Fall 2011
Investment
Management
Update
Lawyers to the investment
management industry
For Private Fund Advisers,
“Back to School” Means
Getting Educated on the
SEC’s New Investment
Adviser Requirements
By Shoshana Thoma-Isgur
In this issue:
Overview of Pay-to-Play and Related Regulation of
Investment Advisers and Placement Agents.................................................................... 1
For Private Fund Advisers, “Back to School” Means Getting Educated on the
SEC’s New Investment Adviser Requirements.................................................................. 1
Mutual Funds Wary of Being Designated Systemically Important . ..................................... 2
Janus Impacting Year-Old SEC Asset Management Initiative.............................................. 4
Addressing Risks Under the FCPA and the U.K. Bribery Act............................................... 6
Definitional/Jurisdictional Issues Likely to Remain Even After
“Final” Regulations Defining Swaps.............................................................................. 8
Industry Events....................................................................................................... 14
Overview of Pay-to-Play and Related Regulation of
Investment Advisers and Placement Agents
By Beth R. Kramer, Kay A. Gordon, David Dickstein and Richard Guidice
Parties either doing or seeking to do business with government entities, such as public retirement
systems, in the United States are generally subject to an assortment of federal, state and local laws,
rules and regulations that restrict “pay-to-play” practices and other related activities. Investment advisers
and placement agents (including solicitors and other third-party marketers) that attempt to navigate
Despite the lethargy-inducing heat this
this regulatory landscape, which may be characterized as a minefield for the unwitting adviser or
past summer, the Securities and Exchange
placement agent, should take great caution to determine which restrictions apply to their business and/
Commission was busy issuing dozens of new
or employees and to properly comply with those restrictions to avoid potentially severe consequences.
rules and regulations that will change the
world in which private fund advisers operate.
In June and July, the SEC released final rules
that implement new registration and disclosure
requirements under the Investment Advisers
Act of 1940, which are mandated by last
year’s Dodd-Frank Wall Street Reform and
Consumer Protection Act. The Dodd-Frank Act
enacted large-scale, far-reaching changes to the
financial industry and especially the private fund
investment community. Among other provisions,
this sweeping legislation eliminated an
exemption under which a significant number of
The SEC’s recently adopted Pay-to-Play Rule (i.e., Rule 206(4)-5 under the Investment Advisers Act of
1940, as amended) addresses “pay-to-play” practices under which direct or indirect payments by
investment advisers or certain of their employees to state and local government officials are perceived
to improperly influence the award of government investment business. The SEC Pay-to-Play Rule, which
required compliance generally by March 14, 2011, prohibits an investment adviser from (i) providing
advisory services for compensation to a government-entity client for two years after the adviser or certain
of its executives or employees make a contribution to certain elected officials or candidates; (ii) providing
direct or indirect payments to any third party that solicits government entities for advisory business unless
this third party is a registered broker-dealer or investment adviser itself subject to “pay-to-play” restrictions;
and (iii) soliciting from others, or coordinating, contributions to certain elected officials or candidates or
payments to political parties where the adviser is providing or seeking government business. Advisers
subject to the Pay-to-Play Rule also must keep required books and records.
private fund advisers avoided SEC registration
Many states, cities and localities also regulate the “pay-to-play” practices of investment advisers and/or
and resulted in new disclosure requirements for
placement agents with respect to the solicitation of government business. These state “pay-to-play” laws
certain exempt advisers.
are, in some jurisdictions, more restrictive than the SEC Pay-to-Play Rule. For example, certain state “payto-play” statutes define the terms (or equivalent terms) “covered associate,” “contribution,” “government
continued on page 12
entity” and/or “government official” far more broadly than the SEC Pay-to-Play Rule. A number of these
continued on page 11
Fall 2011
1
Mutual Funds Wary of Being Designated
Systemically Important
By Collins Clark
Since the enactment of the Dodd-Frank Act, few issues have garnered more attention than the new
SIFI Regulation
regulatory framework designed to address risks posed by nonbank financial firms. Even though
the Dodd-Frank Act includes language suggesting that mutual funds would not likely be subject to
this new regime, uncertainty remains as to whether mutual funds could ultimately be designated
and made subject to this extensive new regulatory regime.
Once designated by the FSOC, SIFIs will be
subject to heightened supervision and regulation
by the Federal Reserve Board, including
additional capital and liquidity standards. The
FSOC can make recommendations regarding
SIFI Designation
Mutual funds and nonbank financial institutions
this enhanced regulation, but the Federal Reserve
of all types are engaged in active dialogue with
At the core of the new framework is the Financial
Board has ultimate responsibility for issuing
policymakers and the public in an attempt to
Stability Oversight Council (FSOC), which has the
and enforcing these macro-prudential rules. The
influence the FSOC’s guidelines. That dialogue is
authority to designate so-called SIFIs—systemically
deadline for these regulations to be finalized is
expected to grow even more intense as the initial
important nonbank financial institutions. To date,
January 2012, and Federal Reserve Chairman
SIFI designations draw nearer. Key questions
the FSOC has issued proposed rules relating to
Bernanke had stated a package of proposed
remain unanswered, including the number of
SIFI designation, but its proposals have been
rules would be released over the summer, but that
SIFIs that should be designated, whether a mutual
heavily criticized for simply restating the criteria for
timeline has slipped.
fund complex could be included, and whether
SIFI designation already stated in the statute itself.
designation guidelines will establish clear,
Although few details of the new regulatory regime
Proposed rules for SIFI designation and guidance
bright line rules or instead embody general,
are available, Governor Tarullo has stated the
for applying the rules are expected this fall, with
flexible principles.
“expected impact” methodology has informed
initial designations likely occurring in 2012.
the Federal Reserve’s thinking as it develops the
new macro-prudential framework. This approach
focuses on determining how much additional
capital is needed to equalize the expected
impact of a SIFI failure compared to the failure
2
Investment Management Update
of a non-SIFI. The so called “SIFI surcharge” will
The SEC held a public roundtable in May to
be scaled based on the size and risk profile of
consider additional money market fund reforms,
each institution. Furthermore, it is unclear how
and the House Financial Services Committee
heightened capital requirements would apply to
discussed the issue extensively during a hearing
mutual fund complexes, which traditionally have
this June. Lately, the so-called Squam Lake
not maintained extensive capital reserves.
proposal has received the most attention in the
In addition to Federal Reserve Board regulation,
a SIFI would be subject to FDIC rules requiring it
to maintain a resolution plan, or “living will,” in
the event of failure. The final living will rules were
approved by the FDIC September 13, 2011,
but the text has not been made public, pending
Federal Reserve approval. The FDIC previously
finalized rules establishing the priority of creditors’
press. Under this proposal, money market funds
would be required to set aside liquid assets as
a capital buffer against liquidity crises or severe
investment losses. Some press reports suggest the
SEC is also considering a hybrid approach, under
which a fund that fails to maintain the required
minimum buffer would have to convert to a
floating NAV within 60 days.
claims under its new Orderly Liquidation Authority.
Money Market Funds Targeted
Even if mutual funds in general are spared SIFI
designation, it appears increasingly likely that
money market funds will face significant reforms.
After the Reserve Primary Fund broke the buck
in September 2008, the SEC adopted various
money market fund reforms. Shortly thereafter,
the President’s Working Group on Financial
Markets issued a report finding the SEC’s reforms
inadequate. To reduce the susceptibility of money
market funds to investor runs, the Working Group
suggested various additional reforms, including
converting money market funds to a floating
NAV. These reforms are independent of the SIFI
designation regime, but they would be no less
significant for money market funds and are based
on an assumption that money market funds pose a
systemic risk.
Fall 2011
3
Janus Impacting Year-Old SEC Asset
Management Initiative
By Stephen J. Crimmins
On June 13, 2011, the Supreme Court’s Janus decision, Janus Capital Group, Inc. v. First
the fund in crafting what the fund said in the
Derivative Traders, 2011 WL 2297762 (June 13, 2011), significantly cut back the scope of
prospectuses but said that this was not enough
misstatement liability under Rule 10b-5, the principal securities antifraud provision, in private
securities litigation under the Securities Exchange Act of 1934. As discussed below, a September
22, 2011 ruling by the federal court in New York has now applied Janus to SEC enforcement
cases and has extended its holding both to certain “scheme” liability charges under Rule 10b-5
and to the Securities Act of 1933 antifraud provisions, which only the SEC can enforce.
to establish that the adviser itself “made”
the statements.
This ruling effectively blocks securities class actions
against persons who participate in the drafting
of an alleged false statement but who do not
themselves have ultimate control over its final
content and issuance. As the court said, “one who
The SEC has been particularly aggressive in
In assessing possible liability, Justice Thomas,
prepares or publishes a statement on behalf of
bringing enforcement cases against investment
writing for a divided 5-4 court, opted for what
another is not its maker.” The court also confirmed
management firms and professionals since forming
he termed a “clean line” distinction between
an earlier decision, Stoneridge Investment
a dedicated Asset Management Unit within its
persons liable for making a statement and
Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S.
Enforcement Division last year. The new unit,
persons who merely assisted in preparing the
148, 161 (2008), foreclosing such actions
comprised of approximately 65 lawyers and
statement. The court held that liability under Rule
against persons involved in allegedly deceptive
other professionals, works closely with the SEC’s
10b-5(b) should be limited to those who had
transactions, even when information about those
examinations staff and focuses on bringing cases
“control” over the content or dissemination of the
transactions is later incorporated into false
against advisers, funds and their personnel. It now
prospectuses that contained the alleged material
public statements.
appears that Janus and its progeny may impact
misstatement or omission. The court reasoned that
the scope of these efforts.
only persons with such control could be deemed
Investment Adviser and Fund
Administrator Not Liable
to have “made” the misstatement or omission, a
fundamental element of the rule.
Applying this “clean line” rule to the particular
In the Janus case, a private plaintiff claimed that
facts before it, the court rejected the argument
a holding company and its investment adviser
that the investment adviser’s participation in the
subsidiary should be held liable for making
preparation of the fund’s prospectuses somehow
allegedly misleading statements in prospectuses
rendered the adviser a “maker” of the statements
of certain funds they sponsored and for which
contained in the prospectus. The court said that
the subsidiary acted as investment adviser and
even if the adviser “was significantly involved
administrator. All of the fund officers were also
in preparing the prospectuses,” its assistance
officers of the adviser, and the adviser hosted fund
was still “subject to the ultimate control of” the
prospectuses on its own website. But the funds
fund, and for this reason the adviser could not
were organized as a separate legal entity with a
be said to have “made” any statements in the
separate board.
prospectuses. The court likened the adviser’s role
to that of a “speechwriter” who may have assisted
4
Investment Management Update
September 22nd Decision
Applying Janus to SEC and
Related Claims
On September 22, 2011, the federal court in
New York issued a decision that not only squarely
applied Janus in an enforcement case brought by
the SEC but also expanded the scope of the Janus
holding to cover related antifraud provisions, SEC
v. Kelly, 2011 WL 4431161 (S.D.N.Y. Sept. 22,
2011). The New York case involved charges that
two officers of a public company had allegedly
participated in their company’s issuance of false
and material information concerning certain sales
transactions over several years.
Responding to defendants’ motion for judgment
have addressed these issues since the Janus ruling
containing materially false statements and fools
on the pleadings, the SEC conceded that Janus
last June. A magistrate judge in Ohio declined to
both board and public into believing they are
applies to SEC cases as well as private securities
rely on Janus to dismiss “scheme” liability charges
true.” He observed that in such a case it was
litigation, and that it could not satisfy the Janus
where the court found that, apart from any
“unlikely” that the SEC could sue for a primary
standard under which, for liability under Rule
misrepresentations, the defendant was alleged
Rule 10b-5 violation because the management
10b-5(b), defendants must be shown to have
to have engaged in conduct “independently
did not “control” the content and dissemination
personally “made” a misrepresentation. However,
deceptive or fraudulent.” SEC v. Geswein,
of the prospectus and thus would not be primarily
the SEC attempted unsuccessfully to argue that
2011 U.S. Dist. LEXIS 111904, at *47 (N.D.
liable. And this in turn could make it impossible for
Janus should be limited to Rule 10b-5(b), covering
Ohio Aug. 2, 2011), adopted, rejected and
the SEC to establish “aiding and abetting” liability
the “making” of material misrepresentations and
modified in parts, 2011 U.S. Dist. LEXIS 111898
against the fraudulent actors. “That is because
that it should not be interpreted to cover other
(N.D. Ohio Sept 29, 2011). And a district
the managers, not having “ma[d]e” the statement,
antifraud provisions. Rule 10b-5(b) was the only
judge in California declined to extend Janus to
would not be liable as principals and there would
provision specifically involved in the Janus case.
Section 17(a) claims. SEC v. Daifotis, 2011 WL
be no other primary violator they might have tried
3295139, at *5-*6 (N.D. Cal. Aug. 1, 2011).
to “aid” or “abet.”
In particular, the New York court rejected the
SEC’s attempt to rely on the “scheme” liability
provisions contained in Rule 10b-5(a) and
(c), which can be used to impose liability on
Courts have not yet had an opportunity to assess
what impact Janus may have on the antifraud
provisions of the Investment Company Act and the
The Dodd-Frank Act strengthened the SEC’s
powers to pursue aiders and abettors. The SEC
Investment Advisers Act.
now need show simply that the aider and abettor
Limitations on Aiding and
Abetting Claims
SEC had to show “knowing” assistance. But the
with participating in transactions not inherently
A key tool that the SEC will attempt to use to
enactment in July 2010 and not retroactively.
deceptive. The action instead charged that
escape the limitations of Janus is the statutory
For this reason, in proving the vast bulk of cases
their company subsequently published alleged
provision that lets the SEC, unlike other litigants,
already in the SEC’s investigation and litigation
misrepresentations concerning their transactions.
sue so-called “aiders and abettors”—persons who
pipeline, the SEC will still have to show that an
The court observed that the “SEC’s complaint
substantially assist securities law violators. For
alleged aider and abettor knowingly assisted
defines the nature of the purported scheme
example, in SEC v. Big Apple Consulting USA,
the violation.
by explicit reference to the alleged public
Inc., 2011 WL 3759916 (M.D. Fla. Aug. 25,
misrepresentations,” and rejected this use of
2011), the SEC amended its complaint following
“scheme” allegations for a “backdoor” prosecution
Janus to withdraw primary claims under Rule 10b-
of alleged misrepresentations.
5 and replace them with claims that the individual
defendants who, while not “making” a false
statement, have participated in other allegedly
fraudulent conduct. The court reasoned that
defendants in the case before it were charged
Importantly, the court also rejected the SEC’s
attempt to rely on the separate antifraud
defendants had aided and abetted a non-party
entity and its CEO.
“recklessly” assisted the violator, where before the
courts will likely apply this relaxed standard only
to violative conduct occurring after Dodd-Frank’s
In sum, Janus has set the stage for a series of
possible lower court interpretations that may
significantly trim back – at least with respect to
primary liability fraud claims under the Securities
Act and the Securities Exchange Act - what the
SEC Enforcement Division hoped to achieve
provisions, available only to the SEC and not
However, Janus may also cause the SEC problems
with its new Asset Management Unit. It will bear
private plaintiffs, contained in Section 17(a) of
in pursuing aiding and abetting claims. Before
watching over the coming months just how much
the Securities Act of 1933. While the language
the SEC can pursue an aider and abettor, it
this enforcement initiative is affected by how the
of this section differs in certain respects from
must first be able to show a “primary” securities
lower courts interpret Janus.
Rule 10b-5, and it does not contain the explicit
law violation by another person or entity that
requirement that a defendant be shown to have
was the subject of the defendant’s aiding and
“made” a misstatement, the court still found that it
abetting conduct. By significantly narrowing
has long been held that the elements of Section
the opportunities for both the SEC and private
17(a) and Rule 10b-5 are “essentially the same,”
plaintiffs to show a primary violation in Janus, the
and it would be “inconsistent” for Janus to be
Supreme Court has in effect made it that much
interpreted as applying to one but not the
tougher for the SEC to bring “secondary” liability
other provision.
charges against aiders and abettors.
K&L Gates partners Stephen Topetzes, Glenn
Justice Breyer’s dissent in Janus, joined by Justices
Reichardt, Erin Ardale Koeppel and Stephen
Association’s Securities Law Section, and chairman of
Ginsburg, Sotomayor and Kagan, highlighted
Crimmins represented one of the two defendants
this problem by positing a situation where “guilty
the DC Bar’s Committee on Broker-Dealer Regulation
in successfully moving to strike the fraud claims
management writes a prospectus (for the board)
_________________________________________
Stephen J. Crimmins is a K&L Gates LLP partner in the
Washington DC and New York offices. His practice
focuses on the defense of SEC enforcement matters
and private securities litigation, and he previously
served as a senior officer of the SEC’s Enforcement
Division. He is the chairman of the Federal Bar
and SEC Enforcement.
in this New York case. Courts in two other cases
Fall 2011
5
Addressing Risks Under the FCPA and the
U.K. Bribery Act
By Matt T. Morley
Investment advisers are wise to consider focusing renewed attention to their potential risks under
Although U.S. law does not require companies to
the Foreign Corrupt Practices Act, which prohibits improper payments to non-U.S. government
have an FCPA compliance program, in practice,
officials. U.S. authorities describe enforcement of the FCPA as a “top priority,” and have
U.S. law enforcement officials now expect
brought nearly 150 FCPA cases in the last three years. Last year, nearly one-third of all criminal
fines and penalties collected by the Department of Justice related to FCPA violations, which
alone totaled $1 billion. Prosecutors say that they are looking for opportunities to bring cases
that every company involved in international
commerce will have taken meaningful steps
to prevent improper payments. Of course, no
compliance program can prevent every violation,
against individuals, as well as companies, and a number of corporate officers have been
but an effective corporate compliance program
sentenced to substantial prison terms.
can mitigate the consequences of any such
breach. By contrast, if an improper payment
Historically, FCPA cases involving the financial
Advisers that conduct business in the United
is made by a company that lacks an effective
services industry have been rare, but the SEC
Kingdom face these same issues under the U.K.’s
compliance regime, law enforcement authorities
recently initiated a broad investigation of financial
newly revised Bribery Act, which took effect on
are likely to seek particularly severe sanctions.
services firms regarding their dealings with
July 1, 2011. The Bribery Act, which potentially
sovereign wealth funds (SWFs). SWF personnel
applies to the worldwide activities of any
are considered to be “foreign officials” for
company with a business presence in the U.K., is
purposes of the FCPA, and improper benefits
similar to, but in some respects significantly more
provided in persuading them to invest in a fund
aggressive than, the FCPA. It prohibits corrupt
could violate the law.
payments not only to government officials, but
Investment advisers increasingly face questions
from a variety of sources about their compliance
with the FCPA. Existing or potential investors may
request information from funds or their advisers
about the policies and procedures in place to
prevent violations of the FCPA. Accounting firms
may request such information in connection with
their audits, and the topic may arise in the course
of SEC and FINRA inspections.
to any person. The Bribery Act also imposes
strict criminal liability on companies that fail to
prevent improper payments from being made
on the company’s behalf – without regard to
whether those payments were authorized by or
Establishing an effective
anticorruption compliance
program
Establishing an effective anticorruption
compliance program can be relatively simple and
cost-effective, and generally involves two steps:
risk assessment followed by risk mitigation.
Key to the process is recognizing it as dynamic
in the context of both steps.
even known to the company. The only defense
available to such a charge is to establish that the
company had in place “adequate procedures” to
prevent such payments from occurring.
Investment advisers increasingly face
questions from a variety of sources about their
compliance with the FCPA.
6
Investment Management Update
Risk assessment
The end-result will be some form of an evaluation
Risk assessment involves identifying and,
to distinguish the most significant, the least
It is a truism that the only constant in business
ultimately, evaluating the potential ways in which
significant, and one or more intermediate levels.
is change, and that is no less true with regard
the company’s operations may give rise to liability
It may be useful to organize this analysis in the
to evaluating the adequacy of a company’s
under the FCPA and/or the Bribery Act. This
form of a matrix, listing each form of bribery risk
anticorruption procedures. Over time, the
requires consideration of the various scenarios
alongside information as to the level of risk posed,
company may enter new lines of business,
under which company personnel, or someone
the existing and potential controls to prevent it,
or come to conduct its business in different
acting on the company’s behalf, might pay, offer,
and how it is or can be monitored.
environments or in different ways. The laws and
or authorize the payment of something of value in
connection with attempting to obtain business or
gain some other form of business advantage.
of the identified risks—the objective being
Risk mitigation
Informed by this risk assessment, the company can
Of course, the ways in which an improper
then consider which risks to attempt to mitigate,
payment might be made are limited only by
and what steps should be taken to mitigate those
human imagination, and identifying these ways
risks. Items that appear relatively unlikely or
requires imaginative and creative thinking
relatively insignificant ordinarily will call for a very
from the perspective of someone who wants
different response from those that are deemed to
to circumvent company policy and make such
be likely or of great consequence.
a payment. Common to most scenarios is the
fundamental issue of how to obtain cash or other
items of value and convey them to the bribe
recipient without being detected or prevented
from doing so. This exercise may benefit from
the participation of a variety of company
personnel—such as accountants, operations
managers, sales personnel—to consider the ways
in which this might be accomplished, whether
through exploiting deficiencies in internal controls,
In this regard, the information developed in
A dynamic process
regulations that apply to the business also may
change. Such developments may significantly
alter the nature of the risks faced by the business,
or the actions that can be taken to mitigate those
risks. News reports or case law developments
may illuminate previously unappreciated bribery
risks, or new ways of circumventing controls put
into place to prevent improper payments. The
adequacy of the company’s preventative efforts
should be revisited as necessary in light of
such developments.
the risk assessment exercise—specifically, the
identification of steps that might be taken to better
control or monitor each specific risk—should
provide a detailed menu of options to select
from in fashioning a program of policies and
procedures that is practical, well-thought out, and
proportionate to the bribery risks faced by
the company.
by enlisting the aid of persons responsible for
imposing those controls, through third parties, a
combination of each, or otherwise.
Once the range of potential ways of making,
offering, and authorizing an improper payment
have been identified, several questions should be
asked with regard to each one.
• How likely is it that this might occur?
• How serious might the consequences be
if it did?
• What controls are currently in place to
prevent this from occurring?
• What enhancements could be made to those
controls to reduce the likelihood that this
could occur?
• How would the company know whether this
had occurred?
Fall 2011
7
Definitional/Jurisdictional Issues Likely to Remain
Even After “Final” Regulations Defining Swaps
By Lawrence B. Patent
Financial market participants are anxiously awaiting the adoption of final regulations by the CFTC
and the SEC that will further define the terms “swap,” “security-based swap,” and “se-curity-based
swap agreement” under the Dodd-Frank Act. The agencies announced proposed regulations to
further define these terms, among others, in a joint Federal Register release (76 Fed. Reg. 29817,
What Is Exempt
• A foreign exchange forward is defined as “a
transaction that solely involves the exchange
of 2 different currencies on a specific future
May 23, 2011) (“Proposing Release”). The lack of final regulations regarding basic definitions has
date at a fixed rate agreed upon on the
caused the agencies to defer the effective date for swap regulation gener-ally, which was to have
inception of the contract covering
commenced on July 16, 2011. However, regardless of the regulations that the agencies eventually
the exchange.”
adopt to define the terms “swap,” “security-based swap,” and “secu-rity-based swap agreement,”
• A foreign exchange swap is defined as “a
several ancillary definitional and jurisdictional issues will remain of which firms should be aware.
transaction that solely involves — (A) an
exchange of 2 different currencies on a
Currency Products
specific date at a fixed rate that is agreed
exchange forwards traded on a designated
upon on the inception of the contract
As a part of the rulemaking structure under
contract market or a swap execution
covering the exchange; and (B) a re-verse
the Dodd-Frank Act, the Treasury Depart-ment
facility will be subject to applicable anti-
exchange of the 2 currencies described
recently issued its long-awaited notice of
manipulation provisions of the CEA; and
in subparagraph (A) at a later date and
proposed determination that “foreign exchange
swaps” and “foreign exchange forwards” are
exempt from the definition of “swap” under the
Commodity Exchange Act (“CEA”) (76 Fed. Reg.
25774, May 5, 2011). Even if this proposed
determination is finalized as expected, however,
parties dealing in foreign exchange swaps and
foreign exchange forwards, and in other
currency-related transactions, need to be aware
of the following:
• Foreign currency options, Non-Deliverable
Forward Contracts involving foreign
exchange (“NDFs”), currency swaps,
cross-currency swaps, and forward rate
agreements are not within the Treasury
Secretary’s exemptive authority, and thus are
subject to the Dodd-Frank definition
at a fixed rate that is agreed upon on the
inception of the contract covering
the exchange.”
These definitions are set forth in new CEA Sections
1a(24) and (25).
What Is Not Exempt
of “swap.”
The other types of currency-related transactions
Accordingly, entities that trade various currency-
referred to above (foreign currency op-tions,
related instruments should structure their trans-
NDFs, currency swaps, cross-currency swaps,
exchange forwards must be reported to a
actions carefully if they want the maximum
and forward rate agreements) are not subject to
swap data repository or to the CFTC;
possible relief from the regulations that are eventu-
Treasury’s exemptive authority, as explained in
ally adopted by the CFTC and the SEC under the
Treasury’s notice of proposed determination and
Dodd-Frank Act.
in the Proposing Release. This results from the fact
• All foreign exchange swaps and foreign
• A swap dealer or major swap participant
that is party to a foreign exchange swap or
foreign exchange forward must conform to
business conduct standards;
8
• Foreign exchange swaps and foreign
Investment Management Update
that these transactions either
Security-Based Swap
Agreements (“SBSA”)
What to Plan For
dollars—NDFs are so designated because
The Dodd-Frank Act divides the world basically
is at odds with the demarcations made by the
delivery is not lawful or practical due to
between swaps and security-based swaps, with
CFMA, which gave full jurisdiction over futures
existing currency controls, local law or other
the former under the jurisdiction of the CFTC and
on broad-based stock indices to the CFTC, and
restrictions), or
the latter under the jurisdiction of the SEC. In
joint jurisdiction to the agencies over futures on
addition, there is a narrow category of instruments
narrow-based stock indices and sin-gle-stock
defined as a “mixed swap,” which is subject to
futures. What financial market participants
joint CFTC-SEC jurisdiction (an example would be
and their counsel should keep in mind as the
an instrument that has one underlying reference
full panoply of swap regulation develops is
as the market price of crude oil and the other
that SBSAs exist. If a party enters into such
reference being the value of ExxonMobil stock).
an agreement, it must comply with the CFTC
Accordingly, these transactions will be treated
However, the Dodd-Frank Act also defines the
regulatory framework for day-to-day operations,
as swaps under the CEA. Therefore, par-ties that
term “security-based swap agreement,” which is
and not lose sight of the fact that both the CFTC
wish to enter into such transactions, but not be
a swap agreement of which “a material term is
and the SEC will have enforcement authority. This
subject to all of the Dodd-Frank Act re-quirements,
based on the price, yield, value, or volatility of
may become particularly problematic in an area
would need to find another basis for exemption,
any security or any group or index of securities,
such as insider trading, because that concept
such as the commercial end-user exception to
including any inter-est therein,” but does not
is a central focus of the securities laws and the
mandatory clearing set forth in new CEA Section
include a security-based swap. As noted in
SEC, and virtually nonexistent in the CEA context.
2(h)(7), based upon one of the parties thereto
the Proposing Release, SBSAs are swaps over
Although the agencies state in a footnote in the
being a commercial end-user that enters into the
which the CFTC has regulatory and enforcement
Proposing Release that they “are committed to
transactions to hedge or mitigate risk.
authority, but for which the SEC also has anti-
working cooperatively together regarding their
fraud, anti-manipulation and anti-insider trading
dual enforcement authority over SBSAs,” nothing
authority. The agencies cited as an example of
in the Dodd-Frank Act requires that the agencies
an SBSA a swap that is based on a broad-based
must agree before either can begin investigating
security index, such as the S&P 500 index.
possible violations or commence an enforcement
• Do not require the exchange of two different
currencies (foreign currency options and
NDFs, which are typically settled in U.S.
• They also require, in addition to the
exchange of two different currencies,
contin-gent or variable payments in
different currencies (currency and crosscurrency swaps).
What to Plan For
As noted above, to gain the maximum relief from
Dodd-Frank Act requirements, it will be necessary
The notion of overlapping jurisdiction for SBSAs
proceeding, and nothing prohibits separate
to structure agreements related to currencies so
The overlapping jurisdiction for SBSAs is a
that they come within the statutory definitions of
agency actions arising out of the same
holdover from the fact that, even though swaps
a foreign exchange swap or a foreign exchange
factual situation.
were generally unregulated under the CEA and
forward. Failing that, financial en-tities that want
the securities laws as a result of the Com-modity
to engage in certain types of currency swaps or
Futures Modernization Act of 2000 (“CFMA”), the
NDFs should consider finding a commercial end-
SEC maintained anti-fraud, anti-manipulation and
user as the counterparty, while also making sure
anti-insider trading authority over swaps during
that they do not engage in ac-tivity that could
the period prior to enactment of the Dodd-Frank
bring the financial entity within the swap dealer
Act. Although the SEC rarely invoked this authority
definition. (If one of the parties to a swap (i) is not
over the past decade, and it was perhaps little
a financial entity, i.e., it is a commercial end-user,
known to financial market participants, the SEC
(ii) uses the swap to hedge or mitigate commercial
did not want to lose this previously-held authority
risk, and (iii) notifies the CFTC how it generally
• The forward contract exclusion from the swap
concerning swaps as a result of enactment of the
meets its financial obli-gations associated with
definition will be interpreted con-sistent with
Dodd-Frank Act.
the CFTC’s historical interpretation of the
uncleared swaps, that party may claim exception
from the general clear-ing requirement for the
transaction.) Some of the currencies that are
Energy/Environmental
Commodities
For those entities involved in energy and
metals markets, the Proposing Release provides
encouraging guidance regarding the treatment of
forward contracts in non-financial commodities by
clarifying the following points:
forward contract exclusion from the definition
of the term “future delivery”;
presently subject to restric-tions on delivery outside
of the country of origin are those of Brazil, Chile,
China, Korea, India, Russia and Taiwan, so the
NDF market is not insignificant.
continued on page 10
Fall 2011
9
exclusion from the swap definition should apply to
a forward contract to be excluded from
environmental commodities. Commenters favoring
the swap and future delivery definitions,
the application of the exclusion were re-quested
Regulators, financial entities and commercial
and such intent will be evaluated under the
to describe environmental commodities and to
firms are faced with a daunting task to de-velop
CFTC’s established multifactor approach; and
explain how transactions can be physi-cally settled
and to comply with a new regulatory framework
if the commodity lacks a physical existence or
to govern swaps as mandated by the Dodd-
lacks a physical existence other than on paper.
Frank Act. Many of the provisions of the Act
• Book-out transactions that meet the
requirements of the “Brent Interpretation,” and
are interrelated, and some even appear to be
that are effectuated through a subsequent,
This apparent disparate treatment of a forward
contradictory. Even after the regulators adopt
separately negotiated agreement, will qualify
contract in crude oil or natural gas, versus
“final” regulations, many questions will remain.
for the forward contract exclusion from the
the treatment of a carbon offset or renewable
Hopefully, regulators will recognize this and be
swap definition.
energy certificate, points out the importance
prepared to provide further guidance through
that the CFTC places on delivery (see also the
interpretations and other relief as necessary.
discussion of NDFs, above). However, such
Commercial firms and financial entities should
apparent disparate treatment by the CFTC might
seek the advice of counsel to assist them in
be in conflict with the environmental policy of
navigating this new regulatory landscape.
On a less encouraging note, however, the
CFTC so far appears to be less forthcoming
with respect to “environmental commodities,”
such as emissions allowances, carbon off-sets/
credits, or renewable energy certificates. The
Proposing Release included a specific request
for comment on whether the forward contract
the Ad-ministration that is meant to encourage
the development of markets for environmental
commodi-ties. Such treatment could be another
unintended or anomalous consequence of the
Dodd-Frank Act.
10
Conclusion
• Intent to deliver is an essential element for
Investment Management Update
continued from page 1
Overview of Pay-to-Play and Related Regulation of
Investment Advisers and Placement Agents
jurisdictions also regulate various other activities
not covered by the SEC Pay-to-Play Rule. For
instance, some states require investment advisers
(which may include their in-house marketing
personnel) and third-party placement agents that
solicit business from public retirement systems to
register as lobbyists, clients of lobbyists or both.
Often associated with such registrations are filing
fees, recordkeeping requirements and filing of
periodic reports. Additionally, these jurisdictions
may limit, or in some cases completely prohibit,
an investment adviser’s use of third-party
placement agents or payment of contingent
compensation (including to an adviser’s own
employees) in connection with lobbying public
retirement systems. Furthermore, such jurisdictions
may restrict gift-giving to public officials, which
may include trustees, officers and/or employees
of public retirement systems, and may require an
investment adviser to make certain disclosures
prior to awarding a contract to that adviser and/
or on an ongoing basis during an existing contract
in an investment adviser’s Form ADV and may
term. In addition to the restrictions identified
that may be relevant with respect to such clients
have the effect of disqualifying an adviser from
above, many government entities, including
in addition to the requirements under the SEC
participating in an offering or sale of securities
public retirement systems, may have internal
Pay-to-Play Rule. Furthermore, investment advisers
pursuant to Rule 506 of Regulation D.
should implement policies and procedures
policies and procedures that impose further, and
potentially more onerous, limitations and reporting
Given the requirements of the SEC Pay-to-Play
obligations on advisers and placement agents.
Rule and the broad coverage of state, city and
local regulation in this realm, including extensive
Failure to comply with applicable federal, state
recordkeeping obligations, and the potentially
and local requirements, and internal retirement
serious consequences for noncompliance,
system policies and procedures, may result in
investment advisers and placement agents should
serious consequences for investment advisers
dedicate sufficient time and resources to determine
as well as placement agents, including, but not
whether and to what extent these restrictions
limited to, disgorgement of fees already received,
may be applicable to them and the appropriate
prohibition against receiving fees for services
steps they should take to foster compliance
rendered, denial of advisory contract awards
in this area. For example, advisers should
and/or termination of existing advisory contracts.
consider developing a system for identifying
Other consequences may include fines, which
existing government clients and vetting potential
may be severe in some cases, as well as criminal
government clients. In that connection, legal
charges. Criminal convictions stemming from
counsel should be consulted to better understand
such charges may be required to be disclosed
the state, city and local issues summarized above
reasonably designed to establish compliance with
applicable requirements, including recordkeeping
requirements. Advisers also should consider
whether to require pre-clearance and reporting of
political contributions and gifts in a manner that is
similar to the requirements advisers have in place
regarding personal trading.
Fall 2011
11
continued from page 1
For Private Fund Advisers, “Back to School”
Means Getting Educated on the SEC’s New
Investment Adviser Requirements
• Include assets, regardless of whether they are
family or proprietary assets, assets managed
for free or foreign clients’ assets (as long as the
adviser meets the definition of an “investment
adviser” under Advisers Act Section 202 with
regard to any of its clients).
Until now, private funds and their managers have
generally enjoyed a veil of anonymity that has
allowed them to go about their business away from
Registration and Reporting
Deadlines
the gaze of federal regulators. The Dodd-Frank
The SEC’s extended registration deadline now
Act has pierced a hole in that veil, and private
requires non-exempt fund advisers to be registered
fund advisers must ensure that they are ready
by March 30, 2012. Because the SEC’s rules
when federal regulators look their way. This article
allow it forty-five days to consider a registration
provides a general overview of the SEC’s new
application, advisers need to file their applications
registration and reporting regime under the Advisers
on or before February 14, 2012 to meet the March
Act, as it applies to private fund advisers. It further
30th deadline. Exempt advisers must make their
provides some guidance for advisers to private
“exempt reporting adviser” filing on an abbreviated
funds, and their counsel, to start planning now for
disclosure form between January 1 and March 30,
their regulatory future.
2012. This means advisers would be well served to
Private Adviser Exemption
Replaced by New Exemptions
Many private fund advisers previously relied on an
exemption from SEC registration in Section 203
of the Advisers Act that applied if they had fewer
than 15 clients (including “private funds” exempted
from investment company registration under Sections
3(c)(1) and 3(c)(7) of the Investment Company
Act of 1940). The Dodd-Frank Act eliminated that
exemption and replaced it generally with four
narrower Section 203 exemptions for the following
types of advisers.
• Venture capital fund advisers
• Foreign private advisers
begin preparing registration applications or exempt
adviser reports by mid-November 2011.
What an Adviser Should Do Now
• Mark deadlines.
• Define the scope of what needs to be done,
and the resources and time required.
• Get commitments from stakeholders in
the process.
• Designate who will head up the process (the
Chief Compliance Officer or equivalent).
• Start consulting counsel (since first-time
• Advisers to licensed small business investment
companies (or SBICs)
deducting “any outstanding indebtedness or
other accrued but unpaid liabilities” (which
means an adviser may not deduct accrued
fees, expenses or amounts of any borrowing or
securities purchased on margin).
• Include any uncalled capital commitments and
debt (for private funds especially).
• Value assets at market value or fair value if the
former is unavailable (not cost basis).
• Use of GAAP or an international equivalent is
preferable but not mandatory.
If an adviser estimates that its “regulatory assets”
will meet the SEC’s registration threshold within 120
days (of filing a registration application), the adviser
may register with the SEC on that basis under
Advisers Act Rule 203A-2.
What an Adviser Should Do Now
• Review current and planned fundraising efforts
and transactions.
• Contact outside accountants, auditors and
applicants must disclose a substantial amount
counsel to discuss asset calculation issues,
of information in a narrative format and
such as ongoing transactions, outstanding
will likely need the advice of counsel on
commitments, and debt to be acquired.
multiple issues).
• Advisers to private funds with less than $150
million in assets
• Calculate assets on a gross basis, without
“Regulatory Assets” Under
Management
To determine its registration status, a domestic private
• Formulate accurate methods for reasonably
estimating “regulatory assets.”
Internal Policies and
Procedures
Furthermore, even if venture capital and private fund
fund adviser must calculate its “regulatory assets” or
Registered advisers (and in some situations
advisers fit under their respective exemptions, they
the “securities portfolios with respect to which” an
unregistered exempt advisers) must follow Advisers
will be subject to the reporting and record-keeping
adviser “provides continuous and regular supervisory
Act rules that may necessitate internal changes and
requirements discussed below. Accordingly, advisers
or management services,” under Advisers Act
the adoption of policies and procedures that the
should begin apprising themselves of what they
Section 203A. The SEC has provided the following
adviser may not have deemed necessary before.
need to do to comply and when they need to do it.
guidance on calculating “regulatory assets” in its
The adviser’s internal policies and procedures should
June 22, 2011 Release No. IA-3221 (and Form
also be adopted and implemented by the funds the
ADV instructions).
adviser manages. Such policies and procedures
should include the following:
12
Investment Management Update
“Until now, private funds and their managers have generally enjoyed
a veil of anonymity that has allowed them to go about their business
away from the gaze of federal regulators. The Dodd-Frank Act has
pierced a hole in that veil and private fund advisers must ensure they
are ready when federal regulators look their way.”
Other Adviser Obligations
Rules promulgated under the Advisers Act compel
registered advisers to comply with custody rules
and use “qualified custodians,” such as banks and
registered broker-dealers, to hold client funds and
securities. Registered advisers will also be required
to report information on the private funds they
manage for the use of the newly created Financial
• A written, annually reviewed,
comprehensive SEC compliance program
and the appointment of a CCO to oversee
the program’s implementation and ongoing
application;
• A written anti-insider-trading policy, on
which all employees should receive
training;
• A code of ethics and personal trading
policy for “access persons” (such as the
adviser’s officers, directors and partners),
to address conflicts of interest and assist
advisers in upholding fiduciary duties;
• A written “pay to play” policy governing
an adviser’s political-contribution practices
and prohibitions to which an (exempt and
registered) adviser is subject (if the adviser
solicits, or is contemplating soliciting,
business from states or municipalities); and
• Policies and procedures for SEC
examinations to which all registered (and
exempt venture capital and private fund)
advisers are subject.
What an Adviser Should Do Now
• Begin reviewing current policies and
procedures and consult counsel to
formulate a plan to design and implement
additional policies required for
registered advisers.
• Determine all necessary compliance
information to be obtained on a routine
basis and all personnel from whom a
CCO will need to obtain it.
• Start the process of securing a CCO (if
one is not already in place).
Registration and Reporting
Advisers will use the SEC’s Form ADV as both a
registration application and as the subsequent
updating and reporting form for exempt and
non-exempt advisers. Form ADV Parts 1 and 2
are filed with the SEC; Form ADV Part 2, which
the SEC revamped last year, must be delivered to
prospective clients and offered to current clients. Part
Stability Oversight Council in its assessment of
systemic risk in the U.S. financial system. Both
registered advisers and those exempt advisers to
hedge funds and private funds must comply with
SEC record-keeping rules.
What an Adviser Should Do Now
• Begin reviewing the adviser’s custodial
2A is the advisory firm’s “brochure,” which requires
and record-keeping procedures, as well
the firm to disclose, among other items, financial
as the current level of compliance with
information, material changes to the adviser,
performance fees and compensation, strategies,
risks, potential conflicts of interest, and disciplinary
history, and to describe the firm’s code of ethics
and procedures. Part 2B, the newly implemented
“brochure supplement,” requires advisors to disclose
information about firm personnel who provide
those procedures (including procedures on
the retention of e-mail and other electronic
communications).
• Include those procedures in any internal plan to
develop required policies and procedures.
State Registration
investment advice or have discretionary authority
Even if an adviser is exempt from SEC registration,
over client funds. Among other items, this includes
state registration may still be mandatory, unless the
educational and business background information,
adviser fits under state registration exemptions. (In
disciplinary history, additional compensation, and
the wake of the Dodd-Frank Act, those exemptions
information on the supervision of subject personnel.
likely will be changing in some states.) Many state
Advisers must update their Form ADV and deliver
regulators have registration and reporting regimes
a “brochure” and “brochure supplement” to clients
similar to the SEC’s, so work undertaken to assess
annually or whenever certain material information
SEC registration status and to prepare for registration
has changed. Exempt venture capital fund and
and reporting obligations will still generally be
private fund advisers must file and update a partial
pertinent at the state level.
Form ADV Part 1 to disclose information, such as the
identity of control persons, information on the funds
being managed, risks, potential conflicts of interest,
and disciplinary history.
What an Adviser Should Do Now
• Review examples of Form ADV Part I and Part II
disclosures.
• Consult with counsel on potential issues, such
as conflicts of interest, disclosure of information
on managed funds, and disciplinary history.
What an Adviser Should Do Now
• Consult counsel on state registration
exemptions, and any proposed exemption
amendments, in the states in which an adviser
does business or has clients
When the 2011-2012 school year begins, private
fund advisers should begin studying and preparing
for their regulatory future; the SEC’s final exam is on
March 30, 2012.
Fall 2011
13
2011 Investment Management Conferences
At these conferences, lawyers from our Investment Management practice
will discuss a broad range of topics and practical issues. Each program will
also focus on current issues confronting the investment management industry,
including the regulatory changes that arise from the Dodd-Frank Act and
numerous SEC initiatives. Register online at www.klgates.com/events.
Wednesday and Thursday, November 2 and 3
Live at K&L Gates Washington, DC and video conferenced to K&L Gates Charlotte,
K&L Gates Dallas, K&L Gates Miami, K&L Gates Newark and K&L Gates Pittsburgh
Thursday, November 3
Live at K&L Gates Boston
Tuesday, November 8
Live in San Francisco and video conferenced to K&L Gates Los Angeles,
K&L Gates Orange County, K&L Gates San Diego and K&L Gates Seattle
Wednesday, November 9
Live at K&L Gates Chicago
Tuesday, December 6
Live in New York
14
Investment Management Update
Industry Events
Please visit our website at www.klgates.com for more information on the following upcoming investment
management events in which K&L Gates attorneys will be participating:
Stuart E. Fross: National Settlement Depository is a
Rule 17f-7 Eligible Securities Depository, SIBOS 2011
Toronto, September 20, 2011, Toronto, Canada
Paulita A. Pike: The Janus Decision and its Implications
for Boards, IDC Roundtable, Independent Directors
Council, September 22, 2011, Chicago, IL
Alan Goldberg: 2011 IAA Fall Compliance Workshop,
Investment Adviser Association, October 13, 2011,
Chicago, IL
Paul Dykstra and Paulita A. Pike: Board Oversight
of Performance, Mutual Fund Directors Forum and
Morningstar, October 11, 2011, Chicago, IL
Clifford J. Alexander, Ndenisarya M. Bregasi and
Michael S. Caccese: National Society of Compliance
Professionals Annual Meeting, October 17, 18 and 19,
2011, Baltimore, MD
Michael S. Caccese: Marketing by Investment Advisers,
ACA Compliance Group webcast, October 25, 2011
Paulita A. Pike: Regulatory and Litigation Developments:
Considerations for Fund Directors, Investment Company
Directors Conference, Independent Directors Council,
October 26, 2011, Chicago, IL
Ted Press: How the IRS’s Ruling Suspension Affects Funds,
Ignites October Exchange Webinar, October 27, 2011
Stephen J. Crimmins: Hedge Fund Enforcement and
Regulatory Developments 2011, Practising Law Institute,
November 21, 2011, New York, NY
Please join us for our Live Seminar and Webinar
Understanding the SEC’s Changing Role in
Mutual Fund Regulation
Tuesday, November 1, 2011, K&L Gates Washington, D.C., and via webinar.
4:00 p.m. to 5:30 p.m.
K&L Gates in association with Fund Director Intelligence, the Committee on BrokerDealer Regulation and SEC Enforcement of the District of Columbia Bar Association
and the Section on Securities Law of the Federal Bar Association present a
complimentary seminar focusing on mutual fund regulatory and governance issues.
This timely program will help industry participants better understand the SEC’s
perspective on these issues and plan for what’s ahead.
Speakers:
Douglas Scheidt, Associate Director and Chief Counsel of the
SEC’ Division of Investment Management
Robert Kaplan, Co-Chief of the Asset Management Unit of the
SEC’s Division of Enforcement
Eric Purple, Partner, K&L Gates, Washington, D.C.
Stephen Crimmins, Partner, K&L Gates, Washington, D.C.
Moderators:
Please join us for our Live Seminar
and Webinar
Competing Globally in the
Asset Management Industry
Tuesday, October 25, 2011, K&L
Gates Boston and via Webinar, 8:30
a.m. to 10:00 a.m.
What issues do investment advisers
need to address when offering
services and funds worldwide? This
event will answer that question and
many more. Our panel will focus on
a few key jurisdictions and how you
can penetrate their marketplace.
Speakers:
Martin W. Cornish
Partner, K&L Gates, London
Stuart E. Fross
Partner, K&L Gates, Boston
Nicholas S. Hodge
Partner, K&L Gates, Boston
Choo Lye Tan, Partner
K&L Gates, Hong Kong
To register for the live program
or webinar, please go to
www.klgates.com/events.
Hillary Jackson, Managing Editor of Fund Director Intelligence
Paulita A. Pike, Partner, K&L Gates, Chicago, IL
To register for this program, please go to www.klgates.com/events.
Please note that this event is closed to the press.
Fall 2011
15
To learn more about our Investment Management practice, we invite you to contact one of the lawyers listed below, or visit www.klgates.com.
Austin
Robert H. McCarthy, Jr.
512.482.6836
robert.mccarthy@klgates.com
Boston
Joel D. Almquist
Michael S. Caccese
Mark J. Duggan
Stuart E. Fross
Mark P. Goshko
Nicholas S. Hodge
Clair E. Pagnano
Trayne S. Wheeler
George Zornada
617.261.3104
617.261.3133
617.261.3156
617.261.3135
617.261.3163
617.261.3210
617.261.3246
617.951.9068
617.261.3231
joel.almquist@klgates.com
michael.caccese@klgates.com
mark.duggan@klgates.com
stuart.fross@klgates.com
mark.goshko@klgates.com
nicholas.hodge@klgates.com
clair.pagnano@klgates.com
trayne.wheeler@klgates.com
george.zornada@klgates.com
Chicago
Cameron S. Avery
Paul H. Dykstra
David P. Glatz
Alan P. Goldberg
Thomas F. Joyce
D. Mark McMillan
Paulita A. Pike
Donald S. Weiss
312.807.4302
312.781.6029
312.807.4295
312.807.4227
312.807.4323
312.807.4383
312.781.6027
312.807.4303
cameron.avery@klgates.com
paul.dykstra@klgates.com
david.glatz@klgates.com
alan.goldberg@klgates.com
thomas.joyce@klgates.com
mark.mcmillan@klgates.com
paulita.pike@klgates.com
donald.weiss@klgates.com
Fort Worth
Scott R. Bernhart 817.347.5277
Shashana L. Thoma-Isgur 817.347.5280
London
Martin W. Cornish
+44.20.7360.8162
Philip J. Morgan
+44.20.7360.8123
Los Angeles
William P. Wade
310.552.5071
New York
David Dickstein
212.536.3978
Kay A. Gordon
212.536.4038
Beth R. Kramer
212.536.4024
Orange County
Gordon F. Peery
949.623.3535
Raleigh
F. Daniel Bell III
919.743.7335
scott.bernhart@klgates.com
shashana.thoma-isgur@klgates.com
martin.cornish@klgates.com
philip.morgan@klgates.com
william.wade@klgates.com
david.dickstein@klgates.com
kay.gordon@klgates.com
beth.kramer@klgates.com
gordon.peery@klgates.com
dan.bell@klgates.com
San Francisco
Kurt J. Decko
415.249.1053
kurt.decko@klgates.com
J. Matthew Mangan
415.249.1046
matt.mangan@klgates.com
David Mishel
415.249.1015
david.mishel@klgates.com
Mark D. Perlow
415.249.1070
mark.perlow@klgates.com
Richard M. Phillips
415.249.1010
richard.phillips@klgates.com
Taipei
Christina C. Y. Yang
+886.2.2175.6797
christina.yang@klgates.com
Washington, D.C.
Clifford J. Alexander
202.778.9068
clifford.alexander@klgates.com
Diane E. Ambler
202.778.9886
diane.ambler@klgates.com
Mark C. Amorosi
202.778.9351
mark.amorosi@klgates.com
Catherine S. Bardsley
202.778.9289
catherine.bardsley@klgates.com
Ndenisarya M. Bregasi
202.778.9021
ndenisarya.bregasi@klgates.com
Yoon Y. Choo
202.778.9340
yoon.choo@klgates.com
Beth Clark
202.778.9432
beth.clark@klgates.com
Daniel F. C. Crowley
202.778.9447
dan.crowley@klgates.com
Arthur C. Delibert
202.778.9042
arthur.delibert@klgates.com
Stacy L. Fuller
202.778.9475
stacy.fuller@klgates.com
Susan Gault-Brown
202.778.9083
susan.gaultbrown@klgates.com
Jennifer R. Gonzalez
202.778.9286
jennifer.gonzalez@klgates.com
Robert C. Hacker
202.778.9016
robert.hacker@klgates.com
Kathy Kresch Ingber
202.778.9015
kathy.ingber@klgates.com
Rebecca H. Laird
202.778.9038
rebecca.laird@klgates.com
Deborah A. Linn
202.778.9874
deborah.linn@klgates.com
Cary J. Meer
202.778.9107
cary.meer@klgates.com
Marc Mehrespand
202.778.9191
marc.mehrespand@klgates.com
R. Charles Miller
202.778.9372
chuck.miller@klgates.com
Dean E. Miller
202.778.9371
dean.miller@klgates.com
R. Darrell Mounts
202.778.9298
darrell.mounts@klgates.com
Lawrence B. Patent
202.778.9219
lawrence.patent@klgates.com
C. Dirk Peterson
202.778.9324
dirk.peterson@klgates.com
David Pickle
202.778.9887
david.pickle@klgates.com
Alan C. Porter
202.778.9186
alan.porter@klgates.com
Theodore L. Press
202.778.9025
ted.press@klgates.com
Eric S. Purple
202.778.9220
eric.purple@klgates.com
Francine J. Rosenberger
202.778.9187
francine.rosenberger@klgates.com
Bruce A. Rosenblum
202.778.9239
bruce.rosenblum@klgates.com
Robert H. Rosenblum
202.778.9464
robert.rosenblum@klgates.com
William A. Schmidt
202.778.9373
william.schmidt@klgates.com
Lori L. Schneider
202.778.9305
lori.schneider@klgates.com
Lynn A. Schweinfurth
202.778.9876
lynn.schweinfurth@klgates.com
Donald W. Smith
202.778.9079
donald.smith@klgates.com
Fatima S. Sulaiman
202.778.9082
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