Significant Focus Areas
The Division notes that 2023 examinations will prioritize several significant focus areas that pose unique or emerging risks to investors or the markets, as well as examinations of “core and perennial” risk areas. Notable new and “significant focus areas” include:
- Compliance with Recent Rules: The Division is prioritizing examining compliance with SEC’s recently adopted rules, including the:
- Marketing Rule (Advisers Act Rule 206(4)-1): 1) Whether register investment advisers (RIAs) have adopted and implemented written policies and procedures reasonably designed to prevent violations of the Marketing Rule, and 2) Compliance with requirements related to substantiating material statements of fact, performance advertising, testimonials, endorsements, and third-party ratings.
- Derivatives Rule (Investment Company Act Rule 18f-4): 1) Whether registered investment companies (RICs) have adopted and implemented policies and procedures reasonably designed to manage the funds’ derivatives risks and prevent violations of the Derivatives Rule, and 2) Compliance with Rule 18f-4 including adoption and implementation of a derivatives risk management program, board oversight, and whether disclosures are complete and accurate.
- Investment Company Act Fair Valuation Rule 2a-5: 1) Funds’ and fund boards’ compliance with requirements for determining fair value, implementing board oversight duties, setting recordkeeping and reporting requirements, and permitting funds’ board to delegate valuation determinations, and 2) Whether adjustments have been made to valuation methodologies, compliance policies and procedures, governance practices, service provider oversight, and/or reporting and recordkeeping.
See related KPMG Regulatory Alert:
Special Alert | SEC Investment Adviser Marketing Rule (here)
- Private funds: Examinations of RIAs to private funds remains a priority due to the size, complexity, and rapid growth of the private funds market. The SEC staff states there has been an 80 percent increase in gross assets managed by investment advisers to private funds in the past five years (reaching total gross assets of $21 trillion). Reviews will focus on:
- Conflicts of interest.
- Calculation and allocation of fees and expenses, including the calculation of post-commitment period management fees and the impact of valuation practices at private equity funds.
- Compliance with the Marketing Rule, including performance advertising and compensated testimonials and endorsements, such as solicitations.
- Policies and practices regarding the use of alternative data and compliance with Advisers Act Section 204A (Prevention of Misuse of Nonpublic Information).
- Compliance with the Advisers Act Rule 206(4)-2 (Custody Rule), where applicable, including timely delivery of audited financials and selection of permissible auditors.
- Funds with specific risk characteristics, such as funds that:
- Are highly leveraged.
- Are managed side-by-side with business development companies.
- Use affiliated companies and advisory personnel to provide services to their fund clients and underlying portfolio companies.
- Hold certain hard-to-value investments, such as crypto assets and real estate-connected investments, with an emphasis on commercial real estate.
- Invest in or sponsor SPACs.
- Are involved in adviser-led restructurings, including stapled secondary transactions and continuation funds.
See related KPMG Regulatory Alerts:
Private Funds: SEC, CFTC Joint Proposal to Amend Form PF
Private Funds: SEC Proposed Amendments to Form PF
Private Funds: Proposals to enhance investor protections
- Standards of Conduct: Regulation Best Interest, Fiduciary Duty, and Form CRS. Continuing focus on standards of conduct for broker-dealers and RIAs will address how broker-dealers and RIAs demonstrate acting in the best interests of retail investors through compliance with requirements under Regulation Best Interest and the Advisers Act fiduciary standard. Examinations will assess:
- Investment advice and recommendations with regard to products, investment strategies, and account types, particularly around complex, high cost, illiquid, or proprietary products and unconventional strategies purporting to address rising interest rates.
- Disclosures made to investors and whether such disclosures include all material facts relating to any conflicts of interest associated with the advice and recommendations.
- Processes for making best interest evaluations, including those for reviewing reasonably available alternatives, evaluating costs and risks, and identifying and addressing conflicts of interest.
- Factors considered in light of the investor’s investment profile, including investment goals and account characteristics.
- Economic incentives to recommend products, services, or account types.
- Compliance with Form CRS, including delivery to investors, filing with the SEC, and posting the current summary to the firm’s public website.
See related KPMG Regulatory Alerts:
SEC Examinations Risk Alert: Regulation Best Interest (here)
Form CRS Disclosure: SEC Staff Statement (here)
- Environmental, Social and Governance (ESG) investing. The Division acknowledges that RIAs and registered funds are increasingly offering and evaluating investments that entail ESG strategies or components. Reviews will focus on RIA’s and registered funds’:
- ESG-related advisory services and fund offerings, including accurate disclosure of ESG investing approaches.
- Recommendations of ESG products for retail investors and whether they are made in the investors’ best interest.
- Labeling of ESG products.
See related KPMG Regulatory Insights materials:
KPMG Regulatory Insight View: ESG Risk Practices (here)
Investor Protections: SEC proposed Names Rule and ESG Investment Practices Disclosure (here)
SEC Examinations Risk Alert: Compliance issues in ESG investing (here)