NAPFM, MFA, and AIMA File Lawsuit Against SEC to Vacate Dealer Rule
The National Association of Private Fund Managers (NAPFM), MFA, and the Alternative Investment Management Association (AIMA) today filed a lawsuit asking the U.S. District Court for the Northern District of Texas in Fort Worth to vacate a rule recently adopted by the Securities and Exchange Commission (SEC) that dramatically expands the definitions of "dealer" and "government securities dealer" (the "Dealer Rule").
Bryan Corbett, President & CEO of MFA, said: "We were left with no choice but to challenge the Dealer Rule, because it will harm markets and create tremendous uncertainty for investors. The Dealer Rule is indeterminate and leaves certain market participants uncertain of their need to comply with the dealer regulatory framework. Alternative asset managers are not dealers. They are customers of dealers. If the rule is permitted to stand, it could mean that managers in scope and the funds they manage would lose their customer protections with their dealer counterparties and could not participate in IPOs. This would harm funds, their investors, and issuers looking to raise capital."
Jack Inglis, AIMA CEO, said: "The SEC has exceeded its statutory authority by incorrectly concluding that customers of dealers may be dealers themselves ? a clear departure from the statutory definition and understanding of what has meant to be a securities ?dealer' for the past 90 years. This rule will force certain hedge funds ? who are not dealers and have never been considered dealers ? to either register as dealers, thereby subjecting them to an unworkable regulatory framework, or force them to significantly curtail or cease altogether their trading activity. Both results will lead to unnecessary and significant harm to markets, investors, and certain funds. We do not take the decision lightly to challenge the Dealer Rule, but if left unchallenged, it threatens the future of certain funds and strategies."
NAPFM said: "The SEC's redefinition of ?dealer' upsets a century's worth of understanding about the meaning of that term under the Exchange Act. As with respect to the Private Fund Adviser Rule that NAPFM recently challenged, the agency here tries to extend its reach over private funds in ways Congress never imagined. The Dealer Rule - purportedly designed to increase liquidity in trading markets - could ultimately have the effect of decreasing such liquidity."
The complaint asserts that the rule upends the well-understood meaning of what constitutes dealer activity under the Securities Exchange Act of 1934 and nearly a century of market practice. The Dealer Rule is indeterminate and overbroad and can be read to capture a wide variety of non-dealing activity, thereby subjecting private funds to dealer registration in what can only be described as an end-run around legislative intent. Moreover, the Dealer Rule is expressly non-exclusive, with no presumption of compliance even if a market participant falls outside the new definition, affording market participants no meaningful way to understand with certainty who counts as a dealer.
By failing to definitively and accurately define what a dealer is ? even though doing so was the stated purpose of the rulemaking ? the Dealer Rule may deter regulated market participants (such as registered investment advisers) from engaging in investment activity in various asset classes, including U.S. treasuries. This outcome will unnecessarily harm markets, funds, and investors by decreasing liquidity and market efficiency, while increasing volatility and costs.
The petitioners argue the Dealer Rule must be vacated and set aside in its entirety because:
- The SEC lacks the statutory authority to adopt the definition in the Dealer Rule because the rule captures firms that are not, and have never been considered, dealers and lacks any limiting principle.
- The SEC engaged in arbitrary and capricious decision making, including by failing to adequately address the economic consequences of the Dealer Rule.
- The Dealer Rule is otherwise contrary to law because it imposes a burden on competition not necessary or appropriate in furtherance of the purposes of the Securities Exchange Act.
The complaint can be found here.
The petitioners are represented by Gene Scalia and Helgi Walker of Gibson, Dunn & Crutcher, LLP.
About the National Association of Private Fund Managers
The National Association of Private Fund Managers is a non-profit organization whose members include investment advisers in the private fund management industry. NAPFM was founded for, among other things, providing education to its members and representing their legal and economic interests before the government and in the courts. As part of this mission, NAPFM has submitted comments on behalf of its members in rulemaking proceedings and participated as amicus curiae in Federal court. NAPFM represents firms with total net assets under management of over $600 billion as of July 2023.
About MFA
Managed Funds Association (MFA), based in Washington, DC, New York, Brussels, and London, represents the global alternative asset management industry. MFA's mission is to advance the ability of alternative asset managers to raise capital, invest, and generate returns for their beneficiaries. MFA advocates on behalf of its membership and convenes stakeholders to address global regulatory, operational, and business issues. MFA has more than 180 member fund managers, including traditional hedge funds, credit funds, and crossover funds, that collectively manage over $3.2 trillion across a diverse group of investment strategies. Member firms help pension plans, university endowments, charitable foundations, and other institutional investors to diversify their investments, manage risk, and generate attractive returns over time.
About the Alternative Investment Management Association
The Alternative Investment Management Association (AIMA) is the global representative of the alternative investment industry, with around 2,200 corporate members in over 60 countries. AIMA's fund manager members collectively manage more than US $3 trillion in hedge fund and private credit assets.
AIMA draws upon the expertise and diversity of its membership to provide leadership in industry initiatives such as advocacy, policy and regulatory engagement, educational programmes and sound practice guides. AIMA works to raise media and public awareness of the value of the industry. AIMA set up the Alternative Credit Council (ACC) to help firms focused in the private credit and direct lending space. The ACC currently represents over 250 members that manage over US$1 trillion of private credit assets globally.
AIMA is committed to developing skills and education standards and is a co-founder of the Chartered Alternative Investment Analyst designation (CAIA) ? the first and only specialised educational standard for alternative investment specialists. AIMA is governed by its Council (Board of Directors).
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