Application of the New Private Fund Adviser Rules to Offshore Advisers

On August 23, 2023, the SEC adopted five new rules applicable to private fund advisers: (1) the Quarterly Statement Rule; (2) the Private Fund Audit Rule; (3) the Adviser-Led Secondaries Rule; (4) the Restricted Activities Rule; and (5) the Preferential Treatment Rule (collectively, PFA Rules). The SEC also amended Rule 206(4)-7 (the Compliance Rule) and Rule 204-2 (the Books and Records Rule). Although these new rules will have broad ramifications for advisers to private funds in the U.S., they also apply in certain instances to advisers whose principal office and place of business is outside of the U.S. (offshore advisers). Given the generalized guidance from the SEC in the PFA Rules, this guest article by Morgan Lewis attorneys Christine Ayako Schleppegrell, Christine Lombardo, Joshua Gurney and Ellen Weinstein explores some of the considerable nuances in how the PFA Rules may apply to offshore advisers. See our two-part series on the PFA Rules: “Overview and Key Changes From the Proposal” (Sep. 28, 2023); and “Key Compliance Challenges and Next Steps” (Oct. 12, 2023).

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