On December 19, 2018, the Securities and Exchange Commission (the “SEC”) proposed a new rule (Rule 12d1-4) intended to modernize and improve the regulatory framework for fund of funds arrangements (fund investing in shares of another fund). Currently, funds are required to rely on existing statutory exemptions or exemptive rules or seek exemptive relief prior to creating a fund of funds arrangement, resulting in unnecessary and avoidable costs and delays and an inconsistent regulatory framework. The proposed rule would permit registered investment companies (“RICs”) and business development companies (“BDCs”) to acquire the securities of any RIC or BDC in excess of the limits in Section 12(d)(1) of the Investment Company Act of 1940, as amended. RICs and BDCs relying on the proposed rule would need to comply with the following conditions:

  • RICs/BDCs holding more than 3% of a fund’s outstanding voting securities would be required to vote those securities in a prescribed manner and would be prohibited from redeeming more than 3% of the fund’s outstanding shares during any 30-day period.
  • RICs/BDCs would be required to evaluate the layering of duplicative or excessive fees associated with its investment in a fund and the complexity of the fund of funds arrangement (specific considerations would vary given the particular structure).
  • RICs/BDCs would be prohibited from creating three-tier fund of funds arrangements, except in certain limited circumstances.

Unfortunately, the proposed rule does not address industry concerns relating to “Acquired Fund Fees and Expenses” (“AFFE”) disclosure requirements, which require acquiring funds to aggregate and disclose in their prospectuses the amount of total annual acquired fund operating expenses and express the total amount as a percentage of an acquiring fund’s net assets. As a consequence, some index providers removed acquired funds from their indices, causing a significant reduction in institutional ownership of such funds.

The SEC has requested public comment on the proposed rule and industry suggestions to improve AFFE disclosure (see pages 74-77 of the proposed rule).

Given that the proposed rule would provide a holistic exemption for fund of funds to operate, the SEC also proposes to rescind Rule 12d1-2 and individual exemptive orders for certain fund of funds arrangements, with the idea of creating a consistent rules-based regime for fund of funds arrangements. In addition, in connection with the proposed rescission of Rule 12d1-2, the SEC also proposed amendments to Rule 12d1-1 to allow funds that rely on Section 12(d)(1)(G) to invest in money market funds that are not part of the same group of investment companies.

The proposed rule and related rule amendments can be found using the following link: https://www.sec.gov/rules/proposed/2018/33-10590.pdf.

The Securities and Exchange Commission adopted final rules today making Regulation A available to reporting companies.  The Commission was required to amend Regulation A pursuant to the mandate in the financial services regulatory legislation, the Economic Growth, Regulatory Relief, and Consumer Protection Act.  Pursuant to Regulation A, an issuer may raise up to $50 million in a 12-month period.  While it is not clear how this new flexibility will promote capital formation, supporters of the measure had noted that smaller reporting companies or other smaller companies that might be subject to limitations on the use of a shelf registration statement for primary offerings might find this alternative helpful.

The final amendments to Regulation A can be found here: https://www.sec.gov/rules/final/2018/33-10591.pdf.

On December 10, 2018, Representative K. Michael Conway introduced H.R. 7234, a new bill entitled “Holding Foreign Companies Accountable Act” that seeks to amend the Sarbanes-Oxley Act of 2002.  The bill requires each “covered issuer” to disclose annually to the SEC the (1) provisions of laws or rules in foreign jurisdictions that prevent the PCAOB from performing its inspections of auditors located in such foreign jurisdictions and (2) date when such provisions no longer prevent said PCAOB inspections.  A “covered issuer” is a reporting company with a registered public accounting firm that (i) is located in a foreign jurisdiction and (ii) the PCAOB is unable to inspect because of the applicability of laws or rules of such foreign jurisdiction.  If the PCAOB is prevented from carrying out an inspection of the auditor for three consecutive years, the SEC is authorized to prohibit the covered issuer’s securities from being traded on a national securities exchange, unless such covered issuer certifies to the SEC that it will retain a registered public accounting firm that the PCAOB is able to inspect.

The bill follows a joint statement issued earlier this month by SEC Chairman Jay Clayton, SEC Chief Accountant Wes Bricker and PCAOB Chairman William Duhnke that highlighted the significant challenges the SEC and the PCAOB currently face in overseeing the financial reporting for U.S.-listed companies whose operations are based in China.  See our earlier post on this topic here.

A copy of H.R. 7234 is available here.

On December 18, 2018 the Commission published a Request for Comment on Earnings Releases and Quarterly Reports (the “Request”), which solicits public comment on both earnings releases and the frequency of periodic reporting. In the Request, the Commission notes that it is seeking to reduce administrative and other burdens for U.S. public companies without compromising investor protection.

To learn more, read our Legal Update.

The Securities and Exchange Commission adopted final rules requiring public companies (other than foreign private issuers and certain fund issuers) to disclose in proxy statements their policies regarding hedging transactions in the company’s securities by directors and employees.  The Commission was required by Section 955 of the Dodd-Frank Act to adopt such rules.

The Commission’s fact sheet notes that new Item 407(i) of Regulation S-K will require a company to describe any practices or policies it has adopted regarding the ability of its employees (including officers) or directors to purchase securities or other financial instruments, or otherwise engage in transactions, that hedge or offset, or are designed to hedge or offset, any decrease in the market value of equity securities granted as compensation, or held directly or indirectly by the employee or director.

The final rule text has not been released yet.

As we previously posted, the Securities and Exchange Commission had announced that at tomorrow’s open meeting the Commission would, among other things, consider a request for comment regarding earnings releases and the frequency of periodic filings.  Well, today, the Commission released the Request for Comment.

This is not the first time that the Commission has considered the frequency of periodic reporting.  In fact, from time to time, Commissioners and representatives of the Commission’s Division of Corporation Finance have questioned whether quarterly or semi-annual reporting is more appropriate for public companies.  However, following comments earlier in the year regarding the burdens placed on reporting companies as a result of the quarterly reporting requirement and the focus on short-termism that may result from quarterly earnings announcements, the Commission had been urged to conduct a study on these matters.  The Request for Comment solicits information regarding the frequency of reporting; suggestions regarding simplifying the process by which investors access quarterly information; an option for companies that issue earnings releases to meet their quarterly report requirements through an enhanced release; and whether quarterly reporting or quarterly guidance fosters a short-term outlook.

A more detailed legal update will follow.

Here is a link to the Commission’s Request:  https://www.sec.gov/rules/other/2018/33-10588.pdf.

The Securities and Exchange Commission announced that it will hold an open meeting on December 19, 2018.  Among other things, the Commission will consider a rule requiring disclosure of hedging arrangements entered into by a reporting company’s directors and employees as required by Dodd-Frank Act Section 955, as well as whether to issue a comment request regarding the content of quarterly reports and earnings releases issued by reporting companies.  The latter has been the subject of significant media coverage since a Presidential tweet suggested that quarterly reporting contributes to short-termism (see our previous blog post).  The proposed package of legislation known as JOBS Act 3.0 contains a bill that would require that a study be conducted by the Commission regarding the requirement for quarterly reporting by smaller reporting companies.  See the meeting notice here: https://www.sec.gov/news/openmeetings/2018/agenda121918.htm.


SEC Chair Clayton testified on December 11, 2018 before the U.S. Senate Committee on Banking, Housing and Urban Affairs.  In his testimony, Chair Clayton reviewed the Commission’s Strategic Plan and outlined the agency’s priorities.  Consistent with his remarks delivered at Columbia University, Chair Clayton reviewed some of the principal accomplishments in 2018, including proposed Regulation Best Interest, the amendments to the smaller reporting company definition, the disclosure simplification amendments, and the proposed changes to financial disclosures for guarantors.  He noted that there were other proposals “on the horizon,” including:

  • A proposal to amend the definition of “accelerated filer” (triggering SOX 404(b) attestation);
  • Extension of the test-the-waters accommodation to non-EGCs;
  • Rulemaking to expand Regulation A eligibility to public reporting companies;
  • A release soliciting input on reducing compliance burdens on reporting companies with respect to quarterly reports;
  • A concept release on the exempt offering framework;
  • Changes to Rule 701 to address the comments received on the Commission’s concept release on the exemption;
  • Improvements to the proxy process;
  • Regulation of proxy advisory firms;
  • Revisions of the offering rules for BDCs as required by the Small Business Credit Availability Act; and
  • Revisions of the offering rules for closed-end funds as required by the Economic Growth, Regulatory Relief, and Consumer Protection Act.

In a speech yesterday, Securities and Exchange Commission Chair Jay Clayton provided an overview of the Commission’s significant accomplishments in 2018.

Chair Clayton noted his approach to the Reg Flex agenda and the setting of more realistic rulemaking priorities.  In the last year, he noted that the Commission advanced 23 of the 26 rules on the Commission’s near-term agenda.  Among the key accomplishments in 2018, Chair Clayton cited the Commission’s work with regard to proposed Regulation Best Interest.  With respect to capital formation, Chair Clayton noted the Commission’s amendments to the smaller reporting company definition and the disclosure effectiveness related updates.

In terms of priorities for 2019, Chair Clayton again cited completion of the Commission’s work on proposed Regulation Best Interest as one of the most important projects.

Chair Clayton also pointed to proxy plumbing as another key objective for 2019.  Addressing regulation of proxy advisory firms, Chair Clayton noted that “there should be greater clarity regarding the division of labor, responsibility and authority between proxy advisors and the investment advisers they serve. We also need clarity regarding the analytical and decision-making processes advisers employ, including the extent to which those analytics are company- or industry-specific. On this last point, it is clear to me that some matters put to a shareholder vote can only be analyzed effectively on a company-specific basis, as opposed to applying a more general market or industry-wide policy.”

Chair Clayton cited changes in the capital markets and reaffirmed the commitment to review initiatives “to facilitate access to capital for issuers and to make sure Main Street investors have the best possible mix of investment opportunities.”  Based on prior comments, this would appear to allude to opportunities to invest in private companies, including unicorns.  The Commission also is considering expanding test the waters communications to non-emerging growth companies, evaluating quarterly reporting requirements, and streamlining or harmonizing securities offering exemptions.  He noted that the staff is working on a concept release to solicit input about key topics, including whether the accredited investor definition is appropriately tailored to address both investment opportunity and investor protection concerns.

Chair Clayton noted that the Commission is monitoring three risks:  (1) the impact to reporting companies of the United Kingdom’s exit from the European Union, or “Brexit”; (2) the transition away from LIBOR as a reference rate for financial contracts; and (3) cybersecurity.  Among other things, the Commission staff will focus on disclosures related to Brexit risks.  Chair Clayton noted that he “would like to see companies providing more robust disclosure about how management is considering Brexit and the impact it may have on the company and its operations.”  Chair Clayton also noted that the transition away from LIBOR is a significant risk for many market participants—whether public companies who have floating rate obligations tied to LIBOR, or broker-dealers, investment companies or investment advisers that have exposure to LIBOR.  Finally, he commented on cybersecurity.  The full text of yesterday’s remarks can be found: https://www.sec.gov/news/speech/speech-clayton-120618.

On November 30, 2018, the Securities and Exchange Commission (the “Commission”) adopted a new rule establishing a non-exclusive research report safe harbor (“Rule 139b”) for unaffiliated brokers or dealers that publish or distribute research reports regarding qualifying investment funds.  The Commission took this action in furtherance of the mandate of the Fair Access to Investment Research Act of 2017 (the “FAIR Act”).  The FAIR Act required that the Commission expand the Rule 139 safe harbor for research reports in order to cover research reports on investment funds.

Continue reading our Legal Update.