Lessons on Separation Agreements That Fund Managers Can Glean From Recent SEC Action

The SEC has issued an order against an investment adviser for language in its separation agreements forcing departing employees to forfeit financial incentives for reporting misconduct under the SEC’s whistleblower program. See “How Can Hedge Fund Managers Mitigate the Reputational Harm of Whistleblower Complaints?” (Oct. 8, 2010). This order is particularly significant for employers in the asset management space because it highlights liabilities that may arise if employers include certain terms and language in separation agreements – including seemingly standard and uncontroversial provisions designed to protect the employer’s interests. This article examines the facts and allegations contained in the order, along with commentary from employment law experts from firms that regularly represent asset management clients. For analysis of the SEC’s current stance on whistleblower protection, see “OCIE 2017 Examination Priorities Illustrate Continued Focus on Conflicts of Interest; Branch Offices; Advisers Employing Bad Actors; Oversight of FINRA; Use of Data Analytics; and Cybersecurity” (Jan. 26, 2017); “Outgoing SEC Chair Outlines New Model for Enforcement Priorities in 2017 and Beyond” (Jan. 12, 2017); and “What the SEC’s Enforcement Statistics Reveal About the Regulator’s Focus on Hedge Funds and Investment Advisers” (Oct. 20, 2016).

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