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FIDUCIARY RULE UPDATE: WHAT ADVISERS MUST DO NOW TO BE IN COMPLIANCE

On May 22, 2017, the Department of Labor (DOL) announced that the DOL’s new fiduciary investment advice rule would go into effect on June 9, 2017 (as opposed to April 10, the originally scheduled implementation date). This paper focuses on what the new applicability date means for our clients—separate account managers and private fund managers. Specifically, it addresses what they should start doing now and what they must do before the end of the transition period on December 31, 2017.

THE “FIDUCIARY DUTY” RULE — WHAT NOW?

There is some question as to whether the Trump administration will repeal the fiduciary duty rule. For the reasons set forth herein, however, given the political, procedural and business dynamics at play, we believe it would be unwise for advisers to cease or even slow down compliance efforts.

AVOIDING A “GENERAL SOLICITATION” — Do’s and Don’ts

It is important for hedge fund managers to fully understand the breadth of Regulation D’s
prohibition on general solicitation or general advertising. In plain English, a fund
manager may as well give investors the right to “put” his or her investment back to the fund (at
cost) if the manager does not scrupulously follow these Do’s and Don’ts.

PART 3: DRAFTING BICE CONTRACTS

Under the new Fiduciary Rule, when relying on the Best Interest Contract Exemption (“BIC Exemption” or “BICE”), a written contract is required. The contract may be a separate agreement or its required terms may be incorporated into the adviser’s standard investment management agreement. Either way, the contract must meet various explicit requirements contained in the new Rule.

NEW FIDUCIARY RULE—What Investment Advisers Must Know

The voluminous new Fiduciary Rule will fundamentally change the way advisers deliver investment recommendations to retirement plan participants and IRA holders. To be certain, it presents fundamental challenges for advisers, brokers and insurance agents alike—although far more so in the case of brokers and agents. This presents significant opportunities for those advisers who are smart enough to spot them.

PORTABILITY: Use of Historical Performance at a Predecessor Firm

In the current environment, advisers with prior performance and a solid book of business are in high demand. If such advisers (or team of advisers) were solely responsible for achieving prior performance at a predecessor firm, the fact that the performance track record was established at a predecessor firm would not, in and of itself, bar the portability of the prior performance record.

ADVERTISING BY INVESTMENT ADVISERS—A Brief Overview

When the SEC adopted its modern advertising rules in 1961, it said that “advisers are professionals and should adhere to a stricter standard of conduct than that applicable to merchants.” As an investment adviser—whether state or SEC-registered—you are accountable for all of the information that is included in your advertising. In sum, the information therein must be truthful and supportable, and if it includes any performance results, you must follow the specific rules set forth herein, and have documentation supporting that performance.

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