The following Financial Services practice note provides comprehensive and up to date legal information covering:
The Investment Advisers Act of 1940 (Advisers Act) imposes a broad fiduciary duty on investment advisers registered with the Securities and Exchange Commission (SEC) to act in the best interests of their clients. (Note that most small to mid-size investment advisers are required to register with one or more states and are prohibited from registering as an investment adviser with the SEC.) For an outline of the duties owed by these investment advisers, reference must be made to the applicable state statutes and regulations. There are five broad types of obligations or requirements imposed on investment advisers by the SEC:
fiduciary duty of care to their clients
Advisers Act prohibitions designed to prevent fraud and other substantive regulation
books and records requirements
SEC oversight through inspection
Although not specifically enumerated in section 206 of the Advisers Act (the so called anti-fraud provisions of the Advisers Act), there is a general requirement that investment advisers act as a fiduciary in all dealings with their clients. The investment adviser must avoid conflicts of interest with its clients and is prohibited from taking unfair advantage of its clients' trust. This duty is considered to be more than merely acting with honesty and good faith. The investment adviser must put its clients' interests above those of its own. An investment adviser's fiduciary duty gives rise to
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Millett LJ subdivided types of constructive trust into two categories, distinguishing between:•the constructive trust proper, where equity intervenes to prevent the legal owner from unconscionably denying the beneficial interest of another (known as the institutional constructive trust)•the
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