SEC FY 2022 Enforcement Review: Lessons When Preparing for 2023 and Exam Trends to Monitor (Part Two of Two)

Coming off a record-breaking year, the SEC’s Division of Enforcement (Enforcement) is poised to dive into another year of aggressive activity. Following its issuance of an array of proposed regulations that impact the private funds industry, the SEC has signaled that fund managers should expect intense scrutiny in 2023. Potential substantive areas of interest based on 2022 enforcement efforts and industry rumblings include electronic communications; the new marketing rule; and environmental, social and governance disclosures. Beyond preparing for substantive areas of focus, fund managers also need to be cognizant of trends in how the SEC is undertaking its enforcement and examination efforts and, perhaps just as importantly, why. For example, fund managers should expect the high penalties and increased use of sweeps in the SEC’s 2022 enforcement actions to continue in 2023, as well as a new potential emphasis on admissions of wrongdoing. This two-part article series performs a deep dive of key SEC enforcement actions in 2022 and uses lessons therefrom – based on insights from two former Co‑Chiefs of Enforcement’s Asset Management Unit, Julie M. Riewe and Adam Aderton – to highlight what fund managers can expect in 2023. This second article highlights notable SEC examination tactics and substantive areas of focus that managers should monitor in 2023, along with offering tips for how PE sponsors can proceed. The first article analyzed prominent SEC actions in 2022 that are relevant to PE sponsors. See “The Continuing Trend – and Potential Ramifications – of Increasing Private Fund Manager Obligations” (Sep. 20, 2022).

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