July 6, 2016
On June 28, 2016, the SEC formally proposed a new rule ("Rule 206(4)-4") under the Investment Advisers Act of 1940, as amended (the "Advisers Act"), that would require registered investment advisers ("RIAs") to adopt and implement written business continuity and transition plans and to review no less frequently than annually the adequacy and effectiveness of such plans. The proposed rule is subject to a 60-day comment period, which will expire on September 6, 2016.
As proposed, Rule 206(4)-4 would require RIAs to adopt written business continuity and transition plans "reasonably designed to address operational and other risks related to a significant disruption in the investment adviser’s operations." Such plans would be required to address at least the following two elements of disruption risk:
Each of these requirements is elaborated on below.
Proposed Rule 206(4)-4 would require the business continuity plans adopted by an RIA to include written policies and procedures addressing at least the following elements in the event of a significant business disruption:
In general, these requirements are not new. Since the adoption of the Compliance Program Rule (Rule 206(4)-7) in 2003, RIAs have in practice been required to adopt written business continuity and disaster recovery plans pursuant to SEC Staff interpretive guidance. Although proposed Rule 206(4)-4 would impose more specificity as to the required elements of a business continuity and disaster recovery plan than has previously been the case, most RIAs should already have plans in place that comply in most material respects with the required elements of the proposed new Rule.
Proposed Rule 206(4)-4 would also require RIAs to adopt a written plan of transition "that accounts for the possible winding down of the RIA’s business or the transition of the RIA’s business to others in the event the RIA is unable to continue providing investment advisory services." Such a plan would be required to include policies and procedures addressing at least the following:
These business succession requirements are new, and most RIAs would need to develop compliance policies and procedures to address them.
Proposed Rule 206(4)-4 grows out of a regulatory trend that focuses on operational risk in the financial services industry as a potential source of systemic risk to the U.S. financial system as a whole, particularly in light of the industry’s heavy dependence on technology. As the SEC notes in the Proposing Release for Rule 206(4)-4, many financial regulators already have rules in place requiring the financial firms under their oversight to adopt written business continuity and transition plans. In addition, in 2014, the Financial Stability Oversight Council ("FSOC"), a body created under Dodd-Frank to monitor for and coordinate the Federal regulatory responses to potential systemic risks to the U.S. financial system, issued a request for public comment on the financial products and activities of the asset management industry, including operational risks and transition planning. The SEC’s focus on cybersecurity as one of its top examination priorities over the past several years can also be seen as part of this trend.
Clients should reach out to their Gibson Dunn contacts if they have any questions regarding proposed Rule 206(4)-4 or any other regulatory matters.
 A copy of the SEC’s Proposing Release for Rule 206(4)-4 may be found on the SEC’s website at https://www.sec.gov/rules/proposed/2016/ia-4439.pdf.
 In its Proposing Release, the SEC states that the purpose of this requirement is to identify key decision-makers within an RIA’s organization and to address whether and how any inter-relationships between an RIA and its affiliates might affect the transition process. The Release goes on to state that an RIA’s transition plan should include an organization chart and other information about the RIA’s ownership and management structure, including the identity and contact information for key personnel, and the identity of any affiliates whose dissolution or distress could lead to a change in or material impact on the RIA’s operations.
Gibson, Dunn & Crutcher’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact any member of the Gibson Dunn team, the Gibson Dunn lawyer with whom you usually work, or any of the following leaders and members of the firm’s Investment Funds practice group:
Jennifer Bellah Maguire – Los Angeles (+1 213-229-7986, firstname.lastname@example.org)
Edward D. Sopher – New York (+1 212-351-3918, email@example.com)
Y. Shukie Grossman – New York (+1 212-351-2369, firstname.lastname@example.org)
Edward D. Nelson – New York (+1 212-351-2666, email@example.com)
C. William Thomas, Jr. – Washington, D.C. (+1 202-887-3735, firstname.lastname@example.org)
Gregory Merz – Washington, D.C. (+1 202-887-3637, email@example.com)
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