Fallout From the Fifth Circuit’s Bombshell Ruling Vacating the Private Fund Adviser Rules

On June 5, 2024, the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) vacated the SEC’s private fund adviser rules (PFAR) after finding that the SEC lacked statutory authority to issue the rules under Sections 206(4) and 211(h) of the Investment Advisers Act of 1940. All of a sudden, the private funds industry has gone from committing copious amounts of hours to diligently preparing to comply with the PFAR’s extensive requirements to, surprisingly, doing nothing at all. To address the slew of questions the Fifth Circuit’s decision (Ruling) has created about the Ruling’s scope, the future of the PFAR, the impact of this development on other SEC efforts as to the private funds industry and how fund managers should proceed going forward, the Private Equity Law Report interviewed Akin Gump partners Brian T. Daly, Z.W. Julius Chen and Peter I. Altman. This article contains key takeaways from the conversation. See “High‑Level Takeaways and Observations About the Potential Impact of the Final Private Fund Reforms” (Feb. 8, 2024); and “Current and Former Enforcement Staffs’ Tips for Litigating Against the SEC” (Jan. 26, 2023).

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