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Voices: Regulations to watch in 2020

0628FP.SEC

Below I offer my regulatory predictions for 2020, addressing Regulation Best Interest, closed-end funds, private equity and compliance, among others. One caveat: my crystal ball is always cloudier during a presidential election year. For example, if Jay Clayton or Dalia Blass decide to resign (not predictions, although possible based on history), all bets are off as the SEC would grind to a regulatory halt. Regardless, it should be an interesting regulatory year after the SEC’s 2019 new rules and proposals. This year promises to be just as busy.

There will be a dramatic increase in the launch of niche ETFs
Although ETF launches were down last year, we expect that the adoption of the new ETF rule will facilitate the launch of smaller, niche ETFs who will no longer have to obtain an exemptive order.
The Enforcement Division will commence several cases against registered funds alleging inadequate fund compliance programs
A recent OCIE sweep uncovered widespread regulatory failures by registered funds. The industry has received its warning shot. Expect litigation this year.
The SEC will allow the use of distributed ledger technology for securities settlement and shareholder transactions
The SEC has already allowed the beta test of a distributed ledger technology for securities settlement. Although the SEC has raised significant regulatory concerns especially around custody, we expect that the use of these technologies will become more widely permitted and utilized this year.
Dual registrants will face a series of reverse churning cases
The SEC has expressed concerns about dual registrants that put clients in fee-based programs when those clients would pay less in traditional brokerage accounts. The SEC has brought a few cases charging reverse churning. Expect a slew of these cases as sequels to the revenue sharing cases of the prior few years.
OCIE will conduct an adviser advertising sweep
It’s great news that the SEC recently proposed a modernized marketing and advertising rule. We expect that the SEC will adopt the rule (in current or modified form) and then direct OCIE to conduct an industry sweep to ensure compliance.
The SEC will bring significant valuation cases against private equity firms
As the retail market opens for private equity (see above), expect the SEC to scrutinize how PE firms value assets to calculate fees and performance. The SEC has already shown its willingness to attack PE valuations.
The SEC will attack zombie funds
As far back as 2014, the SEC raised concerns about “zombie” funds i.e. private funds that lock up investor redemptions but do not attract new assets or make new investments. Late last year, the SEC brought a significant case alleging that the fund manager took illicit management fees even though it claimed the fund was illiquid. We expect a number of significant enforcement actions against zombie funds this year.
New SEC rules will expand the closed-end fund market
The SEC will adopt changes to the accredited investor definition and facilitate the registered closed-end fund offering process with modernized disclosure and tender offer rules. The closed-end fund market will blossom, allowing retail investing into otherwise privately-offered securities.
Congress will propose/adopt legislation increasing SEC penalties
Both Republicans and Democrats agree that corporate wrongdoers should face more severe punishments. Increasing SEC penalties died when Rep. Hensarling stepped down and his efforts to overturn Dodd-Frank ended. We expect Congress will resuscitate this initiative as it relates to SEC penalties.
Lawsuits will delay implementation of Regulation Best Interest
Multiple states as well as a coalition of financial planners have filed lawsuits challenging Regulation BI. The lawsuits claim that the SEC exceeded its authority or did not follow Dodd-Frank’s requirements. The financial planners argue that Regulation BI competitively discriminates. We expect the SEC will have to delay implementation and perhaps rewrite the rule in response.