

[Federal Register: August 9, 2007 (Volume 72, Number 153)]
[Rules and Regulations]               
[Page 44756-44763]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09au07-12]                         

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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 275

[Release No. IA-2628; File No. S7-25-06]
RIN 3235-AJ67

 
Prohibition of Fraud by Advisers to Certain Pooled Investment 
Vehicles

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: The Securities and Exchange Commission is adopting a new rule 
that prohibits advisers to pooled investment vehicles from making false 
or misleading statements to, or otherwise defrauding, investors or 
prospective investors in those pooled vehicles. This rule is designed 
to clarify, in light of a recent court opinion, the Commission's 
ability to bring enforcement actions under the Investment Advisers Act 
of 1940 against investment advisers who defraud investors or 
prospective investors in a hedge fund or other pooled investment 
vehicle.

DATES: Effective Date: September 10, 2007.

FOR FURTHER INFORMATION CONTACT: David W. Blass, Assistant Director, 
Daniel S. Kahl, Branch Chief, or Vivien Liu, Senior Counsel, at 202-
551-6787, Division of Investment Management, Securities and Exchange 
Commission, 100 F Street, NE., Washington, DC 20549-5041.

SUPPLEMENTARY INFORMATION: The Commission is adopting new rule 206(4)-8 
under the Investment Advisers Act of 1940 (``Advisers Act'').\1\
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    \1\ 15 U.S.C. 80b. Unless otherwise noted, when we refer to the 
Advisers Act, or any paragraph of the Advisers Act, we are referring 
to 15 U.S.C. 80b of the United States Code, at which the Advisers 
Act is codified.
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I. Introduction

    On December 13, 2006, we proposed a new rule under the Advisers Act 
that would prohibit advisers to pooled investment vehicles from 
defrauding investors or prospective investors in pooled investment 
vehicles they advise.\2\ We proposed the rule in response to the 
opinion of the Court of Appeals for the District of Columbia Circuit in 
Goldstein v. SEC, which created some uncertainty regarding the 
application of sections 206(1) and 206(2) of the Advisers Act in 
certain cases where investors in a pool are defrauded by an investment 
adviser to that pool.\3\ In addressing the scope of the exemption from 
registration in section 203(b)(3) of the Advisers Act and the meaning 
of ``client'' as used in that section, the Court of Appeals expressed 
the view that, for purposes of sections 206(1) and (2) of the Advisers 
Act, the ``client'' of an investment

[[Page 44757]]

adviser managing a pool is the pool itself, not an investor in the 
pool. As a result, it was unclear whether the Commission could continue 
to rely on sections 206(1) and (2) of the Advisers Act to bring 
enforcement actions in certain cases where investors in a pool are 
defrauded by an investment adviser to that pool.\4\
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    \2\ Prohibition of Fraud by Advisers to Certain Pooled 
Investment Vehicles; Accredited Investors in Certain Private 
Investment Vehicles, Investment Advisers Act Release No. 2576 (Dec. 
27, 2006) [72 FR 400 (Jan. 4, 2007)] (the ``Proposing Release''). In 
the Proposing Release, we also proposed two new rules that would 
define the term ``accredited natural person'' under Regulation D and 
section 4(6) of the Securities Act of 1933 [15 U.S.C. 77d(6)] 
(``Securities Act''). As proposed, these rules would add to the 
existing definition of ``accredited investor'' and apply to private 
offerings of certain unregistered investment pools. On May 23, 2007, 
we voted to propose more general amendments to the definition of 
accredited investor. Proposed Modernization of Smaller Company 
Capital-Raising and Disclosure Requirements, Securities Act Release 
No. ---- (----, 2007) [72 FR ---- (----, 2007)]. We plan to defer 
consideration of our proposal to define the term accredited natural 
person until we have had the opportunity to evaluate fully the 
comments we received on that proposal together with those we receive 
on our May 2007 proposal.
    \3\ 451 F.3d 873 (D.C. Cir. 2006) (``Goldstein'').
    \4\ Prior to the issuance of the Goldstein decision, we brought 
enforcement actions against advisers alleging false and misleading 
statements to investors under sections 206(1) and (2) of the 
Advisers Act. See, e.g., SEC v. Kirk S. Wright, International 
Management Associates, LLC, Litigation Release No. 19581 (Feb. 28, 
2006); SEC v. Wood River Capital Management, LLC, Litigation Release 
No. 19428 (Oct. 13, 2005); SEC v. Samuel Israel III; Daniel E. 
Marino; Bayou Management, LLC; Bayou Accredited Fund, LLC; Bayou 
Affiliates Fund, LLC; Bayou No Leverage Fund, LLC; and Bayou 
Superfund, LLC, Litigation Release No. 19406 (Sept. 29, 2005); SEC 
v. Beacon Hill Asset Management LLC, Litigation Release No. 18745A 
(June 16, 2004).
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    In its opinion, the Court of Appeals distinguished sections 206(1) 
and (2) from section 206(4) of the Advisers Act, which is not limited 
to conduct aimed at clients or prospective clients of investment 
advisers.\5\ Section 206(4) provides us with rulemaking authority to 
define, and prescribe means reasonably designed to prevent, fraud by 
advisers.\6\ We proposed rule 206(4)-8 under this authority.
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    \5\ See Goldstein, supra note 3, at note 6. See also United 
States v. Elliott, 62 F.3d 1304, 1311 (11th Cir. 1995).
    \6\ Section 206(4) of the Advisers Act makes it unlawful for an 
investment adviser to ``engage in any act, practice, or course of 
business which is fraudulent, deceptive, or manipulative'' and 
authorizes us ``by rules and regulations [to] define, and prescribe 
means reasonably designed to prevent, such acts, practices, and 
courses of business as are fraudulent, deceptive, or manipulative.''
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    We received 45 comment letters in response to our proposal.\7\ Most 
commenters generally supported the proposal. Eighteen endorsed the rule 
as proposed, noting that the rule would strengthen the antifraud 
provisions of the Advisers Act or that the rule would clarify the 
Commission's enforcement authority with respect to advisers.\8\ Others, 
however, urged that we make revisions that would restrict the scope of 
the rule to more narrowly define the conduct or acts it prohibits.\9\
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    \7\ We received over 600 comment letters that addressed the 
proposed amendments to the term ``accredited natural person'' under 
Regulation D and section 4(6) of the Securities Act. All of the 
public comments we received are available for inspection in our 
Public Reference Room at 100 F Street, NE., Washington DC, 20549 in 
File No. S7-25-06, or may be viewed at http://www.sec.gov/comments/s7-25-06/s72506.shtml
.

    \8\ E.g., Letter of the Alternative Investments Compliance 
Association (Mar. 5, 2007); Letter of the CFA Center for Financial 
Market Integrity (Mar. 9, 2007) (``CFA Center Letter''); Letter of 
the Coalition of Private Investment Companies (Mar. 9, 2007); Letter 
of the Commonwealth of Massachusetts (Mar. 9, 2007) (``Massachusetts 
Letter''); Letter of the Department of Banking of the State of 
Connecticut (Mar. 8, 2007); Letter of the North America Securities 
Administrators Association (Apr. 2, 2007) (``NASAA Letter''); and 
Letter of the U.S. Chamber of Commerce (Mar. 9, 2007). Another 
commenter observed that the proposed rules are broadly similar to 
current U.K. legislation and regulations. See Letter of Alternative 
Investment Management Association (Mar. 9, 2007) (``AIMA Letter'').
    \9\ E.g., Letter of American Bar Association (Mar. 12, 2007) 
(``ABA Letter''); Letter of Davis Polk & Wardwell (Mar. 9, 2007) 
(``Davis Polk Letter''); Letter of Dechert LLP (Mar. 8, 2007) 
(``Dechert Letter''); Letter of New York City Bar (Mar. 8, 2007) 
(``NYCB Letter''); Letter of Schulte Roth & Zabel LLP (Mar. 9, 2007) 
(``Schulte Roth Letter''); and Letter of Sullivan & Cromwell LLP 
(Mar. 9, 2007) (``Sullivan & Cromwell Letter'').
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    Today, we are adopting new rule 206(4)-8 as proposed. The rule 
prohibits advisers from (i) making false or misleading statements to 
investors or prospective investors in hedge funds and other pooled 
investment vehicles they advise, or (ii) otherwise defrauding these 
investors. The rule clarifies that an adviser's duty to refrain from 
fraudulent conduct under the federal securities laws extends to the 
relationship with ultimate investors and that the Commission may bring 
enforcement actions under the Advisers Act against investment advisers 
who defraud investors or prospective investors in those pooled 
investment vehicles.

II. Discussion

    Rule 206(4)-8 prohibits advisers to pooled investment vehicles from 
(i) making false or misleading statements to investors or prospective 
investors in those pools or (ii) otherwise defrauding those investors 
or prospective investors. We will enforce the rule through civil and 
administrative enforcement actions against advisers who violate it.
    Section 206(4) authorizes the Commission to adopt rules and 
regulations that ``define, and prescribe means reasonably designed to 
prevent, such acts, practices, and courses of business as are 
fraudulent, deceptive, or manipulative.'' In adopting rule 206(4)-8, we 
intend to employ all of the broad authority that Congress provided us 
in section 206(4) and direct it at adviser conduct affecting an 
investor or potential investor in a pooled investment vehicle.

A. Scope of Rule 206(4)-8

    Some commenters questioned the scope of the rule, arguing that the 
Commission should define fraud.\10\ We believe that we have done so, 
only more broadly than some commenters would have us do. As the 
Proposing Release indicated, our intent is to prohibit all fraud on 
investors in pools managed by investment advisers. Congress expected 
that we would use the authority provided by section 206(4) to 
``promulgate general antifraud rules capable of flexibility.'' \11\ The 
terms material false statements or omissions and ``acts, practices, and 
courses of business as are fraudulent, deceptive, or manipulative'' 
encompass the well-developed body of law under the antifraud provisions 
of the federal securities laws. The legal authorities identifying the 
types of acts, practices, and courses of business that are fraudulent, 
deceptive, or manipulative under the federal securities laws are 
numerous, and we believe that the conduct prohibited by rule 206(4)-8 
is sufficiently clear and well understood.\12\
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    \10\ E.g., ABA Letter, supra note 9; Letter of Debevoise & 
Plimpton LLP (Mar. 14, 2007); and NYCB Letter, supra note 9.
    \11\ S. Rep. No. 1760, 86th Cong., 2d. Sess. (June 28, 1960) at 
4. See rule 206(4)-1(a)(5) [17 CFR. 275.206(4)-1(a)(5)] under the 
Advisers Act; rule 17j-1(b) [17 CFR 270.17j-1(b)] under the 
Investment Company Act of 1940 [15 U.S.C. 80a-1] (``Investment 
Company Act''); and rule 13e-3(b)(1) [17 CFR 240.13e-3(b)(1)] under 
the Securities Exchange Act of 1934 [15 U.S.C. 77a] (``Exchange 
Act'').
    \12\ Loss, Seligman, & Paredes, Securities Regulation, Chap. 9 
(Fraud) (Fourth Ed. 2006); Hazen, Treatise on The Law of Securities 
Regulation, Vol. 3, Ch. 12 (Manipulation and Fraud--Civil Liability; 
Implied Private Remedies; SEC Rule 10b-5; Fraud in Connection With 
the Purchase or Sale of Securities; Improper Trading on Nonpublic 
Material Information) (Fifth Ed. 2005). See, e.g., Superintendent of 
Insurance of New York v. Bankers Life & Casualty Co., 404 U.S. 6, 11 
n. 7 (1971) (`` `We believe that section 10(b) and Rule 10b-5 
prohibit all fraudulent schemes in connection with the purchase or 
sale of securities, whether the artifices employed involve a garden 
type variety of fraud, or present a unique form of deception. Novel 
or atypical methods should not provide immunity from the securities 
laws.' '' (quoting A. T. Brod & Co. v. Perlow, 375 F.2d 393, 397 
(CA2 1967))); Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 477 
(1977) (``No doubt Congress meant to prohibit the full range of 
ingenious devices that might be used to manipulate securities 
prices.''). Moreover, the established legal principles are 
sufficiently flexible to encompass future novel factual scenarios. 
United States v. Brown, 555 F.2d 336, 339-40 (2d Cir. 1977) (``The 
fact that there is no litigated fact pattern precisely in point may 
constitute a tribute to the cupidity and ingenuity of the 
malefactors involved but hardly provides an escape from the penal 
sanctions of the securities fraud provisions here involved.'').
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1. Investors and Prospective Investors
    Rule 206(4)-8 prohibits investment advisers from making false or 
misleading statements to, or engaging in other fraud on, investors or 
prospective investors in a pooled investment vehicle they manage. The 
scope of the rule is modeled on that of sections 206(1) and (2) of the 
Advisers Act, which make unlawful fraud by advisers against clients or 
prospective clients. Rule 206(4)-8 prohibits false or misleading 
statements made, for example, to existing investors in account 
statements

[[Page 44758]]

as well as to prospective investors in private placement memoranda, 
offering circulars, or responses to ``requests for proposals,'' 
electronic solicitations, and personal meetings arranged through 
capital introduction services.
    Some commenters argued that the rule should not prohibit fraud 
against prospective investors in a pooled investment vehicle, asserting 
that such fraud does not actually harm investors until they, in fact, 
make an investment.\13\ We disagree. False or misleading statements and 
other frauds by advisers are no less objectionable when made in an 
attempt to draw in new investors than when made to existing 
investors.\14\ For similar policy reasons that we believe led Congress 
to apply the protections of sections 206(1) and (2) to prospective 
clients, we have decided to apply those of rule 206(4)-8 to prospective 
investors.\15\ We believe that prohibiting false or misleading 
statements made to, or other fraud on, any prospective investors is a 
means reasonably designed to prevent fraud.
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    \13\ Davis Polk Letter, supra note 9; Dechert Letter, supra note 
9; NYCB Letter, supra note 9; Letter of the Securities Industry and 
Financial Markets Association (Mar. 9, 2007); Sullivan & Cromwell 
Letter, supra note 9.
    \14\ See CFA Center Letter, supra note 8.
    \15\ We have used the term ``prospective investor'' to give the 
term similar scope to the term ``prospective client'' in sections 
206(1) and (2). See, e.g., In the Matter of Ralph Harold Seipel, 38 
S.E.C. 256, 257-58 (1958) (the solicitation of clients is part of 
the activity of an investment adviser and it is immaterial for 
purposes of an enforcement action under sections 206(1) and (2) that 
an adviser engaging in fraudulent solicitations was not successful 
in his efforts to obtain clients).
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2. Unregistered Investment Advisers
    Rule 206(4)-8 applies to both registered and unregistered 
investment advisers.\16\ As we noted in the Proposing Release, many of 
our enforcement cases against advisers to pooled investment vehicles 
have been brought against advisers that are not registered under the 
Advisers Act, and we believe it is critical that we continue to be in a 
position to bring actions against unregistered advisers that manage 
pools and that defraud investors in those pools.\17\ The two commenters 
that expressed an explicit view on this aspect of the proposal 
supported our application of the rule to advisers that are not 
registered with the Commission.\18\
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    \16\ A few commenters requested that we clarify how we intend to 
apply rule 206(4)-8 to offshore advisers' interaction with non-U.S. 
investors. See AIMA Letter, supra note 8; Letter of Jones Day (Mar. 
9, 2007); Sullivan & Cromwell Letter, supra note 9. Our adoption of 
this rule will not alter our jurisdictional authority.
    \17\ Proposing Release, supra note 2, at note 14.
    \18\ Massachusetts Letter, supra note 8; NASAA Letter, supra 
note 8.
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3. Pooled Investment Vehicles
    The rule we are adopting today applies to investment advisers with 
respect to any ``pooled investment vehicle'' they advise. The rule 
defines a pooled investment vehicle \19\ as any investment company 
defined in section 3(a) of the Investment Company Act \20\ and any 
privately offered pooled investment vehicle that is excluded from the 
definition of investment company by reason of either section 3(c)(1) or 
3(c)(7) of the Investment Company Act.\21\ As a result, the rule 
applies to advisers to hedge funds, private equity funds, venture 
capital funds, and other types of privately offered pools that invest 
in securities, as well as advisers to investment companies that are 
registered with us.\22\
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    \19\ Rule 206(4)-8(b).
    \20\ 15 U.S.C. 80a-3(a). Unless otherwise noted, when we refer 
to the Investment Company Act, or any paragraph of the Investment 
Company Act, we are referring to 15 U.S.C. 80a of the United States 
Code, at which the Company Act is codified.
    \21\ Section 3(c)(1) of the Investment Company Act excludes from 
the definition of investment company an issuer the securities (other 
than short-term paper) of which are beneficially owned by not more 
than 100 persons and that is not making or proposing to make a 
public offering of its securities. Section 3(c)(7) of the Investment 
Company Act excludes from the definition of investment company an 
issuer the outstanding securities of which are owned exclusively by 
persons who, at the time of acquisition of such securities, are 
``qualified purchasers'' and that is not making or proposing to make 
a public offering of its securities. ``Qualified purchaser'' is 
defined in section 2(a)(51) of the Investment Company Act generally 
to include a natural person (or a company owned by two or more 
related natural persons) who owns not less than $5,000,000 in 
investments; a person, acting for its own account or accounts of 
other qualified purchasers, who owns and invests on a discretionary 
basis, not less than $25,000,000; and a trust whose trustee, and 
each of its settlors, is a qualified purchaser.
    \22\ We have brought enforcement actions under the Advisers Act 
against advisers to these types of funds. See, e.g., In the Matter 
of Askin Capital Management, L.P and David J. Askin, Investment 
Advisers Act Release No. 1492 (May 23, 1995) (hedge fund); In the 
Matter of Thayer Capital Partners, Investment Advisers Act Release 
No. 2276 (Aug. 12, 2004) (private equity fund); SEC v. Michael A. 
Liberty, Litigation Release No. 19601 (Mar. 8, 2006) (venture 
capital fund).
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    Several commenters supported applying the protection of the new 
antifraud rule to investors in all these kinds of pooled investment 
vehicles, noting, for example, that every investor, not just the 
wealthy or sophisticated that typically invest in private pools, should 
be protected from fraud.\23\ Some other commenters urged us not to 
apply the rule to advisers to registered investment companies, arguing 
that the rule is unnecessary because other provisions of the federal 
securities laws prohibiting fraud are available to the Commission to 
address these matters.\24\ They expressed concern that application of 
another antifraud provision with different elements would be 
burdensome. These commenters claimed that the rule would, for example, 
make it necessary for advisers to conduct extensive reviews of all 
communications with clients. But the other antifraud provisions 
available to us contain different elements because they were not 
specifically designed to address frauds by investment advisers with 
respect to investors in pooled investment vehicles. In some cases, the 
other antifraud provisions may not permit us to proceed against the 
adviser.\25\ As a result, the existing antifraud provisions may not be 
available to us in all cases. As we discussed above, before the 
Goldstein decision we had brought actions against advisers to mutual 
funds under sections 206(1) and (2) for defrauding investors in mutual 
funds.\26\ Because, before the Goldstein decision, advisers to pooled 
investment vehicles operated with the understanding that the Advisers 
Act prohibited the conduct that this rule prohibits, we believe that 
advisers that are attentive to their traditional compliance 
responsibilities will not need to alter their business practices or 
take additional steps and incur new costs as a result of this rule's 
adoption.
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    \23\ E.g., NASAA Letter, supra note 8.
    \24\ E.g., ABA Letter, supra note 9; Letter of Investment 
Adviser Association (Mar. 9, 2007); Letter of Investment Company 
Institute (Mar. 9, 2007) (``ICI Letter''); Sullivan & Cromwell 
Letter, supra note 9. Commenters noted in particular that section 
34(b) of the Investment Company Act already prohibits an adviser 
from making fraudulent material statements or omissions in a fund's 
registration statement or in required records.
    \25\ This may be the case with respect to section 34(b) of the 
Investment Company Act, for example, if the adviser's fraudulent 
statements are not made in a document described in that section, or 
with respect to rule 10b-5 under the Exchange Act, where the 
fraudulent conduct does not relate to a misstatement or omission in 
connection with the purchase or sale of any security.
    \26\ See, e.g., In the Matter of Van Kampen Investment Advisory 
Corp., Investment Advisers Act Release No. 1819 (Sept. 8, 1999); In 
the Matter of The Dreyfus Corporation, Investment Advisers Act 
Release No. 1870 (May 10, 2000); In the Matter of Federated 
Investment Management Company, Investment Advisers Act Release No. 
2448 (Nov. 28, 2005).
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B. Prohibition on False or Misleading Statements

    Rule 206(4)-8(a)(1) prohibits any investment adviser to a pooled 
investment vehicle from making an untrue statement of a material fact 
to any investor or prospective investor in the pooled investment 
vehicle, or omitting to state a material fact necessary in order to 
make the statements made to any investor or

[[Page 44759]]

prospective investor in the pooled investment vehicle, in the light of 
the circumstances under which they were made, not misleading.\27\
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    \27\ A fact is material if there is a substantial likelihood 
that a reasonable investor in making an investment decision would 
consider it as having significantly altered the total mix of 
information available. Basic, Inc. v. Levinson, 485 U.S. 224, 231-32 
(1988); TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449 
(1976). See also In the Matter of Van Kampen Investment Advisory 
Corp., supra note 26; In the Matter of the Dreyfus Corporation, 
supra note 26.
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    The provision is very similar to those in many of our antifraud 
laws and rules that, depending upon the circumstances, may also be 
applicable to the same investor communications.\28\ Sections 206(1) and 
(2) have imposed similar obligations on advisers since 1940 and, before 
Goldstein, were commonly accepted as imposing similar requirements on 
communications with investors in a fund. For these reasons, and because 
the nature of the duty to communicate without false statements is so 
well developed in current law, we believe that commenters' concerns 
about the breadth of the prohibition or any chilling effect the new 
rule might have on investor communications are misplaced.\29\ Advisers 
to pooled investment vehicles attentive to their traditional compliance 
responsibilities will not need to alter their communications with 
investors.
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    \28\ See, e.g., sections 12 and 17 of the Securities Act [15 
U.S.C. 77l, 77q]; section 14 of the Exchange Act [15 U.S.C. 78n]; 
section 34 of the Investment Company Act; rules 156, 159, and 610 
under the Securities Act [17 CFR 230.156, 230.159, 230.610]; rules 
10b-5, 13e-3, 13e-4, and 15c1-2 under the Exchange Act [17 CFR 
240.10b-5, 240.13e-3, 240.13e-4, 240.15c1-2]; and rule 17j-1 under 
the Investment Company Act [17 CFR 270.17j-1]).
    \29\ Letter of Managed Funds Association (Mar. 9, 2007) (``MFA 
Letter''); NYCB Letter, supra note 9; Davis Polk Letter, supra note 
9; Dechert Letter, supra note 9; Letter of Seward & Kissel LLP (Mar. 
8, 2007) (``Seward & Kissel Letter'').
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    Rule 206(4)-8(a)(1) prohibits advisers to pooled investment 
vehicles from making any materially false or misleading statements to 
investors in the pool regardless of whether the pool is offering, 
selling, or redeeming securities. While the new rule differs in this 
aspect from rule 10b-5 under the Exchange Act, the conduct prohibited 
is similar. The new rule prohibits, for example, materially false or 
misleading statements regarding investment strategies the pooled 
investment vehicle will pursue, the experience and credentials of the 
adviser (or its associated persons), the risks associated with an 
investment in the pool, the performance of the pool or other funds 
advised by the adviser, the valuation of the pool or investor accounts 
in it, and practices the adviser follows in the operation of its 
advisory business such as how the adviser allocates investment 
opportunities.\30\
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    \30\ We have previously brought enforcement actions alleging 
these or similar types of frauds. See Proposing Release, supra note 
2, at note 29.
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C. Prohibition of Other Frauds

    Rule 206(4)-8(a)(2) makes it a fraudulent, deceptive, or 
manipulative act, practice, or course of business for any investment 
adviser to a pooled investment vehicle to ``otherwise engage in any 
act, practice, or course of business that is fraudulent, deceptive, or 
manipulative with respect to any investor or prospective investor in 
the pooled investment vehicle.'' \31\ As we noted in the Proposing 
Release, the wording of this provision is drawn from the first sentence 
of section 206(4) and is designed to apply more broadly to deceptive 
conduct that may not involve statements.\32\
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    \31\ Rule 206(4)-8(a)(2).
    \32\ See Section II.C of the Proposing Release, supra note 2.
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    Some commenters asserted that section 206(4) provides us authority 
only to adopt prophylactic rules that explicitly identify conduct that 
would be fraudulent under the new rule.\33\ We believe our authority is 
broader. We do not believe that the commenters' suggested approach 
would be consistent with the purposes of the Advisers Act or the 
protection of investors. That approach would have us adopt the rule 
prohibiting fraudulent communications but not fraudulent conduct.\34\ 
But, section 206(4) itself specifically authorizes us to adopt rules 
defining and prescribing ``acts, practices and courses of business,'' 
(i.e., conduct), and does not explicitly refer to communications, 
which, nonetheless, represent a form of an act, practice, or course of 
business. In addition, rule 206(4)-8 as adopted would provide greater 
protection to investors in pooled investment vehicles.
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    \33\ ABA Letter, supra note 9; ICI Letter, supra note 24; 
Schulte Roth Letter, supra note 9; Sullivan & Cromwell Letter, supra 
note 9.
    \34\ See, e.g., ABA Letter, supra note 9.
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    Alternatively, commenters would have us adopt a rule prohibiting 
identified known fraudulent conduct or would have us provide detailed 
commentary describing specific forms of fraudulent conduct that the 
rule would prohibit.\35\ Either approach would fail to prohibit 
fraudulent conduct we did not identify, and could provide a roadmap for 
those wishing to engage in fraudulent conduct. This approach would be 
inconsistent with our historical application of the federal securities 
laws under which broad prohibitions have been applied against specific 
harmful activity.
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    \35\ Id.
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D. Other Matters

    We noted in the Proposing Release that, unlike violations of rule 
10b-5 under the Exchange Act, the Commission would not need to 
demonstrate that an adviser violating rule 206(4)-8 acted with 
scienter.\36\ Commenters questioned whether the rule should encompass 
negligent conduct, arguing that it would ``expand the concept of fraud 
itself beyond its original meaning.'' \37\ We read the language of 
section 206(4) as not by its terms limited to knowing or deliberate 
conduct. For example, section 206(4) encompasses ``acts, practices, and 
courses of business as are * * * deceptive,'' thereby reaching conduct 
that is negligently deceptive as well as conduct that is recklessly or 
deliberately deceptive. In addition, the Court of Appeals for the 
District of Columbia Circuit concluded that ``scienter is not required 
under section 206(4).'' \38\ We believe use of a negligence standard 
also is appropriate as a method reasonably designed to prevent fraud. 
As the Supreme Court noted in U.S. v. O'Hagan, ``[a] prophylactic 
measure, because its mission is to prevent, typically encompasses more 
than the core activity prohibited.'' \39\ In O'Hagan, the Court held 
that under section 14(e) ``the Commission may prohibit acts, not 
themselves fraudulent under the common law or Sec.  10(b), if the 
prohibition is `reasonably designed to prevent * * * acts and practices 
[that] are fraudulent.' '' \40\ Along these lines, the prohibitions in 
rule 206(4)-8 are reasonably designed to prevent fraud. We believe 
that, by taking sufficient care to avoid negligent conduct, advisers 
will be more likely to avoid reckless deception. Since the Commission 
clearly is authorized to prescribe

[[Page 44760]]

conduct that goes beyond fraud as a means reasonably designed to 
prevent fraud, prohibiting deceptive conduct done negligently is a way 
to accomplish this objective.
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    \36\ Section II.B of the Proposing Release, supra note 2.
    \37\ See ABA Letter, supra note 9 at page 3.
    \38\ SEC v. Steadman, 967 F.2d 636, at 647 (D.C. Cir. 1992). The 
court in Steadman analogized section 206(4) of the Advisers Act to 
section 17(a)(3) of the Securities Act, which the Supreme Court had 
held did not require a finding of scienter, id. (citing Aaron v. 
SEC, 446 U.S. 680 (1980)). In discussing section 17(a)(3) and its 
lack of a scienter requirement, the Steadman court observed that, 
similarly, a violation of section 206(2) of the Advisers Act could 
rest on a finding of simple negligence. Id. at 643, note 5. But see 
Aaron at 690-91 (citing Ernst & Ernst v. Hochfelder, 425 U.S. 185, 
199 (1976)); cf. S. Rep. No. 1760, 86th Cong., 2d. Sess. (June 28, 
1960) at 8 and H. R. Rep. 2179, 86th Cong., 2d Sess. (Aug. 26, 1960) 
at 8 (comparing section 206(4) to section 15(c)(2) of the Exchange 
Act).
    \39\ U.S. v. O'Hagan, 521 U.S. 642, 672-73 (1997).
    \40\ Id. at 673.
---------------------------------------------------------------------------

    Rule 206(4)-8 does not create under the Advisers Act a fiduciary 
duty to investors or prospective investors in a pooled investment 
vehicle not otherwise imposed by law. Nor does the rule alter any duty 
or obligation an adviser has under the Advisers Act, any other federal 
law or regulation, or any state law or regulation (including state 
securities laws) to investors in a pooled investment vehicle it 
advises.\41\ The rule, for example, will permit us to bring an 
enforcement action against an investment adviser that violates a 
fiduciary duty imposed by other law if the violation of such law or 
obligation also constitutes an act, practice, or course of business 
that is fraudulent, deceptive, or manipulative within the meaning of 
the rule and section 206(4).\42\
---------------------------------------------------------------------------

    \41\ For example, under the Uniform Limited Partnership Act, 
advisers who serve as general partners owe fiduciary duties to the 
limited partners. Unif. Limited Partnership Act section 408 (2001).
    \42\ For example, if an adviser has a duty from a source other 
than the rule to make a material disclosure to an investor in a fund 
and negligently or deliberately fails to make the disclosure, the 
rule would apply to the failure.
---------------------------------------------------------------------------

    Finally, the rule does not create a private right of action.\43\
---------------------------------------------------------------------------

    \43\ The Supreme Court has held that ``there exists a limited 
private remedy under the Investment Advisers Act of 1940 to void an 
investment adviser's contract, but that the Act confers no other 
private causes of action, legal or equitable.'' Transamerica 
Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11 at 24 (1979) (footnote 
omitted).
---------------------------------------------------------------------------

III. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 does not apply because rule 
206(4)-8 does not impose a new ``collection of information'' within the 
meaning of the Paperwork Reduction Act of 1995. The rule does not 
create any filing, reporting, recordkeeping, or disclosure requirements 
for investment advisers subject to the rule. Accordingly, there is no 
``collection of information'' under the Paperwork Reduction Act that 
requires the approval of the Office of Management and Budget under 44 
U.S.C. 3501.

 IV. Cost-Benefit Analysis

    The Commission is sensitive to costs imposed by our rules and the 
benefits that derive from them. In the Proposing Release, we encouraged 
commenters to discuss any potential costs and benefits that we did not 
consider in our discussion. Three commenters addressed the issue of 
cost. Two of them stated their belief that the rule would increase 
advisers' costs of compliance, by, for example, making it necessary for 
advisers to conduct extensive reviews of all communications with 
clients.\44\ One stated that the rule would achieve a reasonable 
balance of providing important benefits to investors at an acceptable 
cost.\45\ None of the three commenters, however, provided analysis or 
empirical data in connection with their statements.
---------------------------------------------------------------------------

    \44\ NYCB Letter, supra note 9; Seward & Kissel Letter, supra 
note 29.
    \45\ CFA Center Letter, supra note 8.
---------------------------------------------------------------------------

    The rule makes it a fraudulent, deceptive, or manipulative act, 
practice, or course of business within the meaning of section 206(4) 
for any investment adviser to a pooled investment vehicle to make any 
untrue statement of a material fact or to omit to state a material fact 
necessary in order to make the statements made, in light of the 
circumstances under which they were made, not misleading, to any 
investor or prospective investor in the pooled investment vehicle. The 
rule also makes it a fraudulent, deceptive, or manipulative act, 
practice, or course of business within the meaning of section 206(4) 
for any investment adviser to a pooled investment vehicle to otherwise 
engage in any act, practice, or course of business that is fraudulent, 
deceptive, or manipulative with respect to any investor or prospective 
investor in the pooled investment vehicle. For the reasons discussed, 
we do not believe that the rule will require advisers to incur new or 
additional costs.
    Investment advisers to pooled investment vehicles should not be 
making untrue statements or omitting material facts or otherwise be 
engaged in fraud with respect to investors or prospective investors in 
pooled investment vehicles today, because federal authorities, state 
authorities, and private litigants often can, and do, seek redress from 
the adviser for the untrue statements or omissions or other frauds. In 
most cases, the conduct that the rule prohibits is already prohibited 
by federal securities statutes,\46\ other federal statutes (including 
federal wire fraud statutes),\47\ as well as state law.\48\
---------------------------------------------------------------------------

    \46\ See, e.g., section 10(b) of the Exchange Act [15 U.S.C. 
78j(b)] and section 17(a) of the Securities Act [15 U.S.C. 77q] 
which would apply when the false statements are made ``in connection 
with the purchase or sale of a security'' or involve the ``offer or 
sale'' of a security, and section 34(b) of the Investment Company 
Act which makes it unlawful ``to make any untrue statement of a 
material fact in any registration statement, application, report, 
account, record, or other document filed or transmitted pursuant to 
[the Investment Company Act] * * *.''
    \47\ See, e.g., 18 U.S.C. 1341 (Frauds and Swindles) and 18 
U.S.C. 1343 (Fraud by wire, radio, or television) which make it a 
criminal offense to use the mails or to communicate by means of 
wire, having devised a scheme to defraud or for obtaining money or 
property by means of false or fraudulent pretenses, and 18 U.S.C. 
1957 (Engaging in monetary transactions in property derived from 
specified unlawful activity) which makes it a criminal racketeering 
offense to engage or attempt to engage in a transaction in 
criminally derived property of a value greater than $10,000.
    \48\ See, e.g., Metro Communications Corp. BVI v. Advanced 
Mobilecomm Technologies, 854 A.2d 121, 156 (Del. Ch. 2004) (court 
held that plaintiff-former member of LLC had sufficiently alleged a 
common law fraud claim based on the allegation that a series of 
reports by LLC's managers contained misleading statements; court 
stated that ``[i]n the usual fraud case, the speaking party who is 
subject to an accusation of fraud is on the opposite side of a 
commercial transaction from the plaintiff, who alleges that but for 
the material misstatements or omissions of the speaking party he 
would not have contracted with the speaking party'').
---------------------------------------------------------------------------

    We recognize that there are costs involved in assuring that 
communications to investors and prospective investors do not contain 
untrue or misleading statements and preventing other frauds. Advisers 
have incurred, and will continue to incur, these costs due to the 
prohibitions and deterrent effect of the law and rules that apply under 
these circumstances. While each of the provisions noted above may have 
different limitation periods, apply in different factual circumstances, 
or require the government (or a private litigant) to prove different 
states of mind than the rule, as discussed above we believe that the 
multiple prohibitions against fraud, and the consequences under both 
criminal and civil law for fraud, should currently cause an adviser to 
take the precautions it deems necessary to refrain from such conduct.
    Furthermore, prior to Goldstein, advisers operated with the 
understanding that the Advisers Act prohibited the same conduct that 
would be prohibited by the rule. Accordingly, we do not believe that 
advisers to pooled investment vehicles attentive to their traditional 
compliance responsibilities will need to take steps or alter their 
business practices in such a way that will require them to incur new or 
additional costs as a result of the adoption of the rule.
    We also recognize that the rule may cause some advisers to pay more 
attention to the information they present to better guard against 
making an untrue or misleading statement to an investor or prospective 
investor and to reevaluate measures that are intended to prevent fraud. 
As a consequence, some advisers might seek guidance, legal or 
otherwise, and more closely review the

[[Page 44761]]

information that they disseminate to investors and prospective 
investors and the antifraud related policies and procedures they have 
implemented. While increased concern about making false statements or 
committing fraud could be attributable to the new rule, advisers should 
already be incurring these costs to ensure truthfulness and prevent 
fraud, regardless of the rule, because of the myriad of laws or 
regulations that may already apply.
    The principal benefit of the rule is that it clearly enables the 
Commission to bring enforcement actions under the Advisers Act, if an 
adviser to a pooled investment vehicle disseminates false or misleading 
information to investors or prospective investors or otherwise commits 
fraud with respect to any investor or prospective investor. As noted 
above, the existing antifraud provisions may not be available to us in 
all cases. Through our enforcement actions we are able to protect fund 
investor assets by stopping ongoing frauds,\49\ barring persons that 
have committed certain specified violations or offenses from being 
associated with an investment adviser,\50\ imposing penalties,\51\ 
seeking court orders to protect fund assets,\52 \and to order 
disgorgement of ill-gotten gains.\53\ Moreover, we believe that rule 
206(4)-8 will deter advisers to pooled investment vehicles from 
engaging in fraudulent conduct with respect to investors in those pools 
and will provide investors with greater confidence when investing in 
pooled investment vehicles.
---------------------------------------------------------------------------

    \49\ See section 203(k) of the Advisers Act (Commission 
authority to issue cease and desist orders).
    \50\ See section 203(f) of the Advisers Act (Commission 
authority to bar a person from being associated with an investment 
adviser).
    \51\ See section 203(i) of the Advisers Act (Commission 
authority to impose civil penalties).
    \52\ See section 209(d) of the Advisers Act (Commission 
authority to seek injunctions and restraining orders in federal 
court).
    \53\ See section 203(j) of the Advisers Act (Commission 
authority to order disgorgement).
---------------------------------------------------------------------------

V. Regulatory Flexibility Act Analysis

    The Commission certified, pursuant to section 605(b) of the 
Regulatory Flexibility Act, that rule 206(4)-8 will not have a 
significant economic impact on a substantial number of small 
entities.\54\ This certification was included in the Proposing 
Release.\55\ While we encouraged written comment regarding this 
certification, none of the commenters responded to this request.
---------------------------------------------------------------------------

    \54 \ 5 U.S.C. 605(b).
    \55\ Section VII.A of the Proposing Release, supra note 2.
---------------------------------------------------------------------------

VI. Statutory Authority

    We are adopting new rule 206(4)-8 pursuant to our authority set 
forth in sections 206(4) and 211(a) of the Advisers Act (15 U.S.C. 80b-
6(4) and 80b-11(a)).

List of Subjects in 17 CFR Part 275

    Reporting and recordkeeping requirements, Securities.

VII. Text of Rules

0
For the reasons set out in the preamble, Title 17, Chapter II of the 
Code of Federal Regulations is amended as follows:

PART 275--RULES AND REGULATIONS, INVESTMENT ADVISERS ACT OF 1940

0
1. The authority citation for Part 275 continues to read in part as 
follows:

    Authority: 15 U.S.C. 80b-2(a)(11)(F), 80b-2(a)(17), 80b-3, 80b-
4, 80b-4a, 80b-6(4), 80b-6a, and 80b-11, unless otherwise noted.
* * * * *

0
2. Section 275.206(4)-8 is added to read as follows:


Sec.  206(4)-8  Pooled investment vehicles.

    (a) Prohibition. It shall constitute a fraudulent, deceptive, or 
manipulative act, practice, or course of business within the meaning of 
section 206(4) of the Act (15 U.S.C. 80b-6(4)) for any investment 
adviser to a pooled investment vehicle to:
    (1) Make any untrue statement of a material fact or to omit to 
state a material fact necessary to make the statements made, in the 
light of the circumstances under which they were made, not misleading, 
to any investor or prospective investor in the pooled investment 
vehicle; or
    (2) Otherwise engage in any act, practice, or course of business 
that is fraudulent, deceptive, or manipulative with respect to any 
investor or prospective investor in the pooled investment vehicle.
    (b) Definition. For purposes of this section ``pooled investment 
vehicle'' means any investment company as defined in section 3(a) of 
the Investment Company Act of 1940 (15 U.S.C. 80a-3(a)) or any company 
that would be an investment company under section 3(a) of that Act but 
for the exclusion provided from that definition by either section 
3(c)(1) or section 3(c)(7) of that Act (15 U.S.C. 80a-3(c)(1) or (7)).

    Dated: August 3, 2007.

    By the Commission.
Nancy M. Morris,
Secretary.

Concurrence of Commissioner Paul S. Atkins to the Prohibition of Fraud 
by Advisers to Certain Pooled Investment Vehicles

    New Rule 206(4)-8 under the Investment Advisers Act of 1940 
(``Advisers Act''),\56\ which we adopt today, prohibits advisors from 
(i) making false or misleading statements to investors or prospective 
investors in hedge funds and other pooled investment vehicles they 
advise, or (ii) otherwise defrauding these investors.\57\ Although the 
SEC has other ways to reach fraud by advisors, this new rule will fill 
in gaps in the coverage of other transaction-based, anti-fraud 
provisions so that the SEC may pursue advisors of pooled investment 
vehicles who have defrauded investors and prospective investors in the 
course of their acting as fund advisors. I support the new rule, but I 
am writing separately to express my disagreement with the conclusions 
in the Adopting Release \58\ related to the requisite mental state for 
violation of the rule.\59\
---------------------------------------------------------------------------

    \56\ 15 U.S.C. 80b.
    \57\ 17 CFR 275.206(4)-8. Paragraph (a) of the new rule 
provides:
    Prohibition. It shall constitute a fraudulent, deceptive, or 
manipulative act, practice or course of business within the meaning 
of section 206(4) of the Act (15 U.S.C. 80b-6(4)) for any investment 
adviser to a pooled investment vehicle to:
    (1) Make any untrue statement of a material fact or to omit to 
state a material fact necessary to make the statements made, in the 
light of the circumstances under which they were made, not 
misleading, to any investor or prospective investor in the pooled 
investment vehicle; or
    (2) Otherwise engage in any act, practice, or course of business 
that is fraudulent, deceptive, or manipulative with respect to any 
investor or prospective investor in the pooled investment vehicle.
    Paragraph (b) of the rule defines a ``pooled investment 
vehicle'' to include any investment company and any company that 
relies on an exclusion from the definition of ``investment company'' 
in Section (3)(c)(1) or (3)(c)(7) of the Investment Company Act [15 
U.S.C. 80a-3(c)(1) or (7))].
    \58\ Prohibition of Fraud by Advisers to Certain Pooled 
Investment Vehicles, Advisers Act Release No. 2628 (Aug. 3, 2007) 
(``Adopting Release'').
    \59\ See Section II.D of the Adopting Release. I agree with the 
Section's conclusions with respect to fiduciary duty (Rule 206(4)-8 
does not create a fiduciary duty) and private rights of action (Rule 
206(4)-8 does not create any private rights of action).
---------------------------------------------------------------------------

    In discussing the mental state required for violation of the rule, 
the Adopting Release states that ``the Commission would not need to 
demonstrate that an adviser violating rule 206(4)-8 acted with 
scienter.'' \60\

[[Page 44762]]

According to the Adopting Release, therefore, the rule covers negligent 
conduct as well as intentional conduct. My objections to this 
interpretation of the rule's scope are twofold. First, I do not believe 
that a negligence standard is consistent with the Commission's 
authority under Section 206(4). Second, even if a negligence standard 
were within our authority, for policy reasons, we should require a 
finding of scienter \61\ as part of establishing a violation under this 
anti-fraud rule.
---------------------------------------------------------------------------

    \60\ Adopting Release, at text accompanying note 36.
    \61\ ``Scienter'' is ``a mental state embracing intent to 
deceive, manipulate, or defraud.'' Ernst & Ernst v. Hochfelder, 425 
U.S. 185, 194 (1976). Recklessness has also been found to satisfy a 
scienter standard.
---------------------------------------------------------------------------

    The Adopting Release offers several arguments in support of a 
negligence standard. First, it argues that the language of section 
206(4) is not limited to knowing or deliberate conduct. In support of 
this argument, it cites the decision by the United States Court of 
Appeals for the District of Columbia Circuit in SEC v. Steadman.\62\ 
Second, the Adopting Release contends that use of a negligence standard 
is an appropriate method reasonably designed to prevent fraud. In 
support of this contention, it cites U.S. v. O'Hagan.\63\ I will 
discuss each of these in turn.
---------------------------------------------------------------------------

    \62\ SEC v. Steadman, 967 F.2d 636 (D.C. Cir. 1992).
    \63\ U.S. v. O'Hagan, 521 U.S. 642, 672-73 (1997).
---------------------------------------------------------------------------

    The language of Section 206(4) does not reach negligent conduct. 
Section 206(4) makes it unlawful for an advisor ``to engage in any act, 
practice, or course of business which is fraudulent, deceptive, or 
manipulative'' and directs the Commission ``by rules and regulations 
[to] define, and prescribe means reasonably designed to prevent, such 
acts, practices, and courses of business as are fraudulent, deceptive, 
or manipulative.''
    The Adopting Release maintains that, because Section 206(4) 
``encompasses `acts, practices, and courses of business as are * * * 
deceptive,' '' it reaches ``conduct that is negligently deceptive as 
well as conduct that is recklessly or deliberately deceptive.'' \64\ As 
the Supreme Court has said, however, ``it is a `familiar principle of 
statutory construction that words grouped in a list should be given 
related meaning.' '' \65\ Hence, it is inappropriate to base a 
conclusion that negligent conduct is reached by looking at the term 
``deceptive'' apart from its companion terms.
---------------------------------------------------------------------------

    \64\ Adopting Release at Section II.D.
    \65\ Schreiber v. Burlington Northern, Inc. 472 U.S. 1, 8 (1985) 
(quoting Securities Industry Assn. v. Board of Governors, FRS, 468 
U.S. 207, 218 (1984).
---------------------------------------------------------------------------

    In the Section 10(b) context, the Supreme Court has accorded 
special significance to the term ``manipulative'':

    Use of the word ``manipulative'' is especially significant. It 
is and was virtually a term of art when used in connection with 
securities markets. It connotes intentional or willful conduct 
designed to deceive or defraud investors by controlling or 
artificially affecting the price of securities.\66\
---------------------------------------------------------------------------

    \66\ Hochfelder, 425 U.S. at 199 (footnote to dictionary 
definition omitted). Hochfelder considered whether scienter was a 
necessary component of a private action under Section 10(b). In a 
subsequent case, the Court considered whether scienter was a 
necessary element of an injunctive action by the SEC and concluded 
that it was. Aaron v. SEC, 446 U.S. 680, 691 (1980) (``the rationale 
of Hochfelder ineluctably leads to the conclusion that scienter is 
an element of a violation of section 10(b) and Rule 10b-5, 
regardless of the identity of the plaintiff or the nature of the 
relief sought.'').

    The language of Section 206(4), like the language of Section 10(b), 
would seem then to suggest a scienter requirement.
    The Adopting Release, however, cites for the contrary conclusion a 
decision by the United States Court of Appeals for the District of 
Columbia. Indeed, it is true that in SEC v. Steadman, the court held 
that ``scienter is not required under section 206(4).'' \67\ The court 
reached its conclusion by comparing the language of Section 206(4) to 
the language of Section 17(a)(3) under the Securities Act of 1933,\68\ 
which makes it unlawful ``to engage in any transaction, practice, or 
course of business which operates or would operate as a fraud or deceit 
upon the purchaser.'' \69\ The Steadman court drew a comparison between 
Section 17(a)(3)'s ``transaction, practice, or course of business'' and 
Section 206(4)'s ``act, practice, or course of business.'' The court, 
relying on the Supreme Court's decision in Aaron, held that, in both 
cases, the focus was on effect. \70\ The Supreme Court in Aaron, 
however, placed considerable weight on the terms ``operate'' or ``would 
operate,'' neither of which appears in Section 206(4).\71\ In fact, 
Section 206(4) instead uses the affirmative word ``is,'' which would 
seem to de-emphasize effect.\72\ Further, while Section 17(a)(3) speaks 
of only ``fraud'' and ``deceit,'' Section 206(4) also includes 
``manipulative.''
---------------------------------------------------------------------------

    \67\ Steadman, 967 F.2d at 647.
    \68\ 15 U.S.C. 77a et seq.
    \69\ 15 U.S.C. 77q(a)(3).
    \70\ Steadman at 647.
    \71\ Aaron, 446 U.S. at 696-97 (``the language of section 
17(a)(3), under which it is unlawful for any person to `engage in 
any transaction, practice, or course of business which operates or 
would operate as a fraud or deceit,' quite plainly focuses upon the 
effect of particular conduct * * * rather than upon the culpability 
of the person responsible.'') (emphasis in original).
    \72\ Section 206(4) makes it unlawful ``to engage in any act, 
practice, or course of business which is fraudulent, deceptive, or 
manipulative.'' (Emphasis added.)
---------------------------------------------------------------------------

    It is also helpful to note that Section 206(4), which was adopted 
in 1960,\73\ was modeled on Section 15(c)(2) under the Securities 
Exchange Act of 1934.\74\ Section 15(c)(2) makes it unlawful for 
brokers and dealers to effect transactions in or induce the purchase or 
sale of securities in connection with which they ``engage[] in any 
fraudulent, deceptive, or manipulative act or practices, or make[] any 
fictitious quotation.'' \75\ Hence, as the legislative history of 
Section 206(4) noted, Section 206(4) ``is comparable to section 
15(c)(2).'' \76\ The Steadman opinion did not address the link between 
Sections 206(4) and 15(c)(2).
---------------------------------------------------------------------------

    \73\ S. Rep. No. 86-1760, at 4 (1960) (``The proposal has 
precedent in similar authority granted to the SEC over brokers and 
dealers by the Securities Exchange Act of 1934.'').
    \74\ 15 U.S.C. 78a et seq.
    \75\ 15 U.S.C. 78o(c)(2).
    \76\ H.R. Rep. No. 86-2179, at 8 (1960). See also S. Rep. No. 
86-1760, at 8 (1960) (``almost the identical wording of section 
15(c)(2)'').
---------------------------------------------------------------------------

    Section 14(e) under the Exchange Act, which relates to tender 
offers, also follows the Section 15(c)(2) pattern.\77\ Section 14(e), 
like Section 206(4), includes both a proscription against ``engag[ing] 
in any fraudulent, deceptive, or manipulative acts or practices'' and a 
directive that the SEC ``by rules and regulations define, and prescribe 
means reasonably designed to prevent such acts and practices as are 
fraudulent, deceptive, or manipulative.'' Because of the similarities, 
it is useful to look at the Supreme Court's interpretation of Section 
14(e). In Schreiber v. Burlington Northern, the Supreme Court relied on 
Hochfelder's interpretation of the term ``manipulative'' in the Section 
10(b) context to interpret that term in the Section 14(e) context.\78\ 
The Schreiber Court noted that the addition of the rulemaking 
authorization to Section 14(e) did not ``suggest[] any change in the 
meaning of `manipulative' itself.'' \79\ In U.S. v. O'Hagan, The 
Supreme Court again looked at Section 14(e). This time, it considered 
whether Rule 14e-3(a), which prohibits trading on undisclosed 
information in connection with a tender offer, exceeds the SEC's 
authority under Section 14(e) given that the prohibition applies 
regardless of whether there is a duty to disclose. The Court held that

[[Page 44763]]

Rule 14e-3(a) was within the SEC's authority under Section 14(e) 
because Section 14(e) allows the SEC to ``prohibit acts, not themselves 
fraudulent under the common law or Sec.  10(b), if the prohibition is 
`reasonably designed to prevent * * * acts and practices [that] are 
fraudulent.' '' \80\ The lesson from both of these cases is that the 
SEC cannot effect a change in the meaning of specific statutory terms 
under its comparable Section 206(4) rulemaking authority.
---------------------------------------------------------------------------

    \77\ 15 U.S.C. 78n(e).
    \78\ Schreiber, 472 U.S. at 12 (``We hold that the term, 
`manipulative' as used in Sec.  14(e) requires misrepresentation or 
nondisclosure. It connotes `conduct designed to deceive or defraud 
investors by controlling or artificially affecting the price of 
securities.'') (citing Hochfelder, 425 U.S. at 199).
    \79\ Id. at 12 n.11.
    \80\ O'Hagan, 521 U.S. at 672-73.
---------------------------------------------------------------------------

    The Adopting Release asserts that, under O'Hagan, a negligence 
standard is a means reasonably designed to prevent fraud. As the 
Adopting Release notes, conduct outside of the bounds of the statutory 
prohibition can be prohibited by Commission rule under Section 206(4). 
The rule that we are adopting here, however, differs markedly from the 
rules at issue in O'Hagan and Steadman.\81\ Both of those rules were 
narrowly targeted rules that covered clearly-defined behavior. They 
were designed to prohibit conduct, that, although outside of the ``core 
activity prohibited'' by the statute, were designed to ``assure the 
efficacy'' of the statute.\82\
---------------------------------------------------------------------------

    \81\ O'Hagan dealt with Rule 14e-3(a), which governed trading on 
non-public, material information in connection with a tender offer. 
Steadman dealt with Rule 206(4)-2, the investment advisor custody 
rule.
    \82\ O'Hagan, 521 U.S. at 673-74.
---------------------------------------------------------------------------

    Rule 206(4)-8(a)(2), by contrast, is as broad as the statute 
itself. It essentially repeats the statutory prohibition. It does not 
logically follow, therefore, that lowering the standard of care would 
be the type of ``means reasonably designed to prevent'' within the 
contemplation of the regulatory mandate within Section 206(4). Lowering 
the standard of care is instead an attempt to rewrite the statute by 
assigning new definitions to the words of the statute. A potential 
unfortunate consequence of the Adopting Release's change in mental 
state is that it is now arguably contrary to statute and therefore 
might interfere with the SEC's ability to use the rule effectively.\83\ 
Congress included a rulemaking directive in order to give the SEC the 
necessary authority to provide clarity in this area about the types of 
practices covered by the statute's broad prohibition,\84\ not to alter 
the standard of care that Congress selected through the language it 
used.\85\ Imposing a negligence standard is particularly improper given 
that, as the Adopting Release notes, ``Rule 206(4)-8 does not create 
under the Advisers Act a fiduciary duty to investors and prospective 
investors in a pooled investment vehicle.'' \86\
---------------------------------------------------------------------------

    \83\ See Chevron U.S.A. Inc. v. Natural Resources Defense 
Council, Inc., 467 U.S. 837, 844 (1984). The Adopting Release 
states: ``Since the Commission is clearly authorized to prescribe 
[sic] conduct that goes beyond fraud as a means reasonably designed 
to prevent fraud, prohibiting deceptive conduct done negligently is 
a way to accomplish this objective.'' Adopting Release at Section 
II.D. This does not answer the question, however, of whether 
``fraudulent, deceptive, or manipulative'' conduct can arise from 
negligent acts.
    \84\ Up until now under Section 206(4), we have done exactly 
this. We have adopted rules covering advertisements [17 CFR 
275.206(4)-1], custody of client funds and securities [17 CFR 
275.206(4)-2], cash payments for client solicitations [17 CFR 
275.206(4)-3], disclosure of financial and disciplinary information 
[17 CFR 275.206(4)-4], proxy voting [17 CFR 275.206(4)-6], and 
compliance procedures [17 CFR 275.206(4)-7].
    \85\ See H.R. Rep. No. 2179 at 7 (1960) (identifying as the 
``problem'' that Section 206(4) was intended to remedy: ``there has 
always been a question as to the scope of the fraudulent and 
deceptive activities which are prohibited and the extent to which 
the Commission is limited in this area by common law concepts of 
fraud and deceit.'').
    \86\ Adopting Release at Section II.D.
---------------------------------------------------------------------------

    Finally, from a purely practical perspective, I dispute the 
regulatory approach underlying the contention that ``by taking 
sufficient care to avoid negligent conduct, advisers will be more 
likely to avoid reckless deception.'' \87\ By an extension of that same 
logic, a strict liability standard would evoke even more care by 
advisors. Even if the SEC is authorized to pick the standard of care 
that applies broadly to all ``fraudulent, deceptive, or manipulative'' 
acts and practices, arbitrarily selecting a higher standard of care 
``just to be on the safe side'' has the potential of misdirecting 
enforcement and inspection resources and chilling well-intentioned 
advisors from serving their investors.
---------------------------------------------------------------------------

    \87\ Adopting Release at Section II.D.

[FR Doc. E7-15531 Filed 8-8-07; 8:45 am]

BILLING CODE 8010-01-P
