Latest on Navigating the SEC’s Examination Process and Avoiding Referral to the Division of Enforcement (Part One of Two)

The SEC has been ratcheting up the pressure on private funds with an explosion of new and revised rules applicable to the industry, as well as a more aggressive stance to overseeing firms’ compliance efforts. The regulatory ground shifts quickly, however, making it difficult to anticipate how the efforts of the SEC’s Division of Examinations (Examinations) and Division of Enforcement (Enforcement) may be influenced by the changing landscape. Those issues were addressed at the 2023 Investment Management Conference hosted by the Investment Company Institute (ICI) in a panel moderated by Christopher Michailoff, senior counsel at TD Securities USA LLC, which featured Andrew Dean and Corey Schuster, Co‑Chiefs of Enforcement’s Asset Management Unit (AMU); Vanessa L. Horton, Associate Regional Director of Examinations; and Dabney O’Riordan, partner at Quinn Emanuel. This first article in a two-part series details the AMU’s priorities and how that division determines penalties; offers insights on the examination process; identifies criteria for Examinations to refer cases to Enforcement and how managers can mitigate that possibility; and considers the value for fund managers of self-reporting, self-remediation and cooperation. The second article will recount the SEC’s stance on CCO and GC accountability, as well as identify certain substantive areas of focus for the Commission (e.g., implementing the new marketing rule and the safekeeping of off-channel communications). For coverage of a previous ICI panel, see our two-part series on compliance challenges: “Useful Anecdotes from PE Sponsor CCOs” (May 17, 2022); and “Dealing with Ongoing Changes at the SEC” (May 24, 2022).

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