Three SEC Enforcement Actions Illustrate the Increasingly Quantitative Analysis Used to Enforce Rules and Verify Disclosures

The SEC’s Division of Examinations (Examinations) has evolved over time to be a large, expert-driven team with revamped technology to efficiently oversee a broad swath of managers. Simultaneously, the types of deficiencies targeted by Examinations have also evolved. Previously, there was a larger focus on whether adequate policies and disclosures existed – i.e., fund managers having the bones of an effective compliance program. Now, the SEC is focused on whether fund managers are successfully applying those tools to different data-related areas (e.g., fee and expense allocations; performance advertising; etc.). That shift was apparent in three recent SEC enforcement actions against fund managers for improper fee and expense allocations that resulted in violations of Sections 206(2) and 206(4) of the Investment Advisers Act of 1940. When coupled with the proposed private fund reforms and other recent SEC guidance, the enforcement actions show the Commission is prepared to put muscle behind its rules – and fund managers are expected to as well. This article analyzes the facts and deficiencies that prompted the three SEC enforcement actions, and includes commentary from several industry experts about the SEC’s approach and key takeaways for improving managers’ compliance efforts. See “How Fund Managers Can Use Technology to Transform and Streamline Complex Legal Operations: One Manager’s Example” (Nov. 5, 2019); and “OCIE Director Marc Wyatt Details Use of Technology and Coordination With Other Agencies to Execute OCIE’s Four-Pillar Mission” (Nov. 3, 2016).

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