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Alert: SEC Increases Qualified Client Threshold

On June 14, 2016, the Securities and Exchange Commission (“SEC”) issued an order (“Order”) increasing the dollar amount of the net worth threshold in Rule 205-3 under the Investment Advisers Act of 1940 from $2,000,000 to $2,100,000. Rule 205-3 provides an exemption from the prohibition on performance-based compensation where the client entering into the advisory contract is a “qualified client’ as defined in the rule. Effective August 15, 2016, revised Rule 205-3 will define a “qualified client” as a person that:

• has at least $1,000,000 under the management of the investment adviser immediately after entering into the contract; or
• the investment adviser reasonably believes, immediately prior to entering into the contract, either (i) has a net worth (together, in the case of a natural person, with assets held jointly with a spouse) of more than $2,100,000 or (ii) is a qualified purchaser as defined in section 2(a)(51)(A) of the Investment Company Act of 1940.

Advisers should be relieved to know that the increase in the net worth threshold is not retroactive (i.e. an advisory agreement or subscription agreement for a private investment fund entered into prior to the August 15, 2016 effective date should not be affected by the modification to the qualified client threshold). However, advisory agreements or subscription agreements entered on or after the effective date will be subject to the new threshold.

As a result, SEC registered investment advisers and certain state registered and exempt advisers subject to the qualified client requirement will need to consult with counsel and update their advisory agreements and fund offering documents prior to the effective date. Please do not hesitate to contact us should you have any questions or need assistance making the required updates.

A copy of the Order is available at: https://www.sec.gov/rules/other/2016/ia-4421.pdf.