Written by: Jay Gould and Peter Chess
On October 9, 2012, the Securities and Exchange Commission (SEC) announced the launch of an initiative to conduct focused, risk-based examinations of investment advisers to private funds that recently registered with the SEC. These “Presence Exams” are part of a two year initiative with three primary phases: engagement, examination and reporting. During the examination phase, staff from the National Exam Program (NEP) will review one or more of five areas identified by the SEC as “high-risk” areas for the business and operations of advisers:
- Marketing. NEP staff will conduct evaluations of marketing materials to ascertain, for example, whether the adviser has made false or misleading statements about its business or performance record.
- Portfolio Management. NEP staff will review and evaluate an adviser’s portfolio decision-making practices.
- Conflicts of Interest. NEP staff will review the procedures and controls that advisers use to identify, mitigate and manage conflicts of interest within their firm.
- Safety of Client Assets. NEP staff will review advisers deemed to have “custody” of client assets for compliance with provisions of the Investment Advisers Act of 1940, as amended (the Advisers Act), and related rules designed to prevent theft or loss of client assets.
- Valuation. NEP staff will review advisers’ valuation policies and procedures.
Investment advisers should note that access to any advisory books and records will also need to be provided upon request during a Presence Exam. Prior to the examination phase, NEP staff will engage in a nationwide outreach to inform newly registered investment advisers about their obligations under the Advisers Act and related rules during the engagement phase. At the conclusion of the examination phase, the NEP will report its observations to the SEC and the public.
The NEP is administered by the Office of Compliance Inspections and Examinations within the SEC. The letter outlining the NEP’s initiative, available here, was distributed to certain executives and principals of newly registered investment advisers and posted on the SEC’s website. NEP staff will contact advisers separately if their firm is selected for an examination, and receipt of the letter announcing the launch of the initiative does not ensure that a Presence Exam will necessarily follow.