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Fundstelle: Carroll, Observations on Judicial Approaches to Discerning Investment Adviser Status under the
Investment Advisers Act of 1940, ALJ 1/2015, 99–126 (http://alj.uni-graz.at/index.php/alj/article/view/39).
Observations on Judicial Approaches to Discerning Investment
Adviser Status under the Investment Advisers Act of 1940
Brian Carroll*, U.S. Securities & Exchange Commission/Villanova Law School
Abstract: This article analyzes judicial approaches to interpreting the definition of an invest-
ment adviser under the Investment Advisers Act of 1940, the United States federal statute gov-
erning investment advisers. It starts by noting the role of investment advisers in the United
States financial services industry and introduces the statutory definition of an investment advis-
er and each element of this definition. It explains briefly why adviser status is important and
touches on the relationship between investment adviser status and registration as an invest-
ment adviser with the United States Securities & Exchange Commission. Based on cases initiated
by the United States Securities & Exchange Commission, the United States Department of Justice
and investment adviser clients alleging investment adviser violations of the Investment Advisers
Act of 1940, the article discusses key judicial interpretations of the elements of the definition of
investment adviser. Along the way, the author shares his observations about these judicial ap-
proaches to interpreting the definition of an investment adviser by, among other things, evaluat-
ing some of the strengths and weaknesses reflected in these judicial approaches.
Keywords: investment adviser; investment advice; investment management; Section 202(a)(11);
Investment Advisers Act.
I. Introduction
Under United States federal securities law, the definition of an investment adviser under Section
202(a)(11) of the Investment Advisers Act of 1940 (“Advisers Act”) covers services provided by
thousands of investment management professionals ranging from portfolio managers advising
private investment funds, such as hedge funds, to certain types of personal financial advisers and
financial planners,1 collectively overseeing trillions of dollars in investment assets.2 The most signifi-
* Brian Carroll, an attorney and a certified public accountant, serves as a Senior Special Counsel at the United States
Securities & Exchange Commission, Philadelphia Regional Office. He is also an Adjunct Professor of Law at Villanova
Law School. The United States Securities & Exchange Commission (“Commission”) disclaims responsibility for any
private publications or statements of any of the Commission’s employee or commissioner. This article expresses the
author’s views and does not necessarily reflect those of the Commission, the commissioners, or other members of
the staff.
1 See SEC. AND EXCH. COMM’N, STUDY ON ENHANCING INVESTMENT ADVISER EXAMINATIONS 1, 32 (Jan. 2011) (discussing diver-
sity of investment advisory industry as “ranging from small, locally-operated financial planning firms to money
managers that are part of global financial institutions [...]”).
2 See id. at 10 (noting that as of Sept. 30, 2010, registered investment advisers managed $ 38.3 trillion in assets);
see also SEC. AND EXCH. COMM’N, DODD-FRANK ACT CHANGES TO INVESTMENT ADVISER REGISTRATION REQUIREMENTS 5 (Jan. 13,
2013) (“There are 10,754 advisers registered with the Commission with total assets under management of $ 49.66
trillion.”).
zurĂĽck zum
Buch Austrian Law Journal, Band 1/2015"
Austrian Law Journal
Band 1/2015
- Titel
- Austrian Law Journal
- Band
- 1/2015
- Autor
- Karl-Franzens-Universität Graz
- Herausgeber
- Brigitta Lurger
- Elisabeth Staudegger
- Stefan Storr
- Ort
- Graz
- Datum
- 2015
- Sprache
- deutsch
- Lizenz
- CC BY 4.0
- Abmessungen
- 19.1 x 27.5 cm
- Seiten
- 188
- Schlagwörter
- Recht, Gesetz, Rechtswissenschaft, Jurisprudenz
- Kategorien
- Zeitschriften Austrian Law Journal