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03.16.2016

Investment advisers and fund managers must meet a number of filing and/or reporting deadlines and other obligations annually to comply with federal securities laws.  This Client Alert provides a summary of key compliance considerations for 2016.  Note that the deadlines provided below are for an investment adviser or fund manager with a fiscal year-end of December 31.  Any investment adviser or fund manager whose fiscal year-end falls on a date other than December 31 should carefully calculate their filing and/or reporting deadlines based on that date.

The regulation and compliance obligations discussed below are not exhaustive.  A thorough review of the compliance obligations of any particular investment adviser or fund manager is beyond the scope of this Client Alert, given the unique operational characteristics of such investment adviser or fund manager.  Please consult with the attorneys in our Investment Management Practice Group (IM Practice Group) regarding any additional obligations or filing and/or reporting deadlines that would apply to you.

Annual Compliance Reviews

Investment advisers registered under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), are required to conduct an annual review of their compliance programs for adequacy and the effectiveness of their implementation.  This annual review should take into consideration whether your compliance program sufficiently addresses the applicable compliance requirements, as well as the risks associated with operations, investment strategy and securities offerings.[1]  At a minimum, your compliance program should include the following annual tasks:

General Annual Compliance Obligations

  • Collect annual compliance certifications from all “supervised persons” and “access persons” certifying that each has read and understood the compliance policies and procedures;
  • Obtain an annual personal securities holding report from each “access person”[2];
  • Obtain annual “bad actor” re-certifications pursuant to Rule 506(d) of Regulation D;
  • Distribute an annual privacy notice to investors;
  • Review any compliance violations or incidents that occurred in the prior year and determine the effectiveness of your compliance policies and procedures in discovering and addressing the violation or incident, and revise your policies and procedures to extent reasonably necessary to prevent such incidents in the future;
  • Review any compliance matters that the SEC or other regulatory authorities have highlighted as areas of concern for the upcoming year (i.e., cybersecurity preparedness and asset valuation practices), or any changes in the laws or regulations that may require a revision to your compliance policies and procedures;
  • Review and comply with any annual certification, opinion requirements or other contractual obligations in counterparty agreements, side letters, credit facilities and other documents that require periodic reporting or notice;
  • Complete Department of Labor filings for ERISA benefit-plan clients or investors, as applicable;
  • Verify the eligibility of clients to participate in “new issues” of publicly offered securities, and identify “restricted persons” in order to properly restrict their participation; and
  • Complete third-party annual audit of anti-money laundering (AML) programs under the Financial Crimes Enforcement Network (FinCEN) AML rules to take effect mid-2016.

Annually on or Before Anniversary of Previously Filed Form

  • File a Form D with the SEC for private offerings claiming a securities exemption under Rule 504, Rule 505 or Rule 506[3];
  • Complete state blue sky renewal filings, as applicable; and
  • File the CPO/CTA annual questionnaires on or before the anniversary date of the initial filing, and promptly when there are changes to material information.

Compliance Calendars and Checklists

The IM Practice Group highly recommends that each investment adviser and fund manager prepare a compliance calendar and checklist with the appropriate reporting and filing deadlines and compliance obligations applicable to their operations, investment strategy and securities offerings.  The table below is provided for your convenience as an example of a typical compliance calendar / checklist for an investment manager or fund manager with a fiscal year-end of December 31.

Due Date

Requirement

Complete

January 15, 2016

(within 15 days of fourth quarter-end for Large Liquidity Fund Advisers)

File Form PF quarterly update with SEC (for quarter ending December 31).

January 15, 2016

Final payment due date for any unpaid balance of IARD Final Statement for Registration Renewal with IARD in preparation for registration renewal.

January 30, 2016

Recommended due date for collection of annual “access person” personal holdings reports.

February 15, 2016

(within 45 days of the fiscal year-end and quarterly thereafter)

File Form 13F amendment with SEC (for institutional investment managers that exercise investment discretion over $100 million or more in Section 13(f) securities).

February 15, 2016

(within 45 days of the fiscal year-end and quarterly thereafter if any information has changed)

File Form 13H annual amendment with SEC (for “large traders” whose activity exceeds certain thresholds).

February 29, 2016

(within 60 days of the calendar year-end)

Affirm CFTC exemption(s) for Commodity Pool Operators and/or Commodity Trading Advisers with the NFA (annually).

February 29, 2016

(within 60 days of the fourth quarter-end for Large Hedge Fund Advisers)

File Form PF quarterly update with SEC (for quarter ending December 31).

March 30, 2016

(within 90 days of the fiscal year-end for Registered Investment Advisers and Exempt Reporting Advisers)

File Form ADV annual update for Parts 1 and 2 with SEC through IARD system.

April 15, 2016

(within 15 days of first quarter-end for Large Liquidity Fund Advisers)

File Form PF quarterly update with SEC (for quarter ending March 31).

April 29, 2016

(within 120 days of the fiscal year-end)

Deliver updated Form ADV Part 2A (firm brochure), Appendix 1 (wrap fee brochure supplement) and Part 2B (supervised persons brochure supplement) and a summary of material changes to the brochure and supplements to applicable clients.

April 29, 2016

(within 120 days of the fiscal year-end for Large Private Equity Fund Advisers and Smaller Private Fund Advisers / Registered Investment Advisers that are not Large Hedge Fund Advisers or Large Liquidity Fund Advisers)

File annual Form PF with SEC.

April 29, 2016

(within 120 days of the fiscal year-end for Private Fund Advisers other than Funds of Funds)

Deliver audited financial statements to fund investors (if relying on the “audit exception” to requirements under Rule 206(4)-2 relating to reporting and surprise custody examinations).

May 16, 2016

(within 45 days of first quarter-end)

File Form 13F quarterly update with SEC (for quarter ending March 31).

May 30, 2016

(within 60 days of first quarter-end for Large Hedge Fund Advisers)

File Form PF quarterly update with SEC (for quarter ending March 31).

June 28, 2016

(within 180 days of the fiscal year-end for Funds of Funds)

Deliver audited financial statements to fund investors (if relying on the “audit exception” to requirements under Rule 206(4)-2 relating to reporting and surprise custody examinations).

July 15, 2016

(within 15 days of second quarter-end for Large Liquidity Fund Advisers)

File Form PF quarterly update with SEC (for quarter ending June 30).

August 15, 2016

(within 45 days of second quarter-end)

File Form 13F quarterly update with SEC (for quarter ending June 30).

August 29, 2016

(within 60 days of the second quarter-end for Large Hedge Fund Advisers)

File Form PF quarterly update with SEC (for quarter ending June 30).

October 15, 2016

(within 15 days of third quarter-end for Large Liquidity Fund Advisers)

File Form PF quarterly update with SEC (for quarter ending September 30).

November 14, 2016

(within 45 days of third quarter-end)

File Form 13F quarterly update with SEC (for quarter ending September 30).

November 29, 2016

(within 60 days of third quarter-end for Large Hedge Fund Advisers)

File Form PF quarterly update with SEC (for quarter ending September 30).

December 18, 2016

Payment due for IARD Preliminary Statement for Registration Renewal with IARD in preparation for registration renewal.

[1] Several of the requirements found in this Client Alert may be applicable only to advisers that manage private investment funds.

[2] “Access persons” are any supervised persons who (1) have access to nonpublic information regarding any clients’ purchase or sale of securities or nonpublic information regarding the portfolio holdings of any reportable fund, or (2) are involved in making securities recommendations to clients or have access to such recommendations that are nonpublic. If providing investment advice is your primary business, all of your directors, officers and partners are presumed to be access persons. (See Rule 204A-1(e)(1) of the Investment Advisers Act of 1940, as amended.)

[3] Filing a termination notice is not currently required under Regulation D.  However, the SEC proposed changes to Regulation D that would require the filing of a termination Form D with the SEC within 30 days of the termination of the offering.  See SEC Release No. 33-9416, July 10, 2013, available at http://www.sec.gov/rules/proposed/2013/33-9416.pdf.  We believe this rule will eventually be adopted by the commission and that filing a Form D notice upon termination of an offering is best practice.

Media Contact

Kristen M. Chatterton
804.771.5637
kchatterton@hirschlerlaw.com

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