SEC Proposes Amendments to the Qualified Client Standard

by Kay Gordon and Joshua M. O'Melia

Excerpt:

I. Introduction

On May 10, 2011, as required by Section 418 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"), the U.S. Securities and Exchange Commission (the "SEC") proposed to amend Rule 205-3 (the "Rule") of the U.S. Investment Advisers Act of 1940, as amended (the "Advisers Act") to increase the dollar thresholds used to determine whether an investment advisory client is a "qualified client" that can be subject to a performance fee paid by such client to an investment adviser.  The proposed amendments to the Rule (collectively, the "Proposed Rule Amendments") also (i) provide for a periodic inflation adjustment to the dollar thresholds used to determine the qualified client standard, (ii) exclude the value of a person's primary residence from the calculation of net worth under the Rule and (iii) add a transition provision to the Rule to allow for the continuation of certain arrangements (including certain new investments under such arrangements) that were permissible at the time the adviser and client entered into the advisory agreement. The SEC has requested that all comments on the Proposed Rule Amendments be received by the SEC on or before July 11, 2011.

II. Background

The Advisers Act and the rules thereunder generally do not permit registered investment advisers to be compensated based on a share of capital gains or capital appreciation of the funds of a client under such adviser's management (generally known as a performance fee or performance allocation) unless the client is a "qualified client," as defined under the Rule. In its current form, the Rule defines a "qualified client" as (i) a client with at least $750,000 under the management of the adviser immediately after entering into the advisory contract (the "AUM Threshold"), or (ii) a client that the adviser reasonably believes (a) has a net worth (in the case of a natural person, together with assets owned jointly by his or her spouse) of more than $1,500,000 at the time the advisory contract is entered into (the "Net Worth Threshold") or (b) is a "qualified purchaser," as defined in Section 2(a)(51)(A) of the U.S. Investment Company Act of 1940, as amended (the "Company Act").

The Dodd-Frank Act, among other provisions, amended the Advisers Act by requiring the SEC to adjust for inflation, by July 21, 2011 and every five years thereafter, the dollar tests used in all rules issued under Section 205(e) of the Advisers Act, including the qualified client test used in the Rule. Separately, the Dodd-Frank Act required the SEC to adopt a new definition of "accredited investor" under the U.S. Securities Act of 1933, as amended, to exclude the value of a person's primary residence. The SEC has proposed that the definition of "qualified client" under the Advisers Act be similarly amended. [footnotes omitted]

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Kay Gordon is a partner at K&L Gates LLP. Ms. Gordon practices in the firm's New York office and concentrates her work in the Investment Management practice, with a particular emphasis on hedge funds, private equity funds and compliance-related matters involving registered advisers and broker-dealers. She also advises clients on a broad range of securities and regulatory matters as well as a variety of financial instruments and transactions, including managed accounts, credit facilities, joint ventures and derivative instruments. She also represents clients in investigations by the SEC and other regulators.

Joshua M. O'Melia is an associate at K&L Gates LLP. Mr. O'Melia concentrates his work in the investment management practice, with a particular emphasis on hedge funds, private equity funds and compliance-related matters involving investment advisers and broker-dealers. He advises clients (including investment advisers, private domestic and offshore investment funds, broker-dealers and financial institutions) on structuring, organization, distribution, regulatory and compliance issues. He also assists clients undergoing investigations and examinations by the SEC and other regulatory organizations.