Three Steps in Responding to an SEC Examination Deficiency Letter and Other Practical Guidance for Hedge Fund Managers from SEC Veteran and Sutherland Partner John Walsh
Hedge Fund Law Report
The vast majority of hedge fund managers with any nexus to the U.S. interact with the SEC – directly via examinations, enforcement actions or filings, or indirectly by operating under the specter of anti-fraud enforcement. Counsel (in-house or outside) and compliance officers can, accordingly, best effectuate their prophylactic purpose by understanding the expectations, operations and motivations of SEC officials and staff. Few understand these dynamics – and how they relate to hedge fund managers – better than Sutherland Asbill & Brennan LLP partner and former SEC official John H. Walsh. During his 23-year tenure at the SEC, Walsh, among other things, played a key role in creating the Office of Compliance Inspections and Examinations (OCIE), designed and implemented the SEC’s securities compliance examination practices and served as OCIE’s acting director in 2009. The Hedge Fund Law Report recently interviewed Walsh in connection with the publication of Investment Adviser’s Legal and Compliance Guide, Second Edition, a treatise that Walsh co-authored with Terrance J. O’Malley. Our interview aimed to connect Walsh’s experience with the concerns of hedge fund managers, and covered topics including: retraining of OCIE staff in 2009; building blocks of a credible “tone at the top”; managing voluminous SEC information requests during examinations; the role of technology in a well-designed examination strategy; factors SEC officials consider in making referrals to Enforcement; the advisability of voluntary presentations to SEC examiners; core elements of effective information barriers; responding to SEC deficiency letters; access to previously-issued SEC deficiency letters; information sharing between the SEC and other regulators; admissions of wrongdoing; and attorney-client privilege.