There has been a lot of focus on the effect of Dodd-Frank on private fund managers. Many had relied on the small adviser exception from registration. If you had fewer than 15 clients (funds) you were exempt from regulation. With the loss of that exclusion, the industry has been looking to other ways to fall outside the requirements of registration.
One may be to take another look at the definition of investment adviser and see if it really applies to what your fund does.
Section 202(a)(11) of the Advisers Act defines an “investment adviser” as
“any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation and as part of a regular business, issues or promulgates analyses or reports concerning securities.”
Let’s break it down into its three components:
- for compensation
- engaged in the business
- provide advice about securities
A person or firm must satisfy all three elements and not fall into one of the half dozen statutory exclusions to be regulated under the Advisers Act.
For fund managers, the “compensation” is easily satisfied. A fund manager is giving advice to its funds. Presumably, they are not doing it for free.
Whether a person providing financially related services is an “investment adviser” is a facts and circumstances test. In Release IA-1092 (.pdf) the SEC took a look at whether financial planners are investment advisers and provided some ways to look at whether you are in “engaged in the business” of “providing advice about securities.”
Here are some activities that the SEC believes falls into the category:
- Giving advice about securities, even if it does not relate to specific securities
- advise concerning the relative advantages and disadvantages of investing in securities in general as compared to other investments
- in the course of developing a financial plan for a client, advises the client as to the desirability of investing in, purchasing or selling securities
- a person who advises employee benefit plans on funding plan benefits by investing in, purchase, or selling securities, as opposed to, or in addition to, insurance products, real estate not involving securities, or other funding media
- providing advice as to the selection or retention of an investment manager (under certain circumstances)
“Engaging in the business” of providing investment advice is a little trickier. Giving advice need not be the principal business activity. “The Giving of advice need only be done on such a basis that it constitutes a business activity occurring with some regularity. The frequency of the activity is a factor, but it is not determinative.”
It comes down to how often a fund manager gives advice to the fund about securities as part of the fund’s operations and investment process.
- SEC Release IA-1092
- Section 202(a)(11) of the Advisers Act
- Is a Fund Manager an Investment Adviser? – prior post on Compliance Building
- What is a Security? Is Real Estate a Security? – prior post on Compliance Building