SEC Proposes Extra Disclosures by Sure Funding Advisers and Funds about ESG Funding Practices | Dechert LLP

On Might 25, 2022, the U.S. Securities and Alternate Fee, by a vote of three-to-one, proposed for public remark a long-anticipated framework requiring sure funds and sure U.S. funding advisers to reveal their environmental, social and governance (ESG) funding practices (the Proposal).1 The Proposal, which is a companion to a separate launch issued the identical day proposing adjustments to Rule 35d-1 beneath the Funding Firm Act of 1940, would amend guidelines and varieties beneath each the Funding Advisers Act of 1940 and the Funding Firm Act.

The Proposal is meant to advertise the availability of “constant, comparable, and dependable” info to traders to facilitate knowledgeable decision-making associated to ESG funding product and technique choices. Specifically, the Proposal would search to alter current disclosure practices by (amongst different provisions): expressly requiring ESG-related disclosures in fund prospectuses and annual stories and funding adviser regulatory filings (the place funds use and methods use ESG funding strategies); implementing a standardized method for sure kinds of ESG funds to disclosure their ESG investing processes; and for the primary time, requiring disclosure of the usage of greenhouse fuel (GHG) emissions information in sure circumstances.2 The Proposal comes within the wake of considerable scrutiny of disclosure practices involving ESG funding practices by the SEC and its Workers.

Though not associated particularly to ESG investing, the Proposal additionally would amend Type N-CEN to require index funds to supply sure figuring out details about the index tracked.3

Overview of Required Fund Disclosures

Overview of Required Adviser Disclosures (Type ADV Brochures)

The SEC additionally proposed to amend Type ADV Half 2A to require registered funding advisers that think about ESG components as a part of their advisory enterprise to reveal info much like that required in fund registration statements and annual stories. Particularly, the Proposal would require registered advisers to supply: an outline of the ESG components thought of in offering advisory companies and the way they’re included and, if ESG components are thought of when deciding on, reviewing or recommending portfolio managers, an outline of the components thought of and the way they’re included.

Regulatory Reporting on Type N-CEN and Type ADV Half 1A

The Proposal additionally consists of proposed amendments to Kinds N-CEN and Type ADV Half 1A for funds and advisers.

Type N-CEN

The Proposal would add new Gadgets C.3(b) and (j) to Type N-CEN. Particularly, these things would require:

  • Merchandise C.3(b): Disclosure of the index tracked by an index fund, together with provision of an figuring out quantity (resembling a authorized entity identifier code (LEI)).
  • Merchandise C.3(j): Data associated to ESG funds’ funding methods and processes, together with: whether or not ESG-related abstract prospectus disclosure is offered beneath Kinds N-1A or N-2; the fund’s ESG classification (i.e., integration, ESG-focused, impression); whether or not E, S and/or G components are thought of; whether or not affiliated or third-party ESG information sources or consultants are used (together with names and LEIs of information sources); and whether or not the fund follows any third-party frameworks.

Type ADV Half 1A

The Proposal would amend Type ADV Half 1A to supply further details about the advisory companies offered to individually managed account purchasers and reported personal fund purchasers. Not like many elements of the Proposal, sure elements of the Half 1A amendments could be inapplicable to exempt reporting advisers. This info would typically parallel sure of the knowledge required to be reported with respect to funds on Type N-CEN.

Impacts to Different SEC Kinds

The Proposal would additionally modify Type N-CSR by including proposed Merchandise 7, which might require granular details about the method used for calculating and estimating the GHG emissions of a fund’s portfolio.9

Steerage on Compliance Insurance policies and Procedures; Advertising

The Launch additionally comprises steerage associated to fund and adviser compliance insurance policies, in addition to advertising supplies, within the ESG context.

Addressing compliance insurance policies and procedures, the Launch highlights the Fee’s present expectation that insurance policies and procedures handle the “accuracy of disclosures made to purchasers, traders and regulators, in addition to portfolio administration processes, together with consistency of portfolios with funding targets and disclosures by the adviser and/or fund.” It then interprets this obligation to the context of ESG, noting that “ESG methods, together with integration, ESG-focused and impression methods, will essentially require totally different ranges and kinds of compliance insurance policies and procedures.” With this in thoughts, the SEC defined that insurance policies and procedures “ought to handle the accuracy of ESG-disclosures made to purchasers, traders and regulators. . . . [and] portfolio administration processes to assist guarantee portfolios are managed persistently with the ESG-related funding targets disclosed by the adviser and/or fund.” The Launch offers particular examples of what the SEC deems to be “efficient” ESG-related disclosure, insurance policies, procedures, and practices.

The ESG Launch additionally explains the SEC’s views on the applying of present promoting necessities to the ESG context by) indicating that “greenwashing” might symbolize a type of false or deceptive assertion and affirmatively stating that, within the SEC’s view, “it typically could be materially deceptive for an adviser materially to overstate in an commercial the extent to which it makes use of or considers ESG components in managing shopper portfolios.”

Key Dates and Timing

The SEC proposed a one-year transition interval for: the proposed disclosure necessities in prospectuses beneath Kinds N-1A and N-2; the proposed disclosure necessities for UITs beneath Type N-8B-2; the proposed regulatory reporting beneath Type N-CEN; and the proposed disclosure necessities and regulatory reporting beneath Type ADV Elements 1 and a pair of.

The SEC proposed an 18-month transition interval for the proposed disclosures in shareholder stories and people filed beneath Type N-CSR.

Feedback on the SEC’s proposal are due 30 days after the Proposal is revealed within the Federal Register.

An upcoming Dechert OnPoint will present additional evaluation of this proposal.

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Footnotes

1) See Enhanced Disclosures by Certain Investment Advisers and Investment Companies about Environmental, Social, and Governance Investment Practices, Rel. Nos. IA-6034 & IC-34594 (Might 25, 2022) (ESG Launch). Except in any other case specified, the time period “fund” as used on this Dechert OnPoint refers to registered funding corporations (i.e., open-end funds, closed-end funds, and unit funding trusts (UITs)) and enterprise growth corporations (BDCs), and the time period “funding adviser” refers to any funding adviser registered beneath the Advisers Act and exempt reporting advisers beneath Sections 203(l) and 203(m) of the Advisers Act. At occasions, this NewsFlash tracks the ESG Launch with out the usage of citation marks. Phrases not outlined on this NewsFlash have the that means assigned to them within the ESG Launch.

2) As well as, the amendments would require tagging of sure of their ESG disclosures utilizing the Inline Extensible Enterprise Reporting Language (“Inline XBRL”) structured information language. This might apply to funds that file registration statements on Kinds N-1A, N-2, or S-6 and annual shareholder stories on Type N-CSR and annual stories on Type 10-Okay.

3) For functions of Type N-CEN, the time period “index fund” is outlined as “an funding firm, together with an Alternate-Traded Fund, that seeks to trace the efficiency of a specified index.”

4) The proposed amendments on this part would apply to open-end funds (together with ETFs) and closed-end funds (together with BDCs) – however not UITs – that incorporate ESG components into their funding course of. The Proposal would additionally amend Type N-8B-2 to require a UIT to, if a number of ESG components are used to pick out portfolio securities, briefly describe how the components are included (together with which components are used). UITs wouldn’t be topic to the proposed annual report necessities as a result of a UIT is just not required to supply a administration’s dialogue of fund efficiency part of its annual stories.

5) This would come with: any fund that has a reputation together with phrases indicating that the fund’s funding selections incorporate a number of ESG components and any fund whose gross sales literature or ads point out that the fund’s funding selections incorporate a number of ESG components through the use of them as a major or important consideration in deciding on investments. The ESG Launch signifies that it will additionally seize funds that observe an ESG-focused index and funds that apply inclusionary or exclusionary display primarily based on ESG components.

6) Particular necessities apply with respect to Impression Funds.

7) As a basic matter, disclosure could be required if proxy voting or engagement is a “important means” of implementing its ESG technique. The Launch offers steerage on circumstances the place proxy voting or engagement actions may very well be thought of “important”.

8) Each methodologies would require Scope 1 and Scope 2 emissions be included within the emissions calculation however wouldn’t require Scope 3 emissions. The GHG emissions necessities would leverage info newly-available info beneath the SEC’s proposal in March 2022 associated to guidelines for the enhancement and standardization of climate-related disclosures. For extra info, see the Dechert OnPoint titled “SEC Proposes Comprehensive Climate-Related Disclosure Rules”.

9) A proposed new Instruction 10 to Merchandise 24 of Type N-2 would impose parallel disclosure necessities for BDCs on Type 10-Okay.

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