Securities and Exchange Commission

 
July 16, 2018
Financial Regulation Reform Tracker

Congress and the Trump Administration may be embarking on making far-reaching changes that will recalibrate the manner in which financial services are regulated in the United States, including amending the Dodd-Frank Act and its implementing rules. We expect to see vigorous debate regarding the appropriate approach to financial services regulation, leading to rewrites of the structures and goals of federal banking and securities agencies and other government agencies.

This page is dedicated to tracking legislative and regulatory developments related to the SEC.

For more information, please contact Brendan C. Fox, K. Susan Grafton, Andrew L. Oringer or Corey F. Rose.

Return to the Financial Reform Tracker homepage » 

Legislation

Date

7/17/2018

Action

The JOBS and Investor Confidence Act of 2018 (the “Act”) passed in the Senate on September 12, 2017. The House passed an amended version of the Act on July 17, 2018.

Key Provisions

The United States House of Representatives, on July 17, 2018, passed the JOBS and Investor Confidence Act of 2018 (the “Act”), a compilation of 32 bills covering various capital market issues and impacting a variety of market participants. One of the main goals of the Act is to support startup companies and small business growth by easing regulatory burdens on funding sources including angel investors, venture capital firms and crowdfunding, and by expanding the definition of “accredited investor.” The Act would also support startup companies and small businesses by further expanding regulatory exemptions available to emerging growth companies and easing regulations around initial public offerings. Other market participants who would be impacted by the Act include financial institutions, as the Act updates the living will requirement placed on financial institutions under Dodd-Frank, instructs certain banking regulators to consider imposing new anti-money laundering and anti-organized crime rules on financial institutions, and creates a safe-harbor for financial institutions seeking to comply with government investigations.

Potential Impact

If passed, the Act could increase startup and small business access to capital and stimulate M&A and initial public offering activity among small businesses. The Act could also update financial institution’s living will requirements under Dodd-Frank and create new obligations for financial institutions in the Federal government’s efforts to deter human trafficking and transnational organized crime.

Important Links

Final Text

Compilation of Bills

Date

5/24/2018

Actions

Economic Growth, Regulatory Relief, and Consumer Protection Act (S. 2155)

Sponsor: Sen. Mike Crapo (R-ID) (Co-Sponsors – 13 R, 12 D, 1 I)

Senate Banking Committee passed 17-6, December 5, 2017.

Senate passed 67-31, March 14, 2018.

House passed 258-159, May 22, 2018.

Signed by the President on May 24, 2018.

Key Provisions

Among other things, Title III, Sec. 303 of the Act provides immunity from any civil or administrative proceeding to covered financial institutions and their covered employees for disclosing the suspected financial exploitation of seniors to appropriate agencies, as long as the disclosure is made in good faith and with reasonable care. The covered financial institutions have to train their covered employees and keep relevant records as specified in the bill for the immunity to apply.

Potential Impact

The Senior Safe Act component would encourage financial Institutions covered under the bill to report suspected financial exploitation of seniors by providing greater protection against liability.

Important Link

Final Bill Text

Date

3/23/2018

Actions

Small Business Credit Availability Act (S. 2324; H.R. 4267)

Senate Bill Sponsor: Sen. Heller (R-NV) (2 Co-Sponsors – 2 D)

House Bill Sponsor: Rep. Stivers (R-OH) (11 Co-Sponsors – 6 D, 5 R)

On March 23, 2018, the House and Senate passed the Act as a part of the Consolidated Appropriations Act, 2018, and President Trump signed the Act into law.

Key Provisions

This Act lessens the regulatory burden on Business Development Companies (BDCs) in two important ways. First, this Act increases leverage limits on BDCs under the Investment Company Act of 1940 by raising the debt-to-equity limit from 1:1 to 2:1.

Second, this Act directs the SEC to make rule revisions necessary to permit BDCs to use the SEC’s securities offering and proxy rules currently available to other issuers (i.e., operating companies).

Potential Impact

BDCs provide funding primarily to U.S. small and medium-sized businesses. The purpose of this Act is to increase funding for U.S. small and medium-sized businesses by allowing BDCs to borrow more money and raise equity capital in a more cost-efficient manner.

Important Links

Senate Bill Text

House Bill Text

See Dechert OnPointSmall Business Credit Availability Act: Increasing Capital and Flexibility for Business Development Companies.

Date

1/29/2018

Actions

Senior Safe Act (H.R. 2255)

Sponsor: Rep. Trott (R-MI) (2 Co-Sponsors – 2 D)

House of Representatives: passed by voice vote on January 29, 2018

Key Provisions

This Act would provide immunity from any civil or administrative proceeding to covered financial institutions and their covered employees for disclosing the suspected financial exploitation of seniors to appropriate agencies, as long as the disclosure is made in good faith and with reasonable care. The covered financial institutions have to train their covered employees and keep relevant records as specified in the Act for the immunity to apply.

Potential Impact

The Act would encourage financial Institutions covered under the Act to report suspected financial exploitation of seniors by providing greater protection against liability.

Important Links

House Bill Link

Date

1/18/2018

Action

Mutual Fund Litigation Reform Act (H.R. 4738)

Sponsor: Rep. Emmer (R-MN)

House Committee on Financial Services: passed 31-25 on January 18, 2018

Key Provisions

This Act would revise Section 36(b) of the Investment Company Act of 1940 to heighten the pleading standards and burden of proof in cases brought by mutual fund shareholders against investment advisers alleging breaches of fiduciary duty. Plaintiffs would be required to plead with particularity all facts establishing a breach of fiduciary duty and would be required to prove such a breach of fiduciary duty by clear and convincing evidence.

The language in the bill is also a provision of the Financial CHOICE Act of 2017.

Potential Impact

If passed, the Act would make it more difficult for plaintiffs to meet the pleading standards and burden of proof in Section 36(b) cases.

Important Links

House Bill Text

Date

1/17/2018

Action

Expanding Investment Opportunities Act (H.R. 4279)

Sponsor: Rep. Hollingsworth (R-IN) (3 Co-Sponsors – 2 D, 1 R)

House of Representatives: passed 418-2 on January 17, 2018

Key Provisions

This Act would direct the SEC to revise any rules necessary to permit a registered closed-end fund to use the SEC’s securities offering and proxy rules currently available to other issuers (i.e., operating companies) that are required to file reports under the Securities Exchange Act of 1934.

Under the Act, if the SEC failed to complete the mandated rule revisions within one year of the date of enactment of the Act, closed-end funds would be deemed eligible to rely on the existing rules available to operating companies.

Potential Impact

If passed, the Act would permit a closed-end fund to qualify as a “well-known seasoned issuer” and to sell additional shares in follow-on offerings through an “automatic shelf registration,” provided that applicable conditions are met. The Act would provide eligible closed-end funds with increased flexibility and would permit them to offer their shares in a more cost-efficient manner.

Important Links

House Bill Text

House Report 115-517 (amended version)

Date

1/12/2018

Action

H.R. 4790

Sponsor: Rep. Hill (R-AR)

House Financial Services Committee passed 50-10, March 21, 2018.

Key Provisions

The Bill would give the FRB sole rulemaking authority for the Volcker Rule as compared to the current joint rulemaking authority that is shared among the FRB, FDIC, OCC, SEC and CFTC. The Bill would also allocate examination and enforcement authority for the Volcker Rule so that the primary Federal banking agency (as defined in the Bill) for a banking entity would have sole authority to conduct examinations of the all affiliates of the banking entity and to enforce Volcker Rule with respect to the affiliates consistent with the FRB’s interpretations.

The Bill would also exclude community banks from the Volcker Rule by providing an exemption from banking entity status to any entity that has total consolidated assets of $10 billion or less.

Potential Impact

The Volcker Rule’s requirement for cooperation among five financial regulatory agencies has been widely viewed as complicating and impeding the rulemaking and interpretation processes for the Volcker Rule. This problem would be addressed by the Bill.

The Bill, similar to S. 2155 which recently passed the Senate with bipartisan support, would provide an exemption from the Volcker Rule for smaller institutions. The broad bipartisan support for the Bill suggests that Congress may be prepared to pass a significant relaxation of the Volcker Rule during this session.

Important Links

Bill Text

Date

12/06/2017

Action

Alleviating Stress Test Burdens to Help Investors Act (H.R. 4566)

Bill Sponsor: Rep. Poliquin (R-ME)

House of Representatives passed 395-19 on March 20, 2018.

Key Provisions

The Dodd-Frank Act provided for certain regulatory agencies to issue rules establishing requirements for company-conducted stress tests to be undertaken on an annual basis by financial institutions (that were not SIFIs or large bank holding companies) that have consolidated assets in excess of $10 billion. The Bill would repeal the potential application of this stress test requirement to financial companies whose primary Federal financial regulatory agency is the SEC or CFTC. The proposed repeal is based on the view that the principles associated with stress testing do not appropriately apply to entities such as asset managers and investment funds.

The Bill would, however, authorize the SEC and the CFTC to issue regulations requiring financial companies as to which they are the primary financial regulatory agency to conduct periodic analyses of the financial condition, including available liquidity, of such companies under adverse economic conditions.

Potential Impact

The Bill is significant since it shows a broad bipartisan consensus in the House recognizing the significant differences in addressing bank related financial stability concerns as compared to asset management industry financial stability concerns.

Important Links

H.R. 4566

House Report 115-601

Date

10/6/2017

Action

Fair Access to Investment Research Act of 2017 (S. 327)

Senate: passed by unanimous consent on September 11, 2017

House of Representatives: passed by voice vote on September 27, 2017

Signed by the President on October 6, 2017.

SEC proposes rules and amendments on May 23, 2018.

Key Provisions

The SEC proposed rules and amendments that would create a new safe harbor allowing an unaffiliated broker-dealer participating in a securities offering of a “covered investment fund” (i.e., mutual funds, exchange-traded funds, closed-end funds, business development companies or publicly traded commodity pools that invest primarily in commodities, currencies, or derivative instruments that reference commodities or currencies) to publish or distribute a “covered investment fund research report” without such publication being deemed an offer under the Securities Act.

Potential Impact

This new safe harbor is designed to encourage broker-dealers to publish proprietary research on “covered investment funds” and would be similar to the safe harbor already available for research on public operating companies. The safe harbor, if amended as proposed, would not extend to research reports published or distributed by: (i) the covered investment fund itself; (ii) any affiliate of the covered investment fund; or (iii) any broker-dealer that is an investment adviser (or an affiliated person of the investment adviser) to the covered investment fund. 

Important Links

Final Bill Text

Proposed SEC Rules and Amendments

Date

10/4/2017

Action

Protection of Source Code Act (H.R. 3948)

Sponsor: Rep. Duffy (R-WI) (2 Co-Sponsors – 1 D, 1 R)

Introduced in House of Representatives on October 4, 2017

Key Provisions

This Bill would amend the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, and the Investment Advisers Act of 1940 to require the SEC to obtain a subpoena before compelling production of algorithmic trading code and other similar intellectual property from registrants.

Language similar to that of the Bill was included in the Financial CHOICE Act of 2017. Additionally, earlier this year the full House approved similar language as it applies to limitations on the CFTC.

Potential Impact

If passed, this Bill would aid in formalizing the SEC’s process for requests for source code. Limiting SEC access to source code to only when the SEC has obtained a subpoena may aid in protecting registrants’ intellectual property and may also provide registrants with a better-defined process for raising concerns with an SEC request for certain intellectual property, including the scope of the request and the SEC’s ability to protect such intellectual property, while in its possession, from cybersecurity attacks. 

Important Links

House Bill Text

Date

5/3/2017

Action

Consumer Financial Choice and Capital Markets Protection Act of 2017 (H.R. 2319)

Sponsor: Rep. Keith Rothfus (R-PA) (62 Co-Sponsors – 38 D, 24 R)

Introduced in House of Representatives on May 3, 2017

House Committee on Financial Services: passed 34-21, January 18, 2018

Consumer Financial Choice and Capital Markets Protection Act of 2017 (S. 1117)

Sponsor: Sen. Toomey (R-PA) (3 Co-Sponsors – 2 D, 1 R)

Introduced in Senate on May 11, 2017

Key Provisions

The Bills would allow a money market fund (MMF), under certain conditions, to elect not to be subject to the requirement under Rule 2a-7 under the Investment Company Act that a MMF available to institutional investors must operate using a floating net asset value. The Bills would also provide that a MMF that makes such an election would not be subject to the default liquidity fee provision of Rule 2a-7, which requires a fund to impose a liquidity fee under certain circumstances unless its board has determined that doing so would not be in the best interests of the fund.

The House Bill would also allow a MMF that writes a stable value election to elect to be subject to the default liquidity fee. It would also allow a MMF that has not made a stable value election to elect to not be subject to the default liquidity fee.

In addition, the Bills would prohibit any MMF from receiving “federal assistance,” as defined therein, and would require MMFs to provide disclosures to that effect.

Potential Impact

The Bills would allow all MMFs to opt into the use of a stable net asset value, notwithstanding amendments to Rule 2a-7 which became effective in October 2016 and, for funds that make such an election, would eliminate the mandatory liquidity fee requirement. 

Important Links

House Bill Text

Senate Bill Text

Date

3/30/2017

Action

Stronger Enforcement of Civil Penalties Act of 2017 (S. 779)

Sponsor: Sen. Reed (D-RI) (3 Co-Sponsors – 2 D, 1 R)

Introduced in Senate on March 30, 2017

Key Provisions

This Act would increase the maximum dollar amount of penalties permitted for administrative and civil actions under the Securities Act of 1933, Securities Exchange Act of 1934, Investment Company Act of 1940, and Investment Advisers Act of 1940 (collectively, the “Federal Securities Laws”). In addition, the Act would add a fourth tier of penalties for recidivists who previously have been criminally convicted for securities fraud or who, within the past five years, were the subject of a Securities and Exchange Commission judgment or order alleging fraud. Finally, the Act would impose new penalties under the Federal Securities Laws upon persons that violate a Federal court injunction or a bar obtained or entered by the SEC.

Potential Impact

If passed, the Act would impose a higher level of penalties pursuant to the Federal Securities Laws and would seek to discourage future violations by recidivists. 

Important Links

Senate Bill Text

Date

3/22/2017

Action

Financial Institution Bankruptcy Act  of 2017 (H.R. 1667)

Sponsor: Rep. Marino (R-PA) (4 Co-Sponsors – 2 R, 2 D)

House of Representatives passed by voice vote on April 5, 2017

Key Provisions

The Bill would establish a special resolution regime under a new subchapter of Chapter 11 of the Bankruptcy Code for bank holding companies and nonbank financial companies with at least $50 billion of assets (excluding stock brokers, commodity dealers, insurance companies and a range of depository institutions). It would authorize the formation of a bridge company to which certain assets and liabilities of the debtor could be transferred if a court found, among other things, that it was necessary to prevent serious adverse effects on financial stability in the U.S. The equity of the debtor would not be transferred to the bridge company and generally, the bridge company would not assume the debtor’s liabilities. The equity securities of the bridge company would be held by a special trustee and the proceeds of any sale of such securities would be held in trust pending distribution under an approved plan. The Act would entitle the FRB, SEC, OCC, CFTC and FDIC to be heard on any issue arising in a proceeding under the subchapter.

Potential Impact

The Bill would create an alternative to the Orderly Liquidation Authority provisions contained in Title II of the Dodd-Frank Act, which authorize the Secretary of the Treasury under extraordinary circumstances to appoint the FDIC as receiver for certain nonbank financial institutions under rules and procedures similar to the ones that apply to the receivership of an FDIC-insured depository institution. The Financial CHOICE Act, which was approved by the House Financial Services Committee in September 2016, contained provisions substantially identical to the Bill, but would have taken the additional step of repealing Title II.

Important Links

House Bill Text

Date

3/2/2017

Action

Encouraging Employee Ownership Act of 2017 (H.R. 1343)

Sponsor: Rep. Hultgren (R-NV) (7 Co-Sponsors – 4 D, 3 R)

House of Representatives: passed 331-87 on April 4, 2017

Key Provisions

The Act would direct the SEC to amend Rule 701 under the Securities Act to increase from $5,000,000 to $10,000,000 the aggregate sales price or amount of securities that may be offered pursuant to that rule during any consecutive 12-month period above which issuers must provide investors with certain additional disclosure relating to compensatory benefit plans.

Potential Impact

The Act would expand the scope of offerings that are exempted from satisfying certain enhanced disclosure requirements when relying on Rule 701 under the Securities Act.

Rule 701 exempts from registration certain offers and sales of securities pursuant to compensatory benefit plans and contracts relating to compensation, subject to certain limitations. In cases in which the total price or amount of securities offered within a 12-month period exceeds $5,000,000, in addition to providing each investor with a copy of the relevant compensatory benefit plan or the contract, as applicable, issuers must also provide investors with a variety of additional disclosure, including financial reports.

The Act would direct the SEC to increase the threshold for providing additional disclosure to $10,000,000 and would require the SEC to index the threshold to inflation every five years.

Important Links

House Bill Text

House Report 115-71

Date

2/7/2017

Action

Fair Access to Investment Research Act of 2017 (S. 327)

Sponsor: Sen. Heller (R-NV) (2 Co-Sponsors – 1 D, 1 R)

Reported by Senate Committee on Banking, Housing and Urban Affairs, March 13, 2017

House version H.R. 910 (companion bill)Sponsor: Rep. French (R-AR) (6 Co-Sponsors – 4 D, 2 R)

House of Representatives: passed 405-2 on May 1, 2017

Key Provisions

The Act would direct the SEC to amend Securities Act Rule 139 to expand a safe harbor from treatment as an offer to sell a security to research reports that are published or distributed by a broker-dealer in regard to a covered investment fund (i.e., certain registered investment companies or publicly traded commodity pools or exchange-traded funds that invest primarily in commodities, currencies, or derivative instruments that reference commodities or currencies).

Potential Impact

This amendment to Rule 139 would permit broker-dealers to publish research reports on investment funds that are not excepted securities for purposes of Rule 101 of Regulation M, and may encourage broker-dealers to initiate research coverage on these non-excepted funds.

Important Links

House Bill Text

House Report 115-102

Senate Bill Text

Date

1/30/2017

Action

H.J. Res. 41

Sponsor: Rep. Huizenga (R-MI)

House of Representatives: passed 235-187 on February 1, 2017

Senate: passed 52-47 on February 3, 2017

Signed by the President on February 14, 2017

Key Provisions

The resolution disapproves SEC Rule 13q-1 under Section 1504 of the Dodd-Frank Act.

Rule 13q-1 requires energy companies to annually report payments made to foreign governments for the commercial development of oil, natural gas, or minerals. The rule became effective in its current form in September 2016.

Congress exercised its authority under the Congressional Review Act (CRA) to disapprove the rule. The CRA generally allows Congress to disapprove a rule by simple majority votes within a specified period of time.

Potential Impact

Rule 13q-1 is no longer in effect. In addition, pursuant to the CRA, a rule that is substantially the same cannot be adopted in the future unless it is specifically authorized by subsequently enacted legislation.This action marks one of the first times that a rule has been disapproved under the CRA. It is likely that Congress will be considering a series of further disapproval actions in the near future. 

Important Links

Resolution Text

Date

1/3/2017

Action

SEC Regulatory Accountability Act, H.R. 78

Sponsor: Rep. Ann Wagner (R-MO)

House of Representatives passed 243-184: on January 12, 2017

Key Provisions

The Act would require the SEC, prior to issuing a regulation under the securities laws (i.e., the Securities Act of 1933, Securities Exchange Act of 1934, Sarbanes-Oxley Act of 2002, Trust Indenture Act of 1939, Investment Company Act of 1940, Investment Advisers Act of 1940, and Securities Investor Protection Act of 1970) to: (i) identify the nature and source of the problem that the proposed regulation is intended to address; (ii) assess the costs and benefits of the proposed regulation and make a determination that the benefits justify the costs; and (iii) identify and assess available alternatives.

The SEC would also be required, when issuing any regulation that qualifies as a “major rule” (a rule that the Office of Management and Budget determines is likely to result: (i) an annual effect on the economy of $100 million or more, (ii) a major increase in costs or prices for consumers, individual industries, governments, or geographic regions, or (iii) significant adverse impacts on competition, employment, investment, productivity, innovation, or on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic and export markets) to set forth quantitative and qualitative metrics to measure the economic impact of the regulation and to measure the extent to which the regulation has accomplished the stated purposes and the assessment plan the agency will use. An assessment plan must consider the costs, benefits, and intended and unintended consequences of the regulation.

The SEC would generally be required to publish an assessment report on a regulation within two years after its adoption. The agency would be required to seek public comment on the assessment report. No later than 180 days after publication of the assessment report the SEC would be required to issue for notice and comment a proposal to amend or rescind the regulation, or publish a notice that no action will be taken in regard to the regulation.

The Act would also require the SEC to periodically review its existing regulations to determine whether any regulations are outmoded, ineffective, or excessively burdensome and make modifications, expansions or repeals of based on its review.

Potential Impact

Under current law, in adopting a rule, the SEC is required to consider, in addition to the protection of investors, whether the rule will promote efficiency, competition, and capital formation. The U.S. Court of Appeals for the D.C. Circuit, in applying these requirements, has vacated an SEC regulation based on a finding that the agency had failed adequately to assess the economic effects of the regulation. Business Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011). The Act would expressly require the SEC to make a determination that the benefits of a rule justify its costs.

A requirement that the benefits of a rule justify the costs would appear to be a lower standard than the Supreme Court applied in Michigan v. EPA, 576 U.S. ___, (2015), where, in the context of rulemaking authority that required a rule to be “necessary and appropriate,” the Supreme Court found that an agency had to show that the benefits of the rule outweighed its costs.

The Act would significantly impact the SEC’s rulemaking process both in regard to an enhanced cost-benefit requirement at the time of adoption of a rule as well as a rigorous post-adoption assessment process. These requirements would likely provide opponents of a regulation with expanded opportunities to challenge a proposed or existing regulation either before the SEC or in court.

The Act would likely divert SEC staff resources to rulemaking and review of existing rules and away from other functions.

Important Links

Bill Text

Regulations

Date

6/28/2018

Action

The SEC adopted amendments to public liquidity-related disclosure requirements for certain open-end funds, originally adopted in 2016 (the “Liquidity Rule”).

Key Provisions

The adopted amendments to the Liquidity Rule would:

  1. Rescind the requirement that funds publicly disclose aggregate liquidity classification information about their portfolios in Form N-PORT.

  2. Require disclosure of the operation and effectiveness of funds’ liquidity risk management program in shareholder reports.

  3. Amend Form N-PORT to permit funds to classify single investments into multiple liquidity classification “buckets” under specified circumstances.

  4. Require funds to report their holdings of cash and cash equivalents in Form N-PORT.

Potential Impact

These amendments will clarify uncertainties in the original Liquidity Rule and reduce the regulatory burdens.

Important Link

Final Rule

Date

2/6/2017

Action

Public Statement from Acting SEC Chairman Michael S. Piwowar regarding Reconsideration of Pay Ratio Rule Implementation

Key Provisions

The SEC adopted the Pay Ratio Rule in August 2015 to implement Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

The rule requires a public company to disclose the ratio of the median of the annual total compensation of all employees to the annual total CEO compensation. Companies must comply with the rule their first fiscal year beginning on or after January 1, 2017. This compliance date reflects a one-year additional delay as compared to the proposed rule.

Piwowar stated that companies are experiencing difficulties in preparing to comply with the rule, and he requested further public comment on whether relief is needed. The comment period will last 45 days.

Potential Impact

This action could signal a further delay in the implementation of the rule, and may mark the first step towards additional SEC action to amend or rescind the rule (which would require notice and a public-comment period). See Dechert Newsflash, Trump Administration Discloses Another Rule in Doubt – SEC Questions the "Pay Ratio" Regulation

Important Links

SEC's Public Statement

Pay Ratio Final Rule

Proposed Rules and Interpretive Guidance

Date

6/28/2018

Action

The SEC unanimously voted to propose new Rule 6c-11 under the Investment Company Act of 1940 as well as certain disclosure form amendments (the “Proposal”).

Key Provisions

The Proposal would:

  1. Allow most exchange-traded funds (“ETFs”) to operate without first obtaining exemptive relief;

  2. Provide greater flexibility with respect to aspects of ETF operations than exists under exemptive relief issued in recent years, including the use of “custom baskets” for creation and redemption transactions;

  3. Require additional disclosures regarding ETFs’ trading costs, including certain bid-ask spread information; and

  4. Rescind existing exemptive relief for those ETFs that are eligible to rely on the proposed rule.

Potential Impact

If adopted, the Proposal would simplify and modernize the regulatory framework governing ETFs and enhance information to investors about the costs of purchasing ETF shares.

Important Links

Text of Proposing Release

Date

5/2/2018

Action

SEC voted unanimously to propose amendments to Rule 2-01(c)(1)(ii)(A) under Regulation S-X – the so-called “Loan Provision” (the “Proposal”).

Key Provisions

The Proposal would:

  1. Focus the auditor independence analysis under the Loan Provision solely on beneficial ownership;

  2. Replace the existing 10% bright-line shareholder ownership test with a more qualitative “significant influence” test;

  3. Introduce a “known through reasonable inquiry” standard with respect to identifying beneficial owners of an audit client’s equity securities; and

  4. Amend the definition of a fund under audit to exclude from the provision other funds that otherwise would be considered “affiliates of the audit client.”

Potential Impact

If adopted, the Proposal would significantly narrow the universe of lending relationships that implicate the Loan Provision and reduce the compliance burden for audit firms and their audit clients. The Proposal would address significant concerns over audit firms’ ability to comply with the Loan Provision with respect to registered investment companies.

Important Links

Text of Proposing Release

Date

4/18/2018

Action

SEC voted 4-1 to publish for public comment Regulation Best Interest, Disclosure Requirements and Labeling Rules for Financial Professionals, and New Interpretive Guidance Regarding the Standard of Conduct for Investment Advisers (the “Proposals”).

Key Provisions

The SEC proposals consist of:

  1. Regulation Best Interest, which would create a new standard of conduct for broker-dealers under the Securities Exchange Act of 1934 requiring broker-dealers to act in the best interest of retail customers when making recommendations, without putting the broker-dealers’ financial or other interests ahead of the interests of retail customers;

  2. New Form CRS, a four-page standardized document that broker-dealers and investment advisers would be required to provide retail investors disclosing, among other items: the services to be provided; the legal standard of conduct applicable to the services; the fees and costs the retail investor will pay; and conflicts of interest that may exist in the relationship;

  3. Restrictions on the use of titles containing the word “advisor” or “adviser” to registered investment advisers and their personnel;

  4. Proposed interpretive guidance regarding the scope of investment advisers’ fiduciary obligation under the Investment Advisers Act of 1940; and

  5. Potential imposition of broker-dealer-type compliance obligations on investment advisers relating to licensing and continuing education, account statements, net capital requirements and fidelity bonding.

Potential Impact

The proposed rules would create a principles-based standard of conduct for broker-dealers as well as create additional disclosure obligations for broker-dealers and investment advisers. The proposed interpretive guidance also would clarify and reaffirm investment advisers’ fiduciary obligations as the SEC applies them through the Investment Advisers Act. 

Important Links

The SEC’s proposing releases are available here:

Regulation Best Interest

New Disclosure Requirements for Financial Professionals

Interpretive Guidance Regarding the Standard of Conduct for Investment Advisers