Navigating the Interpretation Regarding an Investment Adviser’s Standard of Conduct: What It Means to Be a Fiduciary (Part One of Three)

SEC Commissioners recently published an Interpretation Regarding Standard of Conduct for Investment Advisers (Interpretation), which was part of a collection of rulemakings and interpretations that also included the adoption of Regulation Best Interest and the Form CRS relationship summary, as well as the publication of an Interpretation Regarding the Solely Incidental Prong of the Broker-Dealer Exclusion From the Definition of Investment Adviser. For SEC-registered investment advisers that advise private funds and other institutional clients, the Interpretation is, by far, the most relevant to their businesses out of this package of regulations and guidance. This three-part series examines the practical implications of the Interpretation for private fund managers. This first article provides an overview of the Interpretation and explores six key takeaways for fund managers from the Interpretation. The second and third articles will explore how fund managers can adopt a more systematic approach to identify, mitigate and monitor their conflicts of interest in light of the SEC’s detailed discussion within the Interpretation regarding an adviser’s obligation to “make full and fair disclosure of all conflicts of interest which might incline an investment adviser . . . to render advice which is not disinterested.” See “SEC Chair Defends Regulation Best Interest and Investment Adviser Fiduciary Duty” (Sep. 19, 2019).

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