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April 14, 2021

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SEC Division of Examinations Risk Alert Provides a Useful Roadmap on Compliance Issues for Fund Managers

On Friday, April 9, 2021, the Securities and Exchange Commission (SEC) Division of Examinations (the Division), issued a Risk Alert detailing its observations of deficiencies and internal control weaknesses from examinations of investment advisers and funds regarding investing that incorporates environmental, social, and governance factors (ESG investing).[1] This alert follows another recent announcement of the creation of a Climate and ESG Task Force within the Division of Enforcement to focus on ESG-related disclosures by public companies and ESG investment practices by investment funds.[2]

Key Takeaways

The Risk Alert provides useful guidance regarding the types of compliance issues the Staff is reviewing in its examinations of investment advisers, examples of deficiencies the Staff is finding, as well as instances in which the Staff has observed effective compliance practices. Accordingly, the Risk Alert provides a useful roadmap to assist investment advisers in developing, testing and enhancing their compliance policies, procedures and practices.

On the heels of the Risk Alert, Commissioner Peirce issued a cautionary statement to express her view that the alert, should not be interpreted as a sign that ESG investment strategies are unique in the eyes of examiners, but simply that, as with any other investment strategy, [f]irms claiming to be conducting ESG investing need to explain to investors what they mean by ESG and they need to do what they say they are doing.[3]

In sum, the SECs focus on ESG investment strategies heightens the need for investment advisers to make sure their disclosures align with investment practices and that there is sufficient and knowledgeable oversight and review by compliance personnel to avoid a divergence between the two over time.

Concerns Identified by the Division

In the Divisions examination of investment advisers, registered investment companies, and private funds engaged in ESG investing, the Staff observed the following weaknesses:

Guidance for ESG Investing Disclosures and Procedures

The Staff also observed policies, procedures, and practices which were reasonably designed to convey approaches to ESG investing. The Division noted that the following practices may be helpful to address the compliance issues identified above:

Conclusion

In conclusion, the SECs Risk Alert reaffirms the need for firms involved in ESG investing to ensure that their disclosures accurately describe their ESG-related investment practices. Periodic reviews of marketing materials and other investor disclosures against current investment strategy and adherence to stated ESG metrics will avoid the types of deficiencies the Staff has observed in recent inspections, and, in the worst cases, avoid even greater scrutiny from the Division of Enforcement.

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[1] Division of Examinations, Risk Alert, Securities and Exchange Commission (Apr.9, 2021), https://www.sec.gov/files/esg-risk-alert.pdf.

[2] Press Release, U.S. Securities and Exchange Commission, SEC Announces Enforcement Task Force Focused on Climate and ESG Issues (Mar. 4, 2021), https://www.sec.gov/news/press-release/2021-42?_sm_au_=iHVN4cW7DnktSD5NFcVTvKQkcK8MG.

[3] Public Statement, Statement on the Staff ESG Risk Alert (Apr. 12, 2021), https://www.sec.gov/news/public-statement/peirce-statement-staff-esg-risk-alert.

Gibson, Dunn and Crutchers lawyers are available to assist in addressing any questions you may haveregarding these developments.Please contact the Gibson Dunn lawyer with whom you usually work, any member of the firms Securities Enforcement practice group, or the following authors:

Mark K. Schonfeld New York (+1 212-351-2433,mschonfeld@gibsondunn.com)Tina Samanta New York (+1 212-351-2469,tsamanta@gibsondunn.com)Lauren Myers New York (+1 212-351-3946, lmyers@gibsondunn.com)

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