr. Rothschild directly at 415-762-2854.

Cole-Frieman & Mallon 2020 Q2 Update

July 15, 2020

Clients, Friends, Associates:

We hope that you are staying safe and healthy while finding ways to enjoy the summer. As you endeavor to re-establish your routine in our ever-changing “new normal,” we would like to highlight some items we hope will help you stay on top of the business and regulatory landscape in the coming months.

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SEC Matters

Compliance with Regulation Best Interest (Reg BI) was Required as of June 30, 2020. Reg BI established a “best interest” standard applicable to SEC-registered investment advisers (“SEC RIAs”), broker-dealers, and associated persons when making securities recommendations to retail customers. Moving forward, SEC RIAs with “retail customers” must file the new Form ADV, Part 3 (“Form CRS”) electronically via IARD in addition to providing the Form CRS to prospective and existing clients as well as posting the form on their official website. Also, broker-dealers with retail customers must file Form CRS electronically via Web CRD with the understanding that its Form CRS will be made publicly available through BrokerCheck.

The SEC’s Office of Compliance Inspections and Examinations (“OCIE”) has published Risk Alerts for Reg BI and Form CRS, shedding light on the practical considerations to be aware of during initial examinations following June 30, 2020. For further instructions, please see the SEC’s guidance in response to frequently asked questions on Form CRS. For more complete analysis as to how this new regulatory requirement may apply to you, please visit our LinkedIn page.

“Volcker Rule” Restrictions Eased. Five federal regulatory agencies, including the SEC and Federal Reserve Board, have approved the proposed changes to the “Volcker Rule” which are to take effect as of October 1, 2020. The new final rule effectively narrows the definition of covered funds and gives banks the green light to offer financial services to certain venture capital funds and engage in other activities that the original Volcker Rule was not intended to prohibit. Separately, regulators also relaxed margin requirements applicable to derivatives trades between affiliates.

SEC Turns an Eye Toward Business Continuity Plans (“BCPs”). In light of the widespread disruption caused by COVID-19, the SEC has been submitting requests for information to firms regarding their BCPs. Such information requests have included: (i) the firm’s formal BCP; (ii) company techniques and procedures tailored to address the continuity of operations specific to pandemics; (iii) cybersecurity policies and procedures applicable to remote working; and (iv) general inquiries regarding critical systems and operations impacted by the pandemic. It should be expected that regular examinations will involve a heightened focus on BCPs as well. Please contact us for further information or to request assistance in making sure your BCP is up to date.

Use of the Word “may” Could be Misleading. The SEC has maintained that the use of the word “may” in disclosures to investors can be considered misleading if the underlying conduct or condition is, in fact, actually occurring. The SEC demonstrated its commitment to this position in a recent enforcement action against the manager of a private equity fund which provided operational services to its portfolio companies for which the manager charged additional fees. The manager’s Form ADV disclosed that “under specific circumstances, certain [of the manager’s] operating professionals may provide services to portfolio companies that typically would otherwise be performed by third parties” and that the manager “may be reimbursed” for associated costs. The SEC reasoned that this method of disclosure did not sufficiently disclose the fact that the manager did perform such services and receive such compensation on a routine basis. The manager was ordered to pay approximately $1.5 million in disgorgement of fees plus interest and a $200,000 penalty. The action serves as a reminder to all managers that required disclosures must be routinely reviewed to ensure clear and complete descriptions of existing conflicts of interest.

SEC Proposes Modernized Framework for Fund Valuation. In April, the SEC proposed a new rule which will allow a fund’s board to delegate the determination of fair value to the fund’s investment adviser, subject to certain conditions. The new rule is aimed at clarifying how fund boards can meet their valuation obligations which require them to identify and address significant risks associated with fair value determinations; select, implement, and verify fair value determination methods; actively monitor any third-party services used; adopt and implement policies and procedures; and maintain certain records. 

SEC Brings Action Against Manager for Violation of the Custody Rule.  As a method of satisfying the “Custody Rule” (Rule 206(4)-2 of the Investment Advisers Act of 1940, as amended (the “Advisers Act”)), many managers of private funds rely on the “Audited Financials Alternative” which requires the delivery of audited financial statements to all limited partners of a fund within 120 days of the end of the fund’s fiscal year. In a recent enforcement action, the SEC censured a New Jersey-based manager and issued a $60,000 fine for violations of the Custody Rule which took place from 2014-2018 when the firm attempted to avail itself of the Audited Financials Alternative. In 2014 and 2015, the firm mailed the audited financial statements to investors 686 days and 927 days late, respectively; while in 2016-2018, the firm failed to engage an audit firm at all. In addition to these violations, the SEC also cited the firm for failing to implement reasonable policies and procedures aimed at preventing such violations of the Custody Rule.

SEC Charges Los Angeles Private Equity Firm with MNPI-Related Compliance Violations.  In a recent enforcement action, the SEC issued a stern reminder of the requirement under the Advisers Act that investment advisers must enact and follow written policies reasonably designed to prevent violations of the rules governing the use of material non-public information (“MNPI”), particularly in the case where an investment adviser maintains employee board representation on a public company in its investment portfolio. Despite the fact that the manager had written policies in place during the relevant time period to prevent misuse of MNPI, the SEC reasoned that such policies afforded the manager’s compliance staff too much discretion to be adequately enforced. The SEC ordered the payment of a $1 million penalty.

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Offshore Matters

Cayman Island Monetary Authority (“CIMA”) Provides Further Guidance on the Definition of a “Private Fund.” As discussed in our previous update, the Cayman Islands Private Funds Law 2020 (the “PF Law”) now requires any Cayman Islands closed-ended fund that falls under the definition of a private fund (“Private Fund”) to register with CIMA. On May 7, 2020, CIMA issued a notice clarifying such definition under the PF Law. Per CIMA’s new guidance, any “collective investment scheme” is considered to be a Private Fund if all of the following factors are “present or otherwise established”: (i) the undertaking does not have a general commercial or industrial purpose; (ii) the undertaking pools together funds gathered for the purpose of investment with the goal of creating pooled returns for investors; and (iii) the undertaking’s investors have no collective daily control. Notably, the fact that one or more investors exercises daily control over the undertaking does not establish that the undertaking is not a “collective investment scheme” and, thus the undertaking may well still qualify as a Private Fund that must register.

The notice also provides further guidance regarding the treatment of segregated portfolio companies, alternative investment vehicles, practical instructions on the CIMA registration process, as well as valuation and cash monitoring requirements applicable to Private Funds.

CIMA Publishes New Marketing Rules. Effective May 2020, CIMA enacted new rules governing the contents of the offering documents of mutual funds regulated under the Mutual Funds Law (2020 Revision) (“Regulated Mutual Funds”). CIMA published separate rules applicable to the contents of all marketing materials (including offering documents) of Private Funds registered under the Private Funds Law (2020 Revision) (“Registered Private Funds”) which apply prospectively as well as to the marketing materials of all Registered Private Funds with ongoing offerings. Since the new rules applicable to Regulated Mutual Funds and those applicable to Registered Private Funds each mandate a particular disclosure which must be included verbatim in the offering documents, all new offering documents (and all future updates to offering documents) of Regulated Mutual Funds and all marketing materials of Registered Private Funds will be impacted. Please contact us if you think you may be in need of an update to your offering documents or marketing materials.

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Digital Asset Matters

Coinbase Announces Agreement to Acquire Crypto Prime Brokerage Platform. Yet another indicator of the burgeoning demand for digital assets among institutional and professional investors, Coinbase announced its intention to buy Tagomi, a leading cryptocurrency brokerage platform. In addition to providing custody solutions and professional trading features, Tagomi provides its users access to 14 digital asset exchanges from a single account. The acquisition is aimed at creating a digital asset trading experience more aligned with the expectations of professional traders in equities and other traditional markets. The terms of the deal are yet to be announced as the acquisition is pending regulatory review.

SEC Charges San Jose-based Issuer of Unregistered ICO. A blockchain services start-up conducted an unregistered ICO in which it issued Consumer Activity Tokens (“CAT”) to approximately 9,500 investors between June and November of 2017. The SEC determined that the CAT were sold as investment contracts and, as such, were indeed “securities” under the Howey Test which can only be lawfully issued as part of a registered offering or pursuant to a valid exemption under the Securities Act of 1933, as amended. In support of its determination, the SEC’s order reasoned that the issuer’s offering materials (i) created a reasonable expectation by the investor of earning a future profit based on the issuer’s plans of development and marketing of the CAT protocol following the offering; and (ii) assured investors of the liquidity of the CAT on digital asset trading platforms. To settle the charges, the issuer has agreed to pay $25.5 million in disgorgement of funds raised in addition to pre-judgment interest of over $3 million and a penalty of $400,000.

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FINRA Matters

FINRA Shares Remote Working Best Practices.  In an effort to help firms navigate challenges associated with many of their employees working from home, FINRA’s recent Regulatory Notice provides guidance to brokerage firms regarding (i) operational considerations during the transition to a remote working model and (ii) maintenance of adequate supervision while doing so. The regulatory notice does not impose further obligations on FINRA regulated entities, but is meant to share best practices which have been and continue to be implemented by firms of all sizes. The notice provided tips and feedback on ways of assisting customers, providing additional support and communication to employees, and maintaining cybersecurity in this new environment. Additionally, the notice discussed methods of maintaining oversight of trading and staff communication with customers, as well as adjustments to ongoing branch inspection programs.

FINRA Warns of Increased Threat of Fraudulent Activity and Scams During COVID-19. The onset of significant economic disruption creates increased opportunities for fraudulent behavior. In a recent Regulatory Notice, FINRA outlined the following four frequently occurring scams: (i) fraudulent account openings and transfers of funds; (ii) firm impersonation schemes; (iii) false information technology inquiries; and (iv) email phishing scams. Most notably, FINRA reminds firms to examine their own compliance policies relating to the opening of accounts to ensure such policies meet the requirements of the following implicated FINRA Rules: 2090 (Know Your Customer), 4512 (Customer Account Information), and 3310 (Anti-Money Laundering Compliance Program). FINRA provides suggested best practices as to how to be a hard target against such behavior and also encourages firms to report any suspicious activity. 

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CFTC Matters

CFTC Extends Certain COVID-19 Relief Measures. No-action relief measures enacted by the CFTC during the first quarter of 2020 which were set to expire on June 30 have been extended in large part until September 30, 2020. Included in those extended relief measures are the measures applicable to members of designated contract markets and swap execution facilities, futures commission merchants (“FCMs”) and introducing brokers (“IBs”), floor brokers, retail foreign exchange dealers, swap dealers, swap execution facilities and designated contract markets. In CFTC Letter No. 20-19, the Division of Swap Dealer and Intermediary Oversight (“DSIO”) and the Division of Market Oversight (“DMO”) listed the specific relief measures which will not be extended including (i) audit trail and associated requirements applicable to members of designated contract markets; and (ii) requirements pertaining to the recording of voice communications applicable to swap execution facilities. The DSIO and DMO have also stated that affected market participants should reach out to the applicable contact person at each division with requests for specific relief which shall be considered on a case-by-case basis. Inquiries should be sent to Frank Fisanich, Chief Counsel, DSIO or Roger Smith, Special Counsel, DMO, as appropriate.

Further Relief Provided to FCMs and IBs. In CFTC Letter No 20-15, the DSIO has allowed eligible FCMs and IBs who have received loans under the Paycheck Protection Program, pursuant to the CARES Act, to add back certain amounts under covered forgivable loans when making net capital calculations. DSIO has also allowed FCMs and IBs to add back accrued annual FINRA assessment fees so long as such FCM or IB is a registered broker-dealer with the SEC, qualifies as a small firm as defined by FINRA, and is otherwise eligible for the add-back of accrued unpaid annual assessments per FINRA guidance.

CFTC Extends Phase 5 Compliance Date of Initial Margin Requirements for Uncleared Swaps. In light of continued COVID-19-related disruption, the CFTC has announced it has extended the deadline for compliance with the amended margin requirements for uncleared swaps as applicable to swap dealers and major swap participants for which there is no prudential regulator. The deadline for compliance has been extended a full year until September 20, 2021.

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Other Matters

Private Equity Industry Continues to Battle for Access to Defined Contribution Market. The private equity industry seems to have won a small victory in the form of an Information Letter from the Department of Labor which suggested that private equity investments could be used in multi-asset class investment vehicles such as target-date or target-risk funds. CFM’s own Bart Mallon was quoted in the article released by Barrons discussing this exciting new development which could one day lead to private equity investments being made from investors’ 401(k)s.

Enforcement of California Consumer Privacy Act (“CCPA”) Began July 1, 2020. The CCPA, which has been in effect since January 1, 2020, was not delayed beyond the scheduled enforcement date of July 1, 2020. The California Attorney General confirmed the enforcement date despite the formal request for an extension submitted by more than 60 businesses and trade groups led by the Association of National Advertisers due to COVID-19-related disruption. Please see our previous update for a more complete discussion of the CCPA and its implications for fund managers.

New York’s Stop Hacks and Improve Electronic Data Security Act (“SHIELD Act”) Fully Implemented as of March 21, 2020. The SHIELD Act, New York’s version of the CCPA, made several significant changes to the state’s data protection regime including: (i) expanded definitions of “private information” and covered “breaches”; (ii) increased scope of applicability of data protection laws to include any business that owns or licenses private information of a New York resident; and (iii) a requirement for companies to adopt a program of policies and procedures designed to protect the private information of individuals. Although the SHIELD Act’s data breach notification requirements have been effective since the fall of 2019, covered businesses were required to establish the requisite data protection program as of March 21, 2020.

Reminder: Sexual Harassment Training Requirement under California Law. California state law now requires that all employers with five or more employees provide company-wide sexual harassment training. The first training must be held by January 1, 2021 and thereafter must be held every two years. The law formerly only applied to employers with 50 or more employees but has been expanded under Senate Bill No. 778, which was approved by the governor of California on August 30, 2019.

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CFM Events

CoinAlts Webinar. In lieu of the CoinAlts Fund Symposium, the CoinAlts Webinar Series was held on May 14, 2020. The widely attended event featured updates and analysis of the latest trends in the digital asset space from Cynthia Pederson of Cohen & Co., Lewis Chong of Harneys, Matt Stover and Seth Altman of MG Stover, and our own, Bart Mallon. The event was capped with an enlightening Q&A session featuring Gary Newlin of MG Stover and Matt Perona of Polychain Capital. For a summary of the event, please contact us. On behalf of the CFM team, as well as our co-sponsors, we want to thank all who attended this iteration of the CoinAlts Webinar and we look forward to hosting you at the next installment. Please stay tuned for the announcement of the details of the next event and let us know if you have any specific questions or interesting topics you would like discussed.

Regulation Best Interest (Reg BI) Webinar with Aspect Advisors. CFM co-sponsored a live webinar with Aspect Advisors on May 28, 2020. The discussion covered practical, regulatory, and other considerations regarding Reg BI and the new Form CRS, as described earlier in this update. We would like to thank Justin Schleifer of Aspect Advisors for hosting and look forward to future events. Aspect Advisors is a modern regulatory consultant providing customized compliance solutions to entrepreneurs. The firm has a focus on fintech companies, broker-dealers, and investment managers (hedge fund, VC, PE, RIA, etc.).

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Compliance Calendar Please note the following important dates as you plan your regulatory compliance timeline for the coming months.

DeadlineFiling
June 30Deliver audited financial statements to investors (private fund managers to fund of funds, including SEC, state and CFTC registrants.
June 30SEC deadline for initial Form CRS (ADV Part 3) submission through IARD for SEC-registered investment advisers (if necessary).
June 30CIMA deadline for Cayman Island registered funds with a fiscal year end of December 31 to file the Fund Annual Return and audited financial statements.
June 30Deadline for making available AIFMD annual report for funds operating in or advertising in the EU (Alternative Investment Funds with a financial year ending on December 31).
July 10Review holdings to determine Form PF filing requirements.
July 15SEC deadline to file 2nd Quarter 2020 Form PF for quarterly filers (Large Liquidity Fund Advisers), through PFRD.
July 15*CFTC 1st Quarter extended deadline for CPOs to file Schedules A and B of CFTC Form CPO-PQR, through NFA EasyFile
July 20FINRA deadline to complete annual account Entitlement Certification through IARD (firms with more than one IARD user).
July 30Collect quarterly Transaction Reports from access persons for their personal securities transactions (SEC registered advisers).
July 30*Quarterly account statements due (CPOs claiming the 4.7 exemption). DSIO will not recommend an enforcement action against a CPO provided that the statements are distributed by August 14. 
July 30Deliver initial Form CRS (ADV Part 3) to clients qualifying as “retail investors” for SEC-registered investment advisers.
August 14SEC deadline to file Form 13F for 2nd Quarter of 2020.
August 14NFA deadline to file Quarterly Commodity Trading Advisor Form PR filing, through NFA EasyFile.
August 28SEC deadline to file 2nd Quarter 2020 Form PF filing for quarterly filers (Large Hedge Fund Advisers), through PFRD.
August 28CFTC deadline for CPOs to file Schedules A, B, and C of CFTC Form CPO-PQR, for 2nd Quarter of 2020, through NFA EasyFile.
September 18*Cayman Islands CRS reporting deadline. The deadline for reports under US FATCA has been extended to November 16, 2020.
October 9Review transactions and assess whether Form 13H needs to be amended.
October 15SEC deadline to file 3rd Quarter 2020 Form PF for quarterly filers (Large Liquidity Fund Advisers), through PFRD.
VariableDistribute copies of K-1 to fund investors.
Periodic FilingsForm D and Blue Sky filings should be current.
*Extended deadline pursuant to COVID-19 pandemic-related relief

Please contact us with any questions or for assistance with any of the above topics.

Sincerely,

Karl Cole-Frieman, Bart Mallon, Lilly Palmer, David Rothschild, & Scott Kitchens

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Cole-Frieman & Mallon LLP is a premier boutique investment management law firm, providing top-tier, responsive, and cost-effective legal solutions for financial services matters. Headquartered in San Francisco, Cole-Frieman & Mallon LLP services both start-up investment managers, as well as multi-billion-dollar firms. The firm provides a full suite of legal services to the investment management community, including hedge fund, private equity fund, venture capital fund, mutual fund formation, adviser registration, counterparty documentation, SEC, CFTC, NFA and FINRA matters, seed deals, hedge fund due diligence, employment and compensation matters, and routine business matters. The firm also publishes the prominent Hedge Fund Law Blog, which focuses on legal issues that impact the hedge fund community. For more information, please add us on LinkedIn and visit us at colefrieman.com