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SEC 2023 Exam Priorities Include Marketing Rule, Reg BI and Private Fund Advisers

The Securities and Exchange Commission’s division of examinations announced its 2023 examination priorities.

“In a time of growing markets, evolving technologies, and new forms of risk, our division of examinations continues to protect investors,” SEC Chair Gary Gensler said. “In executing against the 2023 priorities, the division will help ensure compliance with the federal securities laws and rules.”

“Our priorities reflect the changing landscape and associated risks in the securities market and are the product of a risk-based approach to examination selection that balances our resources across a diverse registrant base,” Richard R. Best, division of examinations’ director, said. “We will emphasize compliance with new SEC rules applicable to investment advisers and investment companies as well as continue our focus on emerging issues and rules aimed at protecting retail investors.”

The following are a selection of the division’s 2023 priorities:

New Investment Adviser and Investment Company Rules – The division will focus on the new Marketing Rule and whether registered investment advisers have adopted and implemented written policies and procedures that are reasonably designed to prevent violations by the advisers and their supervised persons of the new rule and whether RIAs have complied with the substantive requirements. The division will also focus on new rules applicable to investment companies, including the derivatives rule and fair valuation rule.

RIAs to Private Funds – Examinations will review issues under the Advisers Act, including an adviser’s fiduciary duty, and will assess risks, including a focus on compliance programs, fees and expenses, custody, the new marketing rule, conflicts of interest, and the use of alternative data. The division will also review private fund advisers’ portfolio strategies, risk management, and investment recommendations and allocations, focusing on conflicts and disclosures around these areas. In addition, the division will focus on RIAs to private funds with specific risk characteristics, including highly leveraged private funds and private funds managed side-by-side with business development companies.

Retail Investors and Working Families – The division will continue to address standards of conduct issues for broker-dealers and RIAs to ensure that retail investors and working families are receiving recommendations and advice in their best interests. Specifically, the SEC says these examinations will focus on how registrants are satisfying their obligations under regulation best interest and the advisers act fiduciary standard to act in the best interests of retail investors and not to place their own interests ahead of retail investors’. Examinations will include assessments of practices regarding review of investment alternatives, management of conflicts of interest, and consideration of investment goals and account characteristics.

Environmental, Social, and Governance (ESG) – The division will continue its focus on ESG-related advisory services and fund offerings, including whether funds are operating in the manner set forth in their disclosures. In addition, the division will assess whether ESG products are appropriately labeled and whether recommendations of such products for retail investors are made in the investors’ best interests.

Information Security and Operational Resiliency – The division will review broker-dealers’, RIAs’, and other registrants’ practices to prevent interruptions to mission-critical services and to protect investor information, records and assets. Reviews of broker-dealers and RIAs will include a focus on the cybersecurity issues associated with the use of third-party vendors, including registrant visibility into the security and integrity of third-party products and services and whether there has been an unauthorized use of third-party providers.

Emerging Technologies and Crypto-Assets – The division will conduct examinations of broker-dealers and RIAs that are using emerging financial technologies or employing new practices, including technological and on-line solutions to meet the demands of compliance and marketing and to service investor accounts. Examinations of registrants will focus on the offer, sale, recommendation of or advice regarding trading in crypto or crypto-related assets and include whether the firm met and followed their respective standards of care when making recommendations, referrals or providing investment advice; and routinely reviewed, updated, and enhanced their compliance, disclosure and risk management practices.

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