SEC Charges Private Fund CCO in Cherry Picking Scheme

The allocation of profitable trades to benefit an adviser’s principals or favored clients is a perennial subject of SEC enforcement activity. In the most recent example, the SEC has claimed that an individual who was the CCO, chief operations officer, vice president and minority owner of an investment adviser engaged in a brazen cherry picking scheme, in which he traded for himself and the adviser’s clients through an omnibus account, allegedly buying securities early in the day and allocating them only after seeing how they performed that day. He disproportionately allocated securities that appreciated in value to himself and those that fell in value to clients, and in many instances, he allegedly closed out profitable positions before allocating the trades to himself. This article analyzes the facts and circumstances underpinning the SEC’s action, the defendants’ alleged violations and the sanctions the SEC is seeking. For a look at one proposed approach to CCO liability, see our two-part series on the New York City Bar Association’s Framework: “Components and Proposals” (Jul. 15, 2021); and “CCO and Regulator Perspectives” (Jul. 22, 2021).

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