Three Types of SEC Examinations of Fund Managers and What Disclosures to Investors They Trigger (Part Two of Three)

One of the most stressful periods for any fund manager is when the SEC approaches it, sometimes without notice, to conduct an examination of its policies and practices. While navigating that encounter unscathed is the first priority for every fund manager, it is important to also be mindful of whether and how that examination needs to be disclosed to current or prospective investors. In that context, it is important for fund managers to properly consider all the contractual, statutory, legal and interpersonal factors that weigh on that decision. See our two-part series “Current SEC Examination Practices and Issues”: Part One (Dec. 20, 2018); and Part Two (Jan. 10, 2019). This second article in a three-part series outlines the differences between sweep, routine and cause examinations by the SEC, as well as when they necessitate disclosure to investors. The first article detailed five sources of a fund manager’s potential obligation to disclose the existence or results of an SEC examination. The third article will set forth various considerations that bear on whether a fund manager must disclose a deficiency letter from the SEC, as well general tips for communicating deficiencies to investors. For more on communicating with investors, see our two-part series “How Are Your Peers Responding to the Most Intrusive Requests From Private Fund Investors?”: Part One (Mar. 26, 2019); and Part Two (Apr. 2, 2019).

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