In an effort to promote consistent, comparable and reliable environmental, social and governance (ESG) disclosures to investors and others, as well as reduce the risk of “greenwashing,” the SEC recently proposed amendments to certain rules and forms under the Investment Advisers Act of 1940 and the Investment Company Act of 1940 (Investment Company Act) to require specific disclosures with respect to various advisers’ and funds’ incorporation of ESG factors into their investment decisions and strategies (the Disclosure Proposal). Simultaneously, the SEC proposed to amend Rule 35d‑1 under the Investment Company Act applicable to registered funds to ensure that those funds’ names accurately reflect their investments and related risks (together with the Disclosure Proposal, the Proposals). Although the Proposals specifically exclude private funds and certain investment advisers, they may still impact private funds. In a guest article, Tannenbaum Helpern attorneys Wayne H. Davis and Karen Liu explain which investment funds and advisers are covered by the Proposals; discuss the impact of the Proposals on private funds – both directly and indirectly; present several issues raised by the Proposals; and spell out the next steps private fund advisers should take. For more on the Proposals, see “A Roadmap to Proposed ESG Disclosures on Form ADV
” (Jul. 14, 2022).