Former SEC Enforcement Attorney Discusses Selective Disclosure Risks and Practical Solutions

The SEC has carefully scrutinized fund managers’ disclosures to investors for years to ensure that managers are making required disclosures; those disclosures are accurate and complete; and they match managers’ actual operations. In addition, the SEC will raise an eyebrow, so to speak, if a manager gives certain information to some investors but not others – especially if that information gives those select investors a financial advantage. In today’s economic climate, managers should expect heightened scrutiny of any selective disclosures. The Hedge Fund Law Report recently spoke to Philip Moustakis, counsel at Seward & Kissel and former Senior Counsel in the SEC’s Division of Enforcement, about increases in investor inquiries during the pandemic; the factors managers should consider when deciding what information to provide to investors; practical steps managers can take to avoid pitfalls when responding to investor inquiries; the SEC’s focus on selective disclosures; and the importance of documenting all communications with investors. For additional insights from Moustakis, see “How Managers Can Navigate the Thin Line Between SEC Examinations and Enforcement” (Nov. 14, 2019); and our two-part interview in which he discussed: “The Digital Assets Space” (Mar. 7, 2019); and “Enforcement Trends and Whistleblowers” (Mar. 14, 2019).

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