SEC Settles Nine Enforcement Proceedings Over Custody Rule and Related Form ADV Violations

Safeguarding of client assets is one of an investment adviser’s fundamental duties. Thus, there is nothing surprising about the SEC’s strict enforcement of Rule 206(4)‑2 under the Investment Advisers Act of 1940, commonly known as the “Custody Rule.” Many private fund advisers comply with the Custody Rule by delivering an audited financial statement to each fund investor, which they must disclose in their Forms ADV. The SEC recently resolved enforcement proceedings against nine private fund advisers that allegedly either delivered untimely financial statements and/or failed to update their Forms ADV promptly after receiving their fund auditor’s report. Untimely delivery of audited financials has been the basis for numerous SEC enforcement proceedings. Here, however, many of the advisers were also taken to task because they waited until their next annual Form ADV amendment to disclose receipt of an auditor’s report. This article details the relevant regulatory requirements, the alleged violations and the terms of the settlement orders. For more on these enforcement actions, see “Compliance Corner Q4‑2022: Regulatory Filings and Other Considerations That Hedge Fund Managers Should Note in the Coming Quarter” (Oct. 6, 2022).

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