Statement on Private Fund Advisers
Aug. 23, 2023
Today, the Commission is considering final rules related to private fund advisers. I am pleased to support this adoption because, by enhancing advisers’ transparency and integrity, we will help promote greater competition and thereby efficiency in this important part of the markets.
Private funds and their advisers play a significant role for investors and issuers. They play an important role in nearly every sector of the capital markets. On one side are the funds’ investors, such as retirement plans or endowments. Standing behind those entities are millions of investors like municipal workers, teachers, firefighters, professors, students, and more. On the other side are issuers raising capital from private funds, ranging from startups to late-stage companies.
After the 2008 financial crisis, Congress understood the important role that private funds and advisers play. In the Dodd-Frank Act of 2010, Congress effectively required most private fund advisers to register with the Securities and Exchange Commission. Congress also gave the Commission specific new authorities under the Investment Advisers Act of 1940 to prohibit or restrict advisers’ sales practices, conflicts, and compensation schemes. This built upon our existing authorities to regulate advisers with respect to their books and records as well as with respect to fraudulent, deceptive, or manipulative practices, among others.
In addition, Congress mandated in 1996 that, in our rulemaking, the Commission must consider efficiency, competition, and capital formation in addition to investor protection and the public interest.
Importantly, Congress did not cabin either of these provisions—the Dodd-Frank reforms or the 1996 requirements to consider efficiency, competition, and capital formation—only to retail investors. Thus, consistent with our mission and Congressional mandate, we advance today’s rules on behalf of all investors—big or small, institutional or retail, sophisticated or not.
First, the rules will increase transparency and comparability in funds’ quarterly statements to investors. This will apply to advisers’ fees (such as management fees, performance fees, and portfolio investment fees), expenses, and performance metrics.
Second, the rules will bring greater transparency to investors regarding preferential treatment, often arranged through side letters. Under the rules, advisers will be able to continue to offer side letters to fund investors, but only if the material economic terms of those agreements are disclosed in advance and all other terms subsequently are disclosed to all investors in that fund. With regard to preferential treatment for redemptions and portfolio holdings information, if such preferential treatment would have a material negative effect on other investors, advisers will be able to offer such terms if also offered to all investors in that fund.
Third, the rules will prohibit an adviser from charging to the fund fees and expenses related to investigations that result in a court or government authority sanctioning the adviser for violating the Advisers Act. Such activity is contrary to public interest and investor protection. Further, the rule will restrict a limited number of other named activities (such as an adviser borrowing from a fund they advise) by prohibiting them unless the adviser provides disclosure, and, in some cases, receives investor consent.
Fourth, the rules will require advisers to obtain a fairness or valuation opinion when the adviser directs a fund to sell assets to another fund that the adviser also advises. This will help address potential conflicts of interest that may emerge when an adviser may profit at the expense of one fund’s investors because the adviser is advising funds on both sides of a transaction.
Fifth, to benefit market integrity, the rules will require an annual audit of private funds conducted consistent with audits under the existing Advisers Act custody rule.
Finally, today’s adoption includes amendments regarding books and records to help ensure compliance for all advisers.
In finalizing today’s rule, we benefitted from public feedback on our proposal.
First, for example, as detailed in the release, the final rule was revised from the proposal to allow for more flexibility to offer preferential treatment through side letters so long as they’re disclosed and in some cases the preferential treatment is offered to all investors. Second, the prohibition on reimbursement for examination costs was revised to be permitted as long as it’s disclosed. Third, certain activities that would have been prohibited under the proposal are now being permitted in the adopting release so long as the adviser gets consent from investors in that fund. For example, reimbursement for investigation costs would be allowed other than those that result in sanctions for violations of the Advisers Act. Fourth, in addressing comments on our proposal, the adopting release no longer prohibits advisers from seeking indemnification for negligence.
Further, in response to commenters, the final release includes a legacy provision with regard to preferential treatment and restricted activities. This legacy provision provides that advisers would not need to renegotiate limited partnership agreements even if such agreements otherwise would have been covered by the preferential treatment and restricted activity provisions.
Lastly, the annual audit requirement can be satisfied using requirements consistent with the current custody rule, rather than through a new set of requirements as proposed. Given this, earlier today, the Commission reopened for public comment our February 2023 safeguarding proposal.
Today’s final rules will promote private fund advisers’ efficiency, competition, integrity, and transparency. That benefits investors, issuers, and the markets alike.
I’d like to thank the members of the SEC staff who worked on these final rules, including:
- William Birdthistle, Sarah ten Siethoff, Melissa Harke, Adele Murray, Marc Mehrespand, Tom Strumpf, Tim Dulaney, Trevor Tatum, Shane Cox, Robert Holowka, and Neema Nassiri in the Division of Investment Management;
- Meridith Mitchell, Natalie Shioji, Jeff Berger, Robert Bagnall, and Amy Scully in the Office of the General Counsel;
- Jessica Wachter, Ross Askanazi, Alexander Schiller, Charles Woodworth, Justin Vitanza, Lauren Moore, Michael Davis, Kevin Polzien, Daniel James Chapman, and Ralph Bien-Aime in the Division of Economic and Risk Analysis;
- Brandon Figg and Rolaine Bancroft from the Division of Corporation Finance;
- Christopher Mulligan and Daniel Faigus in the Division of Examinations;
- Kimberly Frederick and Nikolay Vydashenko in the Division of Enforcement;
- Paul Munter, Natasha Guinan, Diana Stoltzfus, Jonathan Wiggins, Anita Doutt, Gaurav Hiranandani, Shehzad Niazi, Steven Kenney, Erin Nelson, and Taylor Pross in the Office of the Chief Accountant; and
- Paul Gumagay, Kathleen Hutchinson, and Morgan Macdonald in the Office of International Affairs.
 Section 913(g)(2) of the Dodd-Frank Act added section 211(h) to the Advisers Act.
 See, e.g., Advisers Act sections 206 and 204.
 The adopting release states the SEC’s existing view that seeking indemnification for an adviser breaching its federal fiduciary duty operates as a waiver and is invalid under the Advisers Act.