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Robare v. SEC: The D.C. Circuit “May” Have Punted on Key Disclosure Question, but Takes Clear Stand on “Willful” Conduct

On April 30, 2019, the U.S. Court of Appeals for the D.C. Circuit issued a long-awaited decision in Robare Group, LTD. v. SEC, providing valuable insight for investment advisers as to the level of detail courts expect to see in disclosures—both to clients and the Commission—with respect to conflicts of interest. The Robare court also concluded that the SEC cannot sustain a charge of “willfulness” with merely negligent conduct.

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Converting Traditional Open-End Funds into ETFs

Practices: Asset Management, Investment Management

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The Securities and Exchange Commission (the “SEC”) recently published a notice relating to an application for exemptive relief filed by Precidian ETFs Trust (“Precidian”) that would permit an actively managed exchange-traded fund (“ETF”) to operate without being subject to the current daily portfolio transparency condition included in past active ETF orders. We anticipate that this structure may be attractive to many active managers who may seek to offer their strategies as ETFs, including potentially through the conversion of an existing open-end fund into an ETF.

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