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NOTE: This FAQ was written for private fund managers prior to the Dodd-Frank SEC registration deadline. Due to various changes in the rules
since that time, this FAQ is now outdated. For up-to-date information on SEC registration requirements for private advisers, please contact us at: firstname.lastname@example.org.
What is the Dodd-Frank Act?
The Dodd-Frank Act implements the Obama Administration’s Financial System
Regulatory Reform Plan, issued in June 2009 in response to the world financial
crisis. President Obama signed the Dodd-Frank Act into law on July 21, 2010,
imposing a significant and sweeping new regulatory regime on the financial services
industry, including many provisions affecting private fund managers which will generally
result in an increased number of hedge fund and other private fund managers being
required to register as investment advisers with the SEC.
When will the Registration Act be effective? What is the deadline for
compliance with the new law?
The Registration Act will be effective on July 21, 2011.
Unless exempt under the Registration Act, all investment advisers will need to become
fully compliant with the registration and reporting requirements by July 21, 2011.
Unregistered advisers who will be required to register with the SEC under the new law must
register by that date.
Where can I find the full text of the Dodd-Frank Act?
All 848 pages may be found
Where can I find the provisions that address registration of private fund investment
The Registration Act may be found in Title IV of the Dodd-Frank Act, at the link in the
Which funds are considered “private funds” under the Dodd-Frank Act?
Funds that would be “investment companies” under the Investment Company Act of 1940, but for the
exceptions under Section 3(c)(1) or 3(c)(7) (see
for more details.
Will there still be a “private adviser exemption”?
No. Effective July 21, 2011, the private adviser exemption is repealed. Unless you are excluded from
the definition of “investment adviser” (see
Advisers Act Section 202(a)(11)
and the FAQ on "family offices" below) or meet one of the other exemptions set
out in the Advisers Act (see
Advisers Act Section 203(b)
and the FAQs below on dollar thresholds, venture capital funds, small business investment companies,
CTAs and foreign private advisers), you will be required to register.
The private adviser exemption under current Advisers Act Section 203(b)(3) exempts an adviser (i) with
fewer than 15 clients in any 12-month period, (ii) who does not act as an investment adviser to any
registered investment company or a company which has elected to be a business development company and
(iii) who does not hold itself out to the public as an investment adviser.
What are the dollar thresholds for assets under management required
for SEC registration?
Advisers with $100 million or more in assets under management (“AUM”):
Required to register with the SEC, unless an exemption applies.
Advisers with between $25 million and $100 million in AUM:
Generally prohibited from registering with the SEC,
if the adviser is required to register with the state in which it maintains its principal
office and place of business and, if registered, would be subject to examination by that state.
SEC registration may be permitted if the adviser would otherwise be required to register with 15
or more states, or if the adviser is not permitted to register with a state (e.g., if the state
does not have an investment adviser statute).
The SEC plans to propose rules and form changes to implement the transition of these “mid-sized investment
advisers” from SEC to state regulation by the end of 2010 and to adopt such rules and form changes
between April and July, 2011.
Advisers with over $25 million AUM who advise a registered investment company
or a business development company:
Required to register with the SEC.
Advisers with between $100 and 150 million in AUM (managing private funds and separate accounts):
Required to register with the SEC, unless an exemption applies.
Advisers advising only private funds:
(1) The SEC will provide an exemption for an adviser that acts solely as an adviser to private funds with AUM in the U.S.
of less than $150 million, but may subject such an adviser to recordkeeping, reporting and certain other requirements.
Proposed rules will be found here
(2) An adviser that acts solely as an adviser to private funds with $150 million or more AUM must
register with the SEC, unless exempt pursuant to one of the other exemptions in the Advisers Act.
The SEC plans to propose rules to implement the exemption from registration for certain private fund
advisers by the end of 2010 and to adopt such rules between April and July, 2011.
What if I manage hedge funds and separate accounts?
If you have AUM between $100 and $150 million, and are not exempt pursuant to another exemption,
you will be required to register with the SEC.
I advise private equity funds. Will I be exempt from SEC registration?
No. Advisers to private equity funds are not automatically exempt from SEC registration.
I advise venture capital funds. Will I be exempt from SEC registration?
If you advise only venture capital funds, you will be exempt from registration, but there will
be a not yet determined recordkeeping and reporting requirement. The SEC plans to propose rules defining
“venture capital fund” and implementing the exemption from registration for advisers to venture
capital funds by the end of 2010 and adopt such rules between April and July, 2011.
Since we do not yet know what factors the SEC will consider in determining what is a “private fund”
and what is a “venture capital fund,” it is highly recommended that you follow SEC rulemaking defining
“venture capital fund” to ensure that you are correct in your conclusion that you are exempt from
registration. Proposed rules will be found here
If you advise venture capital funds and other funds or accounts, you will be required to register with
the SEC, if another exemption is not applicable to you.
I am a “family office.” Do I need to register with the SEC?
Single family offices are excluded from the definition of “investment adviser” under the
Dodd-Frank Act. Multi-family offices and family offices providing services to non-family
clients generally will be required to register.
On October 12, 2010, the SEC proposed new Rule 202(a)(11)(G)-1 under the Investment Advisers Act
defining the term "family office." Under new rule 202(a)(11)(G)-1, a "family office" is any firm
(including its directors, partners, trustees and employees acting within the scope of their position or employment) that:
- Provides investment advice only to “family clients” (as defined below);
- Is wholly owned and controlled (directly or indirectly) by family members (as defined below); and
- Does not hold itself out to the public as an investment adviser.
“Family clients” include (i) family members, as defined by the rule; (ii) certain key employees; (iii) charities
(foundations, organizations or trusts) established and funded exclusively by one or more family members or former family
members; (iv) any trust or estate existing for the sole benefit of one or more family clients; and (v) entities
(including pooled investment vehicles excepted from the definition of “investment company” under the Investment
Company Act of 1940) wholly owned and controlled (directly or indirectly) exclusively by, and operated for the sole
benefit of, one or more family clients (with certain exceptions), and under certain circumstances, former family members
and former employees.
“Family members” means (i) the founders (i.e., the person for whose benefit the family office was established and that
person’s spouse or spousal equivalent, and any subsequent spouse of such individuals), their lineal descendants, and such
lineal descendants’ spouses or spousal equivalents, (ii) the parents of the founders; and (iii) the founders’ siblings and
their spouses or spousal equivalents and lineal descendants.
A family office that does not meet the terms of the new rule could seek an exemptive order from the Commission, but, in the
absence of such an order, such a family office would be subject to the Advisers Act and would have to register unless another
exemption is available. Family offices with exemptive orders will be “grandfathered” under the rule, as will certain other family
offices currently in operation.
Please click here
The SEC expects to adopt rules defining “family office” between April and July, 2011.
I advise a private fund and am registered as a commodity trading adviser
(“CTA”) with the CFTC. If I meet the criteria for required SEC registration, will I need to register with the SEC as well?
No, you will be exempt from SEC registration unless your business becomes predominantly securities-related.
Will I need to register as an investment adviser with any states?
Investment advisers with AUM under $100 million (or under $150 million if they advise only private funds)
generally will be subject to state registration requirements. Each state has its own
registration requirements. Advisers should consult internal or external counsel or advisers
regarding which state registrations may be necessary.
I am a non-U.S. manager / foreign investment adviser.
How does the Dodd-Frank Act affect me?
Many advisers based outside the U.S. will now have to register with the SEC, unless they meet
the criteria for the new “foreign private adviser exemption” (see below) or are able to rely on
There is a new “foreign private adviser exemption” if a manager meets all of the following criteria:
- has no place of business in the U.S.,
- has fewer than 15 clients in the U.S. and investors in the U.S. in private funds
advised by the adviser;
- has less than $25 million (or a higher amount if so determined by the SEC) in
AUM attributable to clients in the U.S. and investors in the U.S. in private funds
advised by the adviser; and
- neither (a) holds itself out generally to the U.S. public as an investment adviser;
nor (b) acts as an adviser to (i) a registered investment company or (ii) a company that
has elected to be treated as a business development company.
The SEC has not yet determined what registration/reporting requirements will apply to
registered non-U.S. managers.
Foreign advisers should take note of the new provisions granting the U.S. district courts
extraterritorial jurisdiction over actions brought by the SEC or the United States for violations
of antifraud provisions.
It is likely that the SEC will issue further guidance on the application of the above criteria,
as some terms are open to interpretation.
I advise only investment companies licensed under the Small Business Investment Act of 1958.
Will I need to register with the SEC?
No, you will be exempt.