Page - 126 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 Brian Carroll 126 to interpret the phrase “engage in the business” as it appears in other federal statutes,189 in- cluding definitional provisions of the Commodity Exchange Act.190 In addition to interpreting this language, the Advisers Act itself offers guidance. § 222, State Regulation of Investment Advisers, among other things, addresses the allocation investment adviser oversight authority among states. In part, this allocation is dependent on the location of the advisers “place of business.”191 To explain the meaning of this term, the Commission promulgated Rule 222-1, Definitions, which states in part: “(a) Place of business. ‘Place of busi- ness’ of an investment adviser means: (1) An office at which the investment adviser regularly provides investment advisory services, solicits, meets with, or otherwise communicates with clients […].”192 Putting aside the office location context, these factors arguably describe in gen- eral terms conduct that tend to reflect engaging in the business of an investment adviser. They focus on regularly providing investment advice, soliciting clients and servicing clients. At its essence, these activities speak to the potential components of an engaged in the business approach that are consistent with the language and structure of the Advisers Act. VI. Conclusion This analysis of judicial approaches to interpreting the elements of § 202(a)(11) and the accom- panying observations illustrate the variety of definitional issues that for the most part remain undeveloped. In some instances, courts have tended toward an “I know it when I see it”193 tact in relying on certain facts to support investment adviser status, with little resort to the language or structure of the Advisers Act. In others, there is some effort to identify a nascent legal concept to support a particular approach, but again without developing it within the structure of the Advis- ers Act or other relevant legal authority. It is hoped that some of the observations offered may provide a starting point for building a more grounded and reflective approach to interpreting these elements, which may eventually be recognized by courts as an appropriate approach. 1997)”); see also Gibbs v. I-Flow, Inc. 2009 WL 482285 3 (S.D. Ind. 2009) (applying similar dictionary definition to define the term “engage”); BLACK’S LAW DICTIONARY 474 (5th ed. 1979) (defining “engaged” as “to employ or involve oneself; to take part in; to embark on.”). 188 See, e.g., U.S. v. Graham, 305 F.3d 1094, 1103 n.5 (10th Cir. 2002) (“See also Black’s Law Dictionary at 198 (6th ed. 1990) (defining business as ‘[e]mployment, occupation, profession, or commercial activity engage in for gain or livelihood.’”); see also U.S. v. Mazza-Alaluf, 607 F. Supp. 2d 484, 489 (S.D.N.Y. 2009) (“The statute [USA Patriot Act] does not define the ‘business,’ which should be afforded its ordinary meaning as an enterprise that operates for profit. See Travelers Insurance Co. v. Carpenter, 411 F.3d 323, 334 (2d Cir. 2005) (utilizing Black’s Law Dictionary to define a term undefined by statute); Black’s Law Dictionary (8th ed. 2004) (defining business as ‘[a] commercial enterprise carried on for profit.’”). 189 See, e.g., Bryan v. U.S., 524 U.S. 184 (1998) (discussing, inter alia, the “engaged in the business” language of 18 U.S.C. 922(a)(1)); U.S. v. Day, 476 F.2d 562, 567 (6th Cir. 1973) (citations omitted) (interpreting “engaged in the business” phrase). 190 U.S. Commodity Futures Trading Commission v. Hall, 2014 WL 4942312 (M.D.N.C. 2014) (discussing, inter alia, the engaged in the business language of § 1a(12)(A) of the Commodity Exchange Act defining a commodity trading advisor). 191 See § 222, State Regulation of Investment Advisers, 15 U.S.C. § 80b-22 (reference to investment adviser “place of business” throughout § 222). 192 Rule 222-1, Definitions, 17 C.F.R. § 275.22-1. See also Rule 202(a)(30)-1(c)(4), 17 C.F.R. § 275.2(a)(30)-1(c)(4), (defining investment adviser “place of business” as identical to definition of investment adviser “place of busi- ness” appearing in Rule 222-1(a), 17 C.F.R. § 275.22-1(a)). See generally Rules Implementing Amendments to the Investment Advisers Act of 1940, Investment Advisers Act Release No. 1633 (May 15, 1997), 62 FR 28112 (May 22, 1997) (adopting rule release). 193 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart concurring) (when discussing difficulty in defining hard-core pornography, Justice Stewart stated, “I know it when I see it.”)