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Allen & Overy files amicus brief in 5th Circuit in support of challenge to SEC private fund adviser rule

On November 8, 2023, Allen & Overy filed an amicus brief on behalf of the Committee on Capital Markets Regulation in support of petitioners in National Association of Private Fund Managers, et al. v. Securities and Exchange Commission. C. Wallace DeWitt, a senior counsel in the Washington, D.C. office, served as counsel of record on the brief.

The brief contended that by failing to conduct an adequate economic analysis of its recent private fund adviser rulemaking, the SEC has violated its statutory obligation under Section 202(c) of the Investment Advisers Act of 1940 to “consider” whether the rulemaking “will promote efficiency, competition, and capital formation.” The brief requested the panel of the Fifth Circuit to invalidate the SEC’s final rule as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” pursuant to Section 706 of the Administrative Procedure Act.