Home > Journals > WMBLR > Vol. 8 (2016-2017) > Iss. 1 (2016)
William & Mary Business Law Review
Outside a Black Box: Court and Regulatory Review of Investment Valuations of Hard-to-Value Securities
Valuation is a critical function of investment advisers that has significant implications for both clients and advisers. One potential risk associated with valuation is that an investment adviser may abuse its position in valuing portfolio assets to accrue higher management and incentive fees to the detriment of clients. Although the valuation function may be viewed as an objective exercise, adviser valuations become subject to greater levels of discretion for hard-to-value securities, making determinations of adviser abuse less clear. Depending on the transparency of the adviser, the valuation process itself may become a black box to the client. Securities and Exchange Commission regulation of and enforcement actions over an investment adviser’s valuations of securities and court review of private litigation have taken different approaches to address this problem. Although Securities and Exchange Commission matters address questions of whether an adviser has appropriately valued a particular security, the focus of many enforcement matters addresses the process an adviser used to reach a valuation determination. In contrast, private litigants are constrained by court views of valuations of hard-to-value securities within the context of the antifraud statutes. In many cases, courts have taken the position that such determinations are simply opinions of an adviser. This Article surveys these approaches and concludes that judicial scrutiny should focus on a process-driven approach for adviser valuations.