Repeal of Dodd-Frank Confidentiality Protection for SEC: What Investment Advisers Lost and What Remains

On October 5, 2010, President Obama signed Senate Bill 3717 (“Bill”) into law, amending the Investment Advisers Act of 1940 (the “IAA”) by repealing a broad exemption of the Securities and Exchange Commission (“SEC”) from the Freedom of Information Act (“FOIA”) and other disclosure obligations enacted only three months before by Section 929I of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”).  Section 929I, which added Section 210(d) to the IAA, exempted the SEC from being compelled through FOIA and non-FOIA litigation to disclose information obtained by the SEC in connection with reporting obligations of financial institutions, including in connection with the SEC’s surveillance, risk assessment, regulatory or oversight activities.  The SEC had requested the exemption to facilitate its enforcement activities.  According to the SEC, financial institutions resist providing the agency with non-public information on the grounds that the SEC might not be able to keep it confidential, particularly from competitors or other third parties seeking the information through discovery in connection with commercial litigation or otherwise.  After the SEC used Section 210(d) to avoid disclosing details of its failure to detect the Bernie Madoff Ponzi scheme, Congress determined that Section 210(d) was overbroad, and repealed the provision.  In a guest article, Hillel M. Bennett and Gary L. Granik, both Partners at Stroock & Stroock & Lavan LLP, and Alessandro J. Sacerdoti, an Associate at Stroock, discuss in detail: the reporting and filing requirements applicable to investment advisers, as established by Dodd-Frank; the new confidentiality protections for filed information included in Dodd-Frank; confidential treatment of information obtained by the SEC during examinations and investigations; Exemption 8 of FOIA; the Aguirre case; requests by investment advisers for confidential treatment of non-public information disclosed to the SEC during an examination or investigation; confidentiality of proprietary information under Dodd-Frank; and potential legislative action with respect to confidentiality of information filed with or obtained by the SEC.

To read the full article

Continue reading your article with a HFLR subscription.