Hedge Fund Events June 2015

The following are various hedge fund events happening this month.  Please email us if you would like us to add your event to this list.

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Date: May 31-June 2, 2015

Date: June 1, 2015

Date: June 2, 2015

Date: June 2, 2015

Date: June 2-3, 2015

Date: June 2-3, 2015

Date: June 3, 2015

Date: June 3, 2015

June 3, 2015

Date: June 3, 2015

Date: June 3-4, 2015

Date: June 3-4, 2015

Date: June 3-4, 2015

Date: June 4, 2015

Date: June 4, 2015

Date: June 4, 2015

Date: June 4, 2015

Date: June 7-9, 2015

Date: June 8-9, 2015

Date: June 8-9, 2015

Date: June 8-12, 2015

Date: June 9, 2015

Date: June 9, 2015

Date: June 9-10, 2015

  • Sponsor: Broadridge
  • Event: IDX 2015
  • Location: London, United Kingdom

Date: June 9-11, 2015

Date: June 9-11, 2015

Date: June 10, 2015

Date: June 10, 2015

Date: June 10, 2015

Date: June 10, 2015

Date: June 10-11, 2015

Date: June 10-11, 2015

Date: June 10-12, 2015

Date: June 10-12, 2015

Date: June 11, 2015

Date: June 11, 2015

Date: June 11, 2015

Date: June 11-12, 2015

Date: June 12, 2015

Date: June 15-16, 2015

Date: June 15-16, 2015

Date: June 15-19, 2015

Date: June 16-17, 2015

Date: June 17, 2015

Date: June 18, 2015

Date: June 18, 2015

Date: June 22, 2015

Date: June 22, 2015

Date: June 22-23, 2015

Date: June 23-24, 2015

Date: June 23-24, 2015

Date: June 24, 2015

  • Sponsor: MFA
  • Event: Forum 2015
  • Location: Chicago, IL

Date: June 25, 2015

Date: June 26, 2015

Date: June 29-July 2, 2015

Date: June 30, 2015

Date: June 30, 2015

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Cole-Frieman & Mallon provides legal services for hedge fund managers and other groups within the investment management industry.  Bart Mallon can be reached directly at 415-868-5345.

Cole-Frieman & Mallon LLP 2015 First Quarter Update

COLE_FRIEMAN_LOGO_large

 www.colefrieman.com

May 13, 2015

Clients and Friends:

The first quarter of 2015 was a busy period for investment managers and service providers alike and we find ourselves sending out this update very late.  As a variety of filing deadlines have passed and audit work is completed (or will be soon), we enter the second quarter with a number of new regulatory changes on the horizon, as well as many other topics worthy of discussion.  Below, we have prepared a short overview of some of these items.  Please note there are some items from the start of the second quarter which will be included in the next update.

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SEC Cybersecurity Sweep Examination Results.  The Office of Compliance Inspections and Examinations (“OCIE”) of the SEC recently released a Risk Alert in connection with its examination of over 100 broker-dealers (“BDs”) and registered investment advisers (“RIAs”) with respect to the cybersecurity preparedness and practices of such registered firms. The examinations focused on if and how the examined BDs and RIAs establish (1) cybersecurity policies, procedures, and oversight processes, (2) protect their networks and information, and (3) detect and handle unauthorized activities and other cyber-attacks.

Key findings from the examinations include:

  • More than 80% of RIAs and 90% of BDs examined have adopted written cybersecurity policies and conduct periodic firm-wide cybersecurity assessments.
  • Less than 25% of RIAs examined incorporate cybersecurity requirements into their contracts with vendors, service providers, and other business partners. However, more than 70% of BDs incorporate such provisions into their contracts.
  • More than 50% of BDs examined maintain insurance coverage for cybersecurity-related incidents, while only 21% of RIAS examined hold such policies. (Note that only one BD and one RIA reported that they had filed a claim with their insurance provider in connection with a cybersecurity incident.)

As shown in the statistics above, many RIAs and BDs could bolster their cybersecurity preparedness by including cybersecurity requirements in all of their vendor contracts and by obtaining insurance coverage for cybersecurity-related incidents. The OCIE has stated that the cybersecurity practices and preparedness of BDs and RIAs will be a focus for 2015, so we encourage our clients to contact their service providers to ensure that they are adequately protected against such cybersecurity risks.

The SEC has issued a Guidance Update in connection with the Risk Alert described above.  We will be discussing the “best practices” recommended by the SEC in a future quarterly update.

SEC 2015 Examination Priorities.  The SEC recently announced its 2015 examination priorities, which are intended to address market-wide issues, such as fraud detection/prevention and corporate governance, as well as those specific to particular business models and organizations.  In 2015, the SEC will focus on its efforts on: matters of importance for retail investors and investors saving for retirement, including whether the information, advice, products, and services being offered are consistent with applicable laws, rules and regulations; market-wide risks, such those created by clearing agencies, cybersecurity compliance and controls, and equity order routing conflicts; and, using data analytics to identify signals of potential illegal activity. Despite the SEC’s stated focus, its priorities list is not exhaustive and may be adjusted throughout the year in response to ongoing risk evaluation.

FINRA 2015 Exam Priorities.  FINRA published its 2015 Regulatory and Examinations Priorities Letter, outlining the organization’s enforcement priorities for the current year. While the priorities listed in the letter are too numerous to describe here, focus areas for 2015 will include:

  • Sale and supervision of interest-rate-sensitive and complex products, including alternative mutual funds;
  • Controls around the handling of wealth events in investors’ lives;
  • Management of cybersecurity risks;
  • Treatment of senior investors; and,
  • High-risk brokers and removing bad actors from the securities industry.

FINRA noted that they will increasingly rely on data analytics to identify potential problem areas within firms, and it encourages firms to use data analytics themselves to self-identify such problems.

Improperly Registered Investment Advisers.  Although not listed as an exam priority for 2015, investment advisers should be mindful that the SEC actively pursues improperly registered investment advisers. Several recent enforcement actions targeted SEC-registered investment advisers claiming to be Wyoming-based after investigations conducted by the SEC revealed that the investment advisers primarily directed their advising services from locations outside of Wyoming and should have been registered with the relevant state authority. We caution investment advisers against abusing the “Wyoming exception” or from exaggerating assets in order to secure SEC registration and avoid registration with state securities agencies.

Guidance Update Regarding Key Employee Trusts and Family Office Rule.  The Division of Investment Management of the SEC issued an Investment Management Guidance Update regarding whether certain key employee trusts would qualify as “Family Clients” under Rule 202(a)(11)(G)-1 of the Advisers Act (the “Family Office Rule”).  The Advisers Act defines “Family Clients” as including “any trust of which: each trustee or other person authorized to make decisions with respect to the trust is a key employee; and each settlor or other person who has contributed assets to the trust is a key employee.” The guidance update clarified that if a non-key employee makes non-investment decisions for the trust, the trust may still qualify as a Family Client so long as investment decisions are made by a key employee. “Investment decision” is not defined in the Advisers Act; however, the Division provided an illustrative list of decisions that would qualify as “investment decisions,” including preparing or filing taxes for the trust; keeping records for the trust; and distributing periodic statements or disclosures to trust beneficiaries.

Auditor Independence Violations. The SEC and Public Company Accounting Oversight Board (PCAOB) released an alert in November highlighting certain aspects the independence rules for non-issuer audit and attestation engagements. Auditors engaged to provide financial statement audit and attestation services for (i) non-issuer SEC-registered broker-dealers and (ii) SEC- and state-registered investment advisers and private funds who are subject to the SEC Custody Rule, are required to be “independent” from the clients that they audit. Under Rules 2-01(b) and (c) of Regulation S-X, an auditor is considered not to be “independent” if, at any time during the engagement, the auditor provides prohibited non-auditor services to the client, such as bookkeeping or financial statement preparation services. In December, the SEC sanctioned eight auditing firms for violating these rules when they prepared the financial statements for clients that they were hired to audit. The SEC noted that by preparing the financial statements for their clients, the auditors were effectively auditing their own work and inappropriately aligning themselves with the interests of the clients’ management teams rather than remaining neutral, independent auditors. As a result of the auditors’ non-independence, the auditors’ clients were also deemed to have violated their statutory obligation to provide independently audited financial statements. In light of these sanctions, we encourage our clients to ensure that their auditors remain independent throughout the auditing process and to engage other service providers to prepare their financial statements.

Marketing to Investors in Switzerland.  On March 1, 2015, new regulations came into effect that require specific steps to be taken before marketing to “unregulated qualified investors” in Switzerland. In Switzerland, a fund can be marketed to qualified investors without registering with the Swiss Financial Market Authority (“FINMA”). Qualified investors are divided into two categories: “regulated” and “unregulated.” “Regulated” qualified investors are entities that are already regulated by FINMA, such as banks, securities dealers, fund managers, and insurance companies.  The new regulations do not change the way funds are marketed to regulated qualified investors.

However, the new regulations do change the requirements for funds that wish to market to “unregulated” qualified investors, such as public institutions, pension funds, businesses, and high-net-worth individuals that (a) have made a declaration as such and (b) meet an asset and/or sophistication threshold. The new rules mandate that, before marketing to unregulated qualified investors, the fund must first: (1) appoint a licensed Swiss-representative to represent the fund to FINMA and Swiss investors, (2) appoint a Swiss bank to serve as a paying agent, (3) enter into a distribution agreement with the appointed Swiss-representative, and (4) make necessary disclosures to Swiss investors.

Nonetheless, Swiss investors do not trigger the Annex IV reporting requirements or the remuneration disclosure requirements under AIFMD and the up-front expense associated with marketing to Swiss investors is comparatively cheaper than in other jurisdictions. Funds interested in marketing to Swiss investors should consult with their offshore counsel to discuss whether marketing in Switzerland is worthy of additional attention and focus.

Cayman Islands FATCA Reporting.  The Department for International Tax Cooperation of the Cayman Islands (“DITC”) recently released guidance regarding the registration process for financial institutions with reporting requirements under the Cayman Islands FATCA framework on the Cayman Automated Exchange of Information Portal (“CAEIP”). Such reporting institutions are required to notify the DITC of the following information on or before May 21, 2015 (extended from the original deadline of March 31, 2015):

  • Name;
  • FATCA classification;
  • Global Intermediary Identification Number (aka GIIN – can be obtained on IRS website); and,
  • Point of Contact.

Following the initial informational submission on CAEIP described above, each Cayman Islands reporting institution is then required to submit their FATCA reports via the CAEIP by May 31, 2015.

Updated FATCA Guidance – British Virgin Islands.  Last June, the British Virgin Islands (“BVI”) and the United States entered an intergovernmental agreement that requires BVI financial institutions, including hedge funds, to report information about U.S. persons with offshore accounts to the BVI International Tax Authority (the “Authority”). Although BVI has not yet passed legislation or promulgated regulations under the agreement, the Authority has released a detailed guide to help affected entities comply with the new reporting requirements. The guide provides clarification about which entities must register with the IRS and report information to the Authority, due diligence requirements, and other procedural issues.

The initial reporting deadline is June 30, 2015; in subsequent years, the deadline will fall on May 31. Reports can only be filed through the BVI’s Financial Account Reporting System (“BVIFARS”). The Authority expects the website to be accessible by April 15, 2015. In the future, BVI may pass legislation and promulgate rules in accordance with the FATCA agreement. Managers should remain in touch with both U.S. and offshore fund counsel regarding the regulatory landscape and to plan any changes to the fund’s offering documents, and/or any investor communications that may become necessary.

Foreign Corporation Tax for Offshore Funds.  In January, the IRS’s Office of Chief Counsel released a memorandum explaining that an offshore fund and an offshore feeder may be taxed as a foreign corporation if the offshore fund engages in a “trade or business” within the United States. Normally an offshore fund qualifies for an exemption from taxation as a foreign corporation that covers security trading activities (the “Trading Safe Harbors”), but, as the memo clarifies, underwriting and money lending (as well as “other fact patterns”) are considered “trade and business” activities that do not fall within the Trading Safe Harbors. Offshore funds should consult with tax and legal advisors to consider whether their investment activities may fall outside the protection of the Trading Safe Harbors.

Cayman Fund Director Liability.  The Cayman Islands Court of Appeals overturned the contentious Weavering verdict on February 12, 2015.  In Weavering, the lower court found two directors of a Cayman fund “willfully negligent” for signing a quarterly report without reading its contents; the judge determined that a simple review of the quarterly report would have alerted the directors to fraudulent trading occurring within the fund. In reversing the verdict, the appellate court acknowledged that a director can be held willfully negligent for consciously choosing not to perform its duties to a fund, but signing a quarterly statement without reading the content is not in and of itself willfully negligent under Cayman law. Although the original ruling was reversed, the case highlights the importance for directors of Cayman Islands funds to not take their statutory duties lightly.

Finance Lenders Regulatory Reminder. The 2014 Annual Report for Lenders and Brokers Licensed under the California Finance Lenders Law (CFLL) was due on March 15, 2015. The form and instructions are available on the DBO’S website. In order to upload and file the report, licensees must log in to the self-service portal using their username and password. For licensees who have not registered in the DBO’s Self-Service DOCQNET Portal, registration is a three-step process: (1) licensees create an account; (2) DBO staff verify the information; and, (3) following the verification, licensees reenter the portal to complete their registration.  The registration process normally takes five days to complete. The registration portal can be found here.

Municipal Advisor Regulatory Update. The Municipal Securities Rulemaking Board (“MSRB”) and SEC have continued to develop municipal advisor rules in the areas of supervision and compliance, pay-to-play, standards of conduct including fiduciary duty, professional qualifications, and gifts and gratuities. The regulatory environment was discussed during a 2014 Compliance Outreach program for Municipal Advisors hosted by the MSRB, SEC and FINRA.  Notably, registered municipal advisors must be in compliance with the following MSRB Rules by April 23, 2015:

  • Rule G-44 Supervisory and Compliance Obligations of Municipal Advisors
  • Rule G-8 Books and Records
  • Rule G-9 Preservation of Record

The MSRB recently hosted a webinar on compliance with the foregoing rules.  As the municipal advisor regulatory framework is continuously changing, we recommend that registered municipal advisors regularly review the applicable MSRB Rules and register for MSRB email updates.

Electronic Blue Sky Notice Filings for Regulation D Offerings.  The North American Securities Administrators Association (“NASAA”) recently announced the launch of an online Electronic Filing Depository (“EFD”) for electronic notice filings made in connection with offerings under Rule 506 of Regulation D. The EFD will permit filers to submit the blue sky notice filings and pay the related filing fees electronically for such Regulation D offerings. Note that while some states currently accept electronic filings made through EFD, many states are expected to require such EFD-submitted filings in the near future.

Other Notes.

  • Basing Claims on Back-Tested Performance Data. Last December, the SEC issued a cease-and-desist order against an investment adviser for exaggerating the “proven track-record” of their proprietary trading technique.  The adviser advertised that their investing model, created in 2008, had been successful in managing client assets going back to 2001. The SEC determined that these claims were based on back-tested data, which snowballed into an assortment of securities law violations. The SEC prohibits substituting historic performance with back-tested data because such a claim, without disclosure, is materially misleading to investors. Investment advisers should be cognizant that back-tested data cannot be used to allege actual historic performance.
  • ESMA Guidelines and Technical Standards Overview. The European Securities and Markets Authority (“ESMA”) published an overview of guidelines and technical standards for an assortment of security-related regulations as well as compliance tables, consultation papers, and other useful information.  The overview is available on the ESMA website.
  • California Management Fee Withholding Tax. Many of you may have received a recent news bulletin that implied hedge funds with California investors will be subject to a new California state tax. The article was largely misleading, as the “new tax hit” the author identified generally reflects the status quo. California uses a “market-based” tax sourcing system: the source of revenues determines where the tax on such revenues should be paid. Most, if not all, fund managers already comply with this tax scheme. Note that there are on-going revisions to this rule and hearings scheduled for this summer, so the status quo may change. For now, this should not raise any “new” concerns for managers; however, we will be on the look-out for any updates on this front.
  • New Irish Legal Entity Designed for Hedge Funds. Ireland, long an attractive alternative to the Caribbean for offshore investment vehicles, recently passed legislation creating a new legal entity specifically tailored for hedge funds. The form of entity, named an Irish Collective Asset-Management Vehicle (“ICAV”), is designed to minimize the administrative burdens of establishing and maintaining an investment vehicle in Ireland, while at the same time permitting the vehicle to “check the box” and be taxed by the U.S. as a partnership. The latter feature allows U.S. taxable investors to circumvent certain adverse tax consequences that typically apply to U.S. investors of passive foreign investment companies.  Additionally, an ICAV will fall under Ireland’s tax regime for regulated funds, meaning that it is generally exempt from Irish income taxes at the fund level, transfer taxes for the issue, transfer, or sale of shares, and withholding taxes on distributions to non-Irish investors. The Irish Parliament hopes that ICAVs will further encourage the formation of new funds, and the re-domiciliation of existing offshore funds, in Ireland.
  • New Registration Requirement for Security-Based SDRs. The SEC has adopted new rules requiring security-based swap data repositories (“SDRs”) to register with the SEC and proposed additional rules relating to the reporting and public dissemination of security-based SDRs.  A notice about the new rule and proposed rules can be found here.
  • Alternative Trading Systems Reporting. FINRA is soliciting comments for proposed rules that would require alternative trading systems (“ATSs”) to report quotation information for corporate and agency debt securities to FINRA.  More information about the proposed rules can be found here.
  • OCR Final Rule. The CFTC issued a no-action letter extending the conditional deadline to comply with the OCR Final Rule’s expanded information reporting requirements. The new deadlines are September 30, 2015 for New Form 102A, New Form 102S and DCM threshold accounts via New Form 102B and February 13, 2017 for SEF volume threshold accounts via New Form 102B.  The deadline for reporting on New Form 40/40S and New Form 71 is February 11, 2016.  The extended deadlines are conditioned on the Reporting Parties continuing to report on Legacy Form 102, Legacy 102S Filing, Legacy Form 40, and Legacy 40S Filing.  The no-action letter can be found here.

Compliance Calendar.  As you plan your regulatory compliance timeline for the coming months, please keep the following dates in mind:

Deadline             Description

March 31, 2015  Form ADV annual updating amendment deadline.

April 15, 2015     1st Quarter 2015 Form PF filing for quarterly filers (Large Liquidity Fund Advisers).

April 30, 2015     2014 Annual Form PF filing for annual filers (Large Private Equity Fund Advisers and Smaller Private Fund Advisers).

April 30, 2015     Offer or delivery of Form ADV Part 2 to clients (most registered investment advisers); Delivery of Privacy Notice.

April 30, 2015     Delivery of audited financial statements to investors (most private fund managers, including SEC, State and CFTC registrants).

April 30, 2015     Quarterly NAV Report (registered commodity pool operators claiming the 4.7 exemption).

May 5, 2015        FATCA registration with the IRS through the online web portal found here. Enter into a foreign financial institution agreement with the IRS via the web portal, or comply with an applicable intergovernmental agreement. Meet the other due diligence, reporting and withholding requirements under FATCA, as applicable.

May 15, 2015      Form 13F filing (advisers managing $100 million in 13F Securities).

May 15, 2015      CTA-PR filing.

May 21, 2015      Deadline for Cayman Islands Financial Institutions with reporting obligations under the Cayman FATCA regulatory framework to register their status on the Cayman Islands Tax Information Authority on the Cayman Automated Exchange of INFORMATION Portal (extended from March 31, 2015).

May 31, 2015      First reporting deadline for Cayman Islands Financial Institutions in respect of the Cayman FATCA regulatory framework.

June 30, 2015     Delivery of audited financial statements to investors (private fund managers to funds of funds, including SEC, State and CFTC registrants).

June 30, 2015     Deadline for filing audited financial statements for preceding financial year and Fund Annual Return with Cayman Islands Monetary Authority.

June 30, 2015     Review transactions and assess whether Form 13H needs to be amended.

Variable               Distribute copies of Schedule K-1 to fund investors.

Periodic Filings  Form D and Blue Sky filings should be current.

Please contact us with any questions or for assistance with any compliance, registration or planning issues on any of the above topics.

Sincerely,

Karl Cole-Frieman, Bart Mallon & Lilly Palmer

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Cole-Frieman & Mallon LLP is a premier boutique investment management law firm, providing top-tier, responsive and cost-effective legal solutions for financial services matters. Headquartered in San Francisco, Cole-Frieman & Mallon LLP has an international practice that services both start-up investment managers as well as multi-billion dollar firms. The firm provides a full suite of legal services to the investment management community, including: hedge fund, private equity fund, and venture capital fund formation, adviser registration, counterparty documentation, SEC, CFTC, NFA and FINRA matters, seed deals, hedge fund due diligence, employment and compensation matters, and routine business matters.

Hedge Fund Events May 2015

The following are various hedge fund events happening this month.  Please email us if you would like us to add your event to this list.

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Date: May 4, 2015

Date: May 5, 2015

Date: May 5, 2015

Date: May 5, 2015

Date: May 5-6, 2015

Date: May 5-8, 2015

  • Sponsor: SkyBridge Capital
  • Event: SALT Las Vegas
  • Location: Las Vegas, NV

Date: May 6, 2015

Date: May 6, 2015

Date: May 6, 2015

Date: May 6, 2015

Date: May 7, 2015

Date: May 10-11, 2015

Date: May 12, 2015

Date: May 12, 2015

Date: May 12-13, 2015

Date: May 13, 2015

Date: May 13, 2015

Date: May 13, 2015

Date: May 13-14, 2015

Date: May 14, 2015

Date: May 18-20, 2015

Date: May 19, 2015

Date: May 19, 2015

Date: May 20, 2015

Date: May 20, 2015

Date: May 21, 2015

Date: May 27-28, 2015

Date: May 27-29, 2015

Date: May 28, 2015

Date: May 30, 2015

Date: May 31-June 2, 2015

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Cole-Frieman & Mallon provides legal services for hedge fund managers and other groups within the investment management industry.  Bart Mallon can be reached directly at 415-868-5345.

Hedge Fund Events April 2015

The following are various hedge fund events happening this month.  Please email us if you would like us to add your event to this list.

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Date: April 1, 2015

Date: April 6, 2015

Date: April 7, 2015

Date: April 9, 2015

Date: April 12-14, 2015

Date: April 13, 2015

Date: April 13-14, 2015

Date: April 13-14 , 2015

Date: April 13-16, 2015

  • Sponsor: SIFMA
  • Event: Ops 2015
  • Location: San Diego, CA

Date: April 14-17, 2015

Date: April 15-16 , 2015

Date: April 16, 2015

Date: April 19-21, 2015

Date: April 20, 2015

Date: April 20-21, 2015

Date: April 21, 2015

Date: April 21, 2015

Date: April 22-23, 2015

  • Sponsor: FRA
  • Event: OCIO Summit
  • Location: New York, NY

Date: April 22-23, 2015

Date: April 22-24, 2015

Date: April 22-24, 2015

Date: April 23, 2015

Date: April 23, 2015

Date: April 23-24, 2015

Date: April 26-28, 2015

Date: April 26-29, 2015

Date: April 27-28, 2015

Date: April 27-28, 2015

Date: April 27-29, 2015

Date: April 28, 2015

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Cole-Frieman & Mallon LLP provides legal services for hedge  fund managers and other groups within the investment industry.  Bart Mallon can be reached directly at 415-868-5345.

Hedge Fund Events March 2015

The following are various hedge fund events happening this month.  Please email us if you would like us to add your event to this list.

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Date: March 2-3, 2015

Date: March 3, 2015

Date: March 3-4, 2015

  • Sponsor: sifma
  • Event: IRLS 2015
  • Location: New York, NY

Date: March 4, 2015

Date: March 4, 2015

Date: March 5, 2015

Date: March 5, 2015

Date: March 5, 2015

  • Sponsor: Capital Link
  • Event: MLP Forum
  • Location: New York, NY

Date: March 5, 2015

Date: March 5, 2015

  • Sponsor: CHFA
  • Event: AltsLA
  • Location: Los Angeles, CA

Date: March 5-6, 2015

Date: March 9-10, 2015

Date: March 9-11, 2015

Date: March 9-11, 2015

Date: March 10, 2015

Date: March 10, 2015

Date: March 10, 2015

Date: March 10-13, 2015

Date: March 11-12, 2015

Date: March 11-13, 2015

Date: March 12, 2015

Date: March 12, 2015

Date: March 12-13, 2015

Date: March 14, 2015

  • Sponsor: Quantopian
  • Event: QuantCon 2015
  • Location: New York, NY

Date: March 16, 2015

Date: March 18, 2015

Date: March 18-19, 2015

Date: March 19, 2015

Date: March 20, 2015

Date: March 23, 2015

Date: March 24, 2015

Date: March 24, 2015

Date: March 24, 2015

Date: March 24-25, 2015

Date: March 24-25, 2015

Date: March 25-26, 2015

Date: March 26, 2015

Date: March 26, 2015

Date: March 30-31, 2015

Date: March 30-31, 2015

Date: March 30-April 1, 2015

  • Sponsor: WBR
  • Event: FIMA 2015
  • Location: Boston, MA

Date: March 31, 2015

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Cole-Frieman & Mallon provides legal services for hedge fund managers and other groups within the investment management industry.  Bart Mallon can be reached directly at 415-868-5345.

Hedge Fund Events February 2015

The following are various hedge fund events happening this month.  Please email us if you would like us to add your event to this list.

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Date: February 1, 2015

Date: February 2-4, 2015

Date: February 3, 2015

Date: February 3, 2015

Date: February 3, 2015

Date: February 4, 2015

Date: February 4, 2015

Date: February 4, 2015

Date: February 4, 2015

Date: February 4-6, 2015

Date: February 6, 2015

Date: February 8-11, 2015

Date: February 9-11, 2015

Date: February 9-10, 2015

Date: February 9-11, 2015

Date: February 10, 2015

Date: February 11, 2015

Date: February 11, 2015

Date: February 11-13, 2015

Date: February 12-13, 2015

Date: February 17, 2015

Date: February 17, 2015

Date: February 17, 2015

Date: February 18-19, 2015

Date: February 19, 2015

Date: February 19, 2015

Date: February 19-20, 2015

Date: February 22-23, 2015

Date: February 23, 2015

Date: February 23, 2015

Date: February 23, 2015

Date: February 24-25, 2015

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Cole-Frieman & Mallon LLP provides legal services for hedge fund managers and other groups within the investment management industry.  Bart Mallon can be reached directly at 415-868-5345.

Cole-Frieman & Mallon LLP 2014 Fourth Quarter Update

COLE_FRIEMAN_LOGO_largewww.colefrieman.com

December 29, 2014

Clients, Friends, Associates:

December is the busiest month of the year for most private fund managers. In addition to end of year administrative upkeep, the regulatory landscape has shifted dramatically over the past twelve months. As a result, year-end processes and 2015 planning are particularly important, especially for General Counsels, CCOs and key operations personnel. As we head into 2015, we have put together this checklist to help managers stay on top of the business and regulatory landscape for the coming year.

This overview includes the following:

  • Annual Compliance & Other Items
  • Annual Fund Matters
  • Annual Management Company Matters
  • Regulatory & Other Changes in 2014
  • Focus for Next Year
  • CFTC Regulation
  • Compliance Calendar

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Annual Compliance & Other Items:

New Issue Status.  On an annual basis, managers need to confirm or reconfirm the eligibility of investors that participate in initial public offerings or new issues, pursuant to both FINRA Rules 5130 and 5131.  Most managers reconfirm investors’ eligibility via negative consent (i.e. investors are informed of their status on file with the manager and are asked to inform the manager of any changes).  No response operates as consent to the current status.

ERISA Status.  Given the significant problems that can occur from not properly tracking ERISA investors in private funds, we recommend that managers confirm or reconfirm on an annual basis the ERISA status of their investors.  This is particularly important for managers that track the underlying percentage of ERISA funds for each investor.  This reconfirmation can also be obtained through negative consent.

Annual Privacy Policy Notice.  On an annual basis, a registered investment adviser must provide its natural person clients with a copy of its privacy policy, even if there are no changes to the policy.

Annual Compliance Review.  On an annual basis, the CCO of a registered investment adviser must conduct a review of the adviser’s compliance policies and procedures.  This annual compliance review should be in writing and presented to senior management.  We recommend that you discuss the annual review with your outside counsel or compliance firm, who can provide guidance about the review process as well as a template for the assessment and documentation.  Advisers should be careful that sensitive conversations regarding the annual review are protected by attorney-client privilege.  CCOs may also want to consider additions to the compliance program.  Advisers that are not registered may still wish to review their procedures and/or implement a compliance program as a best practice. 

Form ADV Annual Amendment.  Registered investment advisers (“RIAs”), or managers filing as exempt reporting advisers (“ERAs”), with the SEC or a state securities authority must file an annual amendment to Form ADV within 90 days of the end of their fiscal year.  RIAs must provide a copy of the updated Form ADV Part 2A brochure and Part 2B brochure supplement (or a summary of changes with an offer to provide the complete brochure) to each “client”.  Note that for SEC-registered advisers to private investment vehicles, a “client” for purposes of this rule include the vehicle(s) managed by the adviser.  State-registered advisers need to examine their state’s rules to determine who constitutes the “client”.

Switching to/from SEC Regulation.  

SEC Registration. Managers who no longer qualify for SEC registration as of the time of filing the annual amendment must withdraw from SEC registration within 180 days after the end of their fiscal year by filing Form ADV-W.  Managers should consult their state securities authorities to determine whether they are required to register in their home states.  Managers who are required to register with the SEC as of the date of their annual amendment must register with the SEC within 90 days of filing the annual amendment.

Exempt Reporting Advisers. Managers who no longer meet the definition of an ERA will need to submit a final report as an ERA and apply for registration with the SEC or the relevant state securities authority, if necessary, generally within 90 days after the filing of the annual amendment.

Practices under the Rule require specific implementation, and RIAs advising separately managed accounts will have different obligations than those generally outlined above.  Certain RIAs also may qualify for exemptions under the Rule, and thus RIAs are encouraged to consult with legal counsel about their specific obligations under the new regime.

Trade Errors.  Managers should make sure that all trade errors are properly addressed pursuant to the manager’s trade errors polices by the end of the year.  Documentation of trade errors should be finalized, and if the manager is required to reimburse any of its funds or other clients, it should do so by year-end.

Soft Dollars.  Managers that participate in soft dollar programs should make sure that they have addressed any commission balances from the previous year.

Custody Rule Annual Audit.

SEC Registered IA. SEC registered advisers must comply with certain custody procedures, including (i) maintaining client funds and securities with a qualified custodian; (ii) having a reasonable basis to believe that the qualified custodian sends an account statement to each advisory client at least quarterly; and (iii) undergoing an annual surprise examination conducted by an independent public accountant.

Advisers to pooled investment vehicles may avoid both the quarterly statements and surprise examination requirements by having audited financial statements prepared in accordance with GAAP by an independent public accountant registered with the Public Company Accounting Oversight Board.  Statements must be sent to the fund or, in certain cases, investors in the fund, within 120 days after the fund’s fiscal year end.  Managers should review their custody procedures to ensure compliance with the rules.  Requirements for state-registrants may differ, and we encourage you to contact us if you have any questions or concerns about your custody arrangements.

California Registered IA. California-registered investment advisers that manage pooled investment vehicles and are deemed to have custody of client assets must, among other things, (1) provide notice of such custody on the Form ADV, (2) maintain client assets with a qualified custodian; (3) engage an independent party to act in the best interest of investors to review fees, expenses and withdrawals; and (4) retain an independent certified public accountant to conduct surprise examinations of assets.  Advisers to pooled investment vehicles may avoid the independent party and surprise examinations requirements by having audited financial statements prepared by an independent public accountant registered with the Public Company Accounting Oversight Board and distributing such audited financial statements to all limited partners (or members or other beneficial owners) of the pooled investment vehicle.

Advisers registered in other states should consult with legal counsel about those states’ custody requirements. 

Annual Re-Certification of CFTC Exemptions.  CPOs and CTAs currently relying on certain exemptions from registration with the CFTC will be required to re-certify their eligibility within 60 days of the calendar year end.  CPOs currently relying on CFTC Regulation 4.13(a)(3) will need to evaluate whether the commodity pool is still eligible for the exemption when taking into account the new CFTC regulated products. 

CPO and CTA Annual Updates. Registered CPOs and CTAs must prepare and file Annual Questionnaires and Annual Registration Updates with the NFA, as well as submit payment for annual maintenance fees and NFA membership dues. Registered CPOs must also prepare and file their fourth quarter report for each commodity pool  on Form CPO-PQR and CTAs must file their fourth quarter report on Form CTA-PR (the NFA recently made some changes to both forms, as described in a Notice to Members). Unless eligible to claim relief under Regulation 4.7, registered CPOs and CTAs must update their disclosure documents periodically, as they may not use any document dated more than 12 months prior to the date of its intended use. Disclosure documents that are materially inaccurate or incomplete must be promptly corrected and the corrected version must be promptly distributed to pool participants.

Schedule 13G/D and Section 16 Filings.  Managers who exercise investment discretion over accounts (including funds and separately managed accounts) that are beneficial owners of 5% or more of a registered voting equity security must report these positions on Schedule 13G.  Schedule 13G filings are updated annually within 45 days of the end of the year. For managers who are also making Schedule 13D filings and/or Section 16 filings, this is an opportune time to review your filings to confirm compliance and anticipate needs for Q1.

Schedule 13D is required when a manager is ineligible to file the short form Schedule 13G, and is due ten days after acquisition of more than 5% beneficial ownership of a registered voting equity security.

Section 16 filings are required for “corporate insiders” (including beneficial owners of 10% or more of a registered voting equity security). An initial Form 3 is due within 10 days after becoming an “insider”; Form 4 reports ownership changes and is due by the end of the second business day after an ownership change; and Form 5 reports any transactions that should have been reported earlier on a Form 4 or were eligible for deferred reporting and is due within 45 days after the end of each fiscal year

Form 13F.  A manager must file a Form 13F if it exercises investment discretion with respect to $100 million or more in certain securities within 45 days after the end of the year in which the manager reaches the $100 million filing threshold.  The SEC lists the securities subject to 13F reporting on its website.

Form 13H.  Managers who meet the SEC’s large trader thresholds (in general, managers whose transactions in exchange-listed securities equal or exceed two million shares or $20 million during any calendar day, or 20 million shares or $200 million during any calendar month) are required to file an initial Form 13H with the SEC within 10 days of crossing the threshold.  Large traders also need to amend Form 13H annually within 45 days of the end of the year.  In addition, changes to the information on Form 13H will require interim amendments following the calendar quarter in which the change occurred.

SEC Form D.  Form D filings for most funds need to be amended on an annual basis, on or before the anniversary of the initial SEC Form D filing.  Copies of Form D can be obtained by potential investors via the SEC’s website.

Blue Sky Filings.  On an annual basis, a manager should review its blue sky filings for each state to make sure it has met any renewal requirements.  States are increasingly imposing late fees or rejecting late filings altogether.  Accordingly, it is critical to stay on top of filing deadlines for both new investors and renewals.

IARD Annual Fees.  Preliminary annual renewal fees for state registered and SEC registered investment advisers are due by December 12, 2014 (submit payment by December 9 in order for payment to post prior to the deadline).

Pay-to-Play and Lobbyist Rules.  SEC rules disqualify investment advisers, their key personnel and placement agents acting on their behalf, from seeking to be engaged by a governmental client if they have made political contributions.  State and local governments are following suit, including California, which requires internal sales professionals who meet the definition of “placement agents” (people who act for compensation as finders, solicitors, marketers, consultants, brokers, or other intermediaries in connection with offering or selling investment advisory services to a state public retirement system in California) to register with the state as lobbyists, and comply with California lobbyist reporting and regulatory requirements. Investment professionals (employees who spend at least one-third of their time managing the assets or securities of the manager) are statutorily excluded from California’s “placement agent” definition, and thus do not have to register as lobbyists. Note that managers offering or selling investment advisory services to local government entities have to register as lobbyists in the applicable cities and counties.

State laws on lobbyist registration differ widely, so we recommend reviewing your reporting requirements in the states in which you operate to make sure you are in compliance with the rules.

Form PF.  Managers to private funds that are either registered with the SEC or required to be registered with the SEC and have at least $150 million must file Form PF.  Smaller private advisers (fund managers with fewer than $1.5 billion in regulatory AUM) must file Form PF annually within 120 days of their fiscal year end. Larger private advisers (fund managers with $1.5 billion or more in regulatory AUM) must file Form PF within 60 days of the end of each fiscal quarter.

Electronic Schedule K-1s. The has IRS authorized partnerships and limited liability companies taxed as partnerships to issue Schedule K-1s to investors solely by electronic means, provided the partnership has received the investor’s affirmative consent. States may have different rules regarding electronic K-1s and partnerships should check with their counsel whether they may still be required to send state K-1s on paper. Partnerships must also provide each investor with specific disclosures that include a description of the hardware and software necessary to access the electronic K-1s, how long the consent is effective and the procedures for withdrawing the consent. If you would like to send K-1s your investors electronically you should discuss your options with your service providers.

“Bad Actor” Recertification Requirement. Last year the SEC adopted bad actor disqualification provisions for Rule 506 of Regulation D. These new provisions provide that an issuer is disqualified from relying on Rule 506(b) and 506(c) of a Regulation D offering if the issuer or any other “covered person” has a relevant disqualifying event. Under the rule, fund managers are required to determine whether they are subject to the bad actor disqualification any time they are offering or selling securities in reliance on Rule 506. The SEC issued a Q&A in December 2013 further clarifying, among other things, that “an issuer may reasonably rely on a covered person’s agreement to provide notice of a potential or actual bad actor triggering event pursuant to, for example, contractual covenants, bylaw requirements, or an undertaking in a questionnaire or certification. However, if an offering is continuous, delayed or long-lived, the issuer must update its factual inquiry periodically through bring-down of representations, questionnaires and certifications, negative consent letters, periodic re-checking of public databases, and other steps, depending on the circumstances.” Fund managers should consult with fund counsel to determine how frequently such an update is required. As a matter of practice, most fund managers should perform such an update at least annually.

Annual Fund Matters:

Wash Sales. Managers should carefully manage wash sales for year end. Failure to do so could result in embarrassing book/tax differences for investors. Certain dealers can provide managers with swap strategies to manage wash sales, including Basket Total Return Swaps and Split Strike Forward Conversion. These strategies should be considered carefully to make sure they are consistent with the investment objectives of the fund.

Redemption Management. Managers with significant redemptions at the end of the year should carefully manage the unwinding positions so as to minimize transaction costs in the current year (that could impact performance), and prevent transaction costs from impacting remaining investors in the next year. When closing funds or managed accounts, managers should pay careful attention to the liquidation procedures in the managed account agreement and the fund constituent documents.

NAV Triggers and Waivers.  Managers should promptly seek waivers of any applicable termination events set forth in a fund’s ISDA or other counterparty agreement that may be triggered by redemptions, performance or a combination of both at the end of the year (NAV declines are common counterparty agreement termination events).

Fund Expenses.  Managers should wrap up all fund expenses for 2014 if they have not already done so.  In particular, managers should contact their outside legal counsel to obtain accurate and up to date information about legal expenses for inclusion in the NAV for year-end performance.

Annual Management Company Matters:

Management Company Expenses.  Managers who distribute profits on an annual basis should attempt to address management company expenses in the year they are incurred.  If ownership or profit percentages are adjusted at the end of the year, a failure to manage expenses could significantly impact the economics of the partnership or the management company.

Employee Reviews.  An effective annual review process is important to reduce employment-related litigation and protect the management company in the event of such litigation.  Moreover, it is an opportunity to provide context for bonuses, compensation adjustments, employee goals and other employee-facing matters at the firm.  It is not too late to put an annual review process in place.

Compensation Planning.  In the fund industry, and the financial services industry in general, the end of the year is the appropriate time to make adjustments to compensation programs.  Since much of a manager’s revenue is tied to annual income from incentive fees, any changes to the management company structure, affiliated partnerships, or any shadow equity programs should be effective on the first of the year.  Make sure that partnership agreements and operating agreements are appropriately updated to reflect such changes.

Insurance.  If a manager carries D&O Insurance or other liability insurance, the policy should be reviewed on an annual basis to make sure that the manager has provided notice to the carrier of all claims and all potential claims.  Also, newly launched funds should be added to the policy as appropriate.

Regulatory & Other Changes in 2014:

Second Circuit Overturns Insider Trading Convictions. On December 10, 2014, the Second Circuit Court of Appeals reversed convictions of two former hedge fund managers for insider trading; a result that may make it harder for prosecutors to prove the crime in the future.  The issue on appeal in the case – United States v. Newman – was whether, in order to be convicted of insider trading, a downstream tippee of the material, non-public information has to know that the insider who leaked the information received a personal benefit from doing so.  The three-judge panel ruled unequivocally that “a jury must find that a tippee knew that the insider disclosed confidential information in exchange for a personal benefit.”  This case will likely impact how far down a tipper/tippee chain prosecutors can go in prosecuting “remote tippees” for insider trading.

FATCA Updates.

Implementing Regulations.  Many jurisdictions in which offshore funds are commonly domiciled, such as the Cayman Islands and the British Virgin Islands, have entered into intergovernmental agreements (“IGAs”) with the U.S. regarding the Foreign Account Tax Compliance Act (“FATCA”).  Such IGAs generally provide that a foreign government office in the country of domicile will collect the information required by FACTA and transmit it to the IRS.  However, until each jurisdiction passes domestic implementing legislation to enact its IGA, it is often unclear exactly what information must be provided, how it will be collected, and to which government entity it should be directed.

In early July, the Cayman Islands passed such implementing legislation as well as corresponding regulations that detail a fund’s obligations.  BVI regulators released implementing legislation in October, but to date it has not been passed.  Managers should remain in touch with both U.S. and offshore fund counsel regarding the regulatory landscape and to plan any changes to the fund’s offering documents, and/or any investor communications that may become necessary.

UK FATCA. The United Kingdom and its Overseas and Crown Dependences, including the British Virgin Islands and the Cayman Islands, have entered into intergovernmental agreements (“UK IGAs”) to implement an automatic exchange of information for tax purposes.  These UK IGAs are similar to FATCA in that they will require investment funds domiciled in those jurisdictions to undertake due diligence and annual reporting on specified UK persons, however, unlike FATCA, there are no withholding taxes assessed in the event of non-compliance.

New Investors to funds will have to identify themselves as either a “Specified UK Person” or “Passive Non-Financial Foreign Entity”.  Funds ought to perform thorough searches on pre-existing investors regarding UK mailing addresses and UK account numbers.  Managers should discuss the implications with their tax advisor and legal counsel.

 Global FATCA. On October 29, over 50 jurisdictions (notably including the Cayman Islands and British Virgin Islands but excluding the United States) signed on to the Organisation for Economic Co-operation and Development’s (“OECD”) Multilateral Competent Authority Agreement (“MCAA”) for the implementation of the automatic exchange of tax information pursuant to the OECD’s Common Reporting Standard.

 Like many IGAs implementing FATCA, the MCAA requires each signatory jurisdiction to implement standardized customer due-diligence procedures and reporting requirements for financial institutions and to automatically exchange the reported information with other governments signatory to the MCAA. The MCAA will be activated when the tax authorities in each signatory jurisdiction confirm to the OECD that they have the necessary implementing legislation in place. The Cayman Islands’ implementing legislation discussed above should suffice for purposes of MCAA implementation as well.

The MCAA signifies the increasing global importance of tax transparency regimes like FATCA, and will result in expanded international tax compliance obligations for financial institutions in signatory jurisdictions. Managers should monitor the OECD’s website (available here) for implementation updates.

SEC Guidance on “Reasonable Steps” to Verify Accredited Investors. We receive a lot of questions about general solicitations, but few managers have actually taken steps to engage in them. In order to engage in general solicitation under Rule 506(c), fund managers must, among other items, take “reasonable steps” to verify that each subscriber for fund interests meets the accredited investor standard. The SEC has previously described “safe harbors” with steps that, if followed, constitute sufficient evaluation of a prospective investor’s accredited investor status. The SEC this year released a new Q&A that addresses common questions regarding income and net worth calculations under the safe harbor rules.   

AIFMD Annex IV Reporting. The European Union’s Alternative Investment Fund Managers Directive (“AIFMD”), generally requires alternative investment fund managers (“AIFMs”) that manage or market alternative investment funds (“AIFs”) to EU investors to comply with heightened reporting and disclosure requirements. Notable is the imposition of a new Annex IV reporting requirement on AIFMs with assets under management of at least €100 million. Annex IV is a large complex filing, similar to the Form PF filed with the SEC, and it must be filed either semiannually or quarterly (depending on various factors) in each EU Member State where AIFs are marketed. The first Annex IV filings are due no later than January 30, 2015.

Annex IV requires substantial information reporting, and although it shares almost 60% of data points with Form PF, a number of differences (including differences in how AUM is calculated) prevent merely transferring Form PF data to Annex IV.

The UK’s Financial Conduct Authority (“FCA”) recently issued guidance specifying that managers marketing an AIF in the UK that is a feeder fund need only report on the assets of the feeder (whose only investment may be the master fund) on Annex IV, significantly reducing the burden of such reporting.

NFA Late Disciplinary Disclosure Fee. This year the NFA began imposing a $1,000 late fee when a firm or individual does not disclose a disciplinary matter upon registration or fails to promptly update an existing registration to disclose a new disciplinary matter. Generally, the NFA considers a matter to have been promptly disclosed if the firm discloses the matter before the NFA discovers the matter and requests disclosure. Managers that are members of the NFA should make sure they have sufficient compliance policies in place to ensure that all disciplinary matters are promptly disclosed.

Cayman Islands Revised Licensing Regime. The Directors Registration and Licensing Law (the “DRLL”), effective as of June 4, 2014, established a new registration and licensing regime for directors of certain Cayman Island regulated entities, including directors of entities registered as mutual funds with the Cayman Islands Monetary Authority (“CIMA” and such entities “Covered Entities”).  The DRLL does not, at present, apply to Covered Entities which are partnerships.  All directors of Covered Entities will need either to (i) register with CIMA; or (ii) apply to be licensed by CIMA in the case of corporate directors, or directors acting for 20 or more entities.

NFA Pursuing Net Capital Requirements for CPOs and CTAs.  The NFA is currently in the process of reviewing comments submitted on a proposal that would require CPOs and CTAs to maintain minimum amounts of capital and follow other customer protection measures. While the full scope of the proposed regulations has yet to be determined, likely changes to the regulatory regime include requirements that (1) CPOs and CTAs maintain a minimum amount of capital and file periodic reports with the NFA to demonstrate compliance; and (2) CPOs retain an independent third party to approve pool disbursements (i.e., a “gatekeeper” requirement).  For more information, please see our article and the NFA notice.

Amendments to FINRA Rule 5131.  FINRA has issued amendments to its Rule 5131, which bans certain practices related to allocating and distributing shares in initial public offerings.  Pursuant to the amendments, FINRA now may exempt a person from any provisions of Rule 5131 if, in light of the facts and circumstances, FINRA deems an exemption to be consistent with the protection of investors and the public interest.  As a result, FINRA members may apply for relief from Rule 5131.

Deferral of Tax on Incentive Fee Arrangements with Offshore Funds. On June 10, 2014, the IRS issued a ruling which may expand the ability of U.S. managers to offshore funds to defer performance-based compensation through nonstatutory stock options and stock-settled stock appreciation rights (“SAR”) in the offshore fund. Managers that want to explore the alternative fee arrangement should discuss the implications with their tax advisor and legal counsel.  More information can be found here.

Focus for Next Year:

Cybersecurity Focus.  Cybersecurity preparedness was a major focus of the SEC’s Office of Compliance Inspections and Examinations in 2014.  Awareness about the dangers posed by inadequate cybersecurity to capital markets is growing.  Both the SEC and the North American Securities Administrators Association (“NASAA”) put particular emphasis on the type of hardware and forms of communication that are used at firms.  Additionally, the SEC and NASAA recommend that firms should have a written policy regarding cybersecurity prevention and how to respond to an attack. Although 2014 is quickly coming to an end, cybersecurity preparedness will continue to be a concern for investment managers.  Managers should make sure they have sufficient policies in place regarding cybersecurity prevention and response.

SEC Charges Fraud and Breach of Fiduciary Duty for Improper Expense Sharing Among Funds. This year, the SEC charged a fund manager, Lincolnshire Management, with violating fraud and policy requirement provisions of the Investment Advisers Act, and breaching its fiduciary duty to a pair of private equity funds that it managed, by sharing portfolio company expenses in a way that benefited one fund over the other.  The factual situation was that each fund owned a separate portfolio company, but the manager integrated the portfolio companies and operated them as one.  However, an SEC investigation found that the expense allocation practices between the two funds occasionally caused one fund to pay more than its fair share of joint expenses that equally benefited both funds’ portfolio companies.  The SEC found that this preferential practice of commingling the funds’ assets violated the manager’s fiduciary duty to the funds.  In September, Lincolnshire Management settled the SEC’s charges for more than $2.3 million.  In light of this settlement, fund managers should be cognizant that fiduciary duties are owed separately to each fund, and that shared but uneven expense allocations may be recognized not only as a breach of fiduciary duties, but also as defrauding the investors that overpaid.

CFTC Regulation:

CFTC Grants Relief for General Solicitation.  After the JOBS Act relaxation of the general solicitation rules, fund managers exempt from CPO registration pursuant to CFTC Regulations 4.13(a)(3) or 4.7 were still prohibited from engaging in general solicitation with respect to the offering of private fund interests under Rule 506(c). However, a recent CFTC Letter 14-116 now allows such fund managers to engage in public offerings under Rule 506(c) without risking their exemptions, subject to the following conditions:

  1. The fund issuing interests must do so under Rule 506(c) or as a reseller under SEC Rule 144A.
  2. The fund manager must file a notice with the CFTC.
  3. The fund manager must represent that it meets all other requirements of the CFTC exemption on which it is relying.

Fund managers utilizing the CFTC Regulation 4.13(a)(3) exemption should take special note of the third requirement listed above. Even under the relief granted by CFTC Letter 14-116, such managers must refrain from marketing funds “as or in a vehicle for trading in the commodity futures or commodity options markets.”

SEC Guidance on Cross-Border Security-Based Swaps. Last year the CFTC issued guidance on cross-border swaps transactions. This guidance did not apply to security-based swaps, which are regulated instead by the SEC. Now the SEC has adopted final rules governing cross-border security-based swaps. This set of rules is the first in what is expected to be a series of SEC rules on these transactions, and it covers only a few select topics, including certain compliance-related rules and which entities must register as security-based swap dealers or security-based major swap participants. Although the rules technically went into effect on September 7, 2014, they will not have practical effect until the SEC adopts additional final rules on topics such as the actual registration process for security-based swap dealers and security-based major swap participants.

 CFTC Announces Streamlined Approach for Considering Requests for Relief From Registration for Delegating CPOs. In May, the CFTC issued a no-action letter adopting a streamlined approach for requesting CPO registration relief. The letter clarifies the conditions under which a CPO otherwise required to register (“Delegating CPO”) may delegate its CPO functions to another CPO (“Designated CPO”) and be relieved from a registration requirement under Section 4m(1) of the Commodity Exchange Act (the “CEA”). To request a relief through the streamlined approach, the Delegating CPO and its Designated CPO must meet a number of criteria. CPOs wishing to request relief under this streamlined approach should consult with their legal counsel.

Segregation of Initial Margin for Non-Cleared Swaps. This year, the CFTC adopted new rules relating to segregation of initial margin with respect to non-cleared swap transactions. Under these new rules, a swap dealer (“SD”) is required to segregate the initial margin of non-cleared swaps at a third-party custodian upon request from its swap counterparties (the “Segregation Rule”). The Segregation Rule requires the SD to notify counterparties of the right to require segregation of initial margin and to provide one or more non-affiliated custodians and price information for each. An SD will be required to obtain confirmation of notification and election prior to entering into any swap transaction, however a counterparty may change its election at any time.  If a counterparty elects segregation, the counterparty and SD must put in place a tri-party custodial agreement between the SD, counterparty and custodian to segregate the initial margin, which must include certain specific CFTC prescribed provisions. More information can be found here.

Compliance Calendar:

As you plan your regulatory compliance timeline for the coming months, please keep the following dates in mind:

Deadline Filing
December 12, 2014 IARD Preliminary Renewal Statement payments due (submit by December 9 to ensure processing by deadline)
December 27, 2014 Last day to submit form filings via IARD prior to year-end
December 31, 2014 Review AUM to determine 2015 Form PF filing requirement
January 1, 2015 FATCA cutoff date of the transitional period for entities with “pre-existing obligations”
January 30, 2015 “Annex IV” AIFMD Filing
February 16, 2015 Form 13F due
February 16, 2015 Annual Schedule 13G updates due
February 16, 2015 Annual Form 13H updates due
March 1, 2015 Deadline for Re-Certification of CFTC Exemptions
March 3, 2015 Quarterly Form PF Due for Larger Private Advisers (if applicable)
March 31, 2015 Annual ADV Amendments Due
April 30, 2015 Annual Form PF Due for Smaller Private Advisers (if applicable)
June 30, 2015 Extended FBAR deadline for certain individuals that have signature authority over, but no financial in, one or more foreign financial accounts
Periodic Filings Form D and Blue Sky filings should be current
Periodic Filings Fund managers should perfor “Bad Actor” Recertifications annually

Please feel free to reach out to us if you have any questions regarding your end-of-the-year compliance. We will you all the best as 2014 comes to a close.

Sincerely,

Karl Cole-Frieman, Bart Mallon & Lilly Palmer

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Cole-Frieman & Mallon LLP is a premier boutique investment management law firm, providing top-tier, responsive and cost-effective legal solutions for financial services matters. Headquartered in San Francisco, Cole-Frieman & Mallon LLP has an international practice that services both start-up investment managers as well as multi-billion dollar firms. The firm provides a full suite of legal services to the investment management community, including: hedge fund, private equity fund, and venture capital fund formation, adviser registration, counterparty documentation, SEC, CFTC, NFA and FINRA matters, seed deals, hedge fund due diligence, employment and compensation matters, and routine business matters. The firm also publishes the prominent Hedge Fund Law Blog which focuses on legal issues that impact the hedge fund community. For more information please visit us at: www.colefrieman.com.

Cole-Frieman & Mallon LLP

One Sansome Street, Suite 1895

San Francisco, CA  94104

     Karl Cole-Frieman                                   Bart Mallon                                             Lilly Palmer

karl@colefrieman.com                 bmallon@colefrieman.com                  lpalmer@colefrieman.com

415-762-2841                                    415-868-5345                                          415-762-2845

This newsletter is published as a source of information only for clients and friends of the firm and should not be construed as legal advice or opinion on any specific facts or circumstances.  The mailing of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Circular 230 Disclosure: Pursuant to regulations governing practice before the Internal Revenue Service, any tax advice contained herein is not intended or written to be used and cannot be used by a taxpayer for the purpose of avoiding tax penalties that may be imposed on the taxpayer.  Cole-Frieman & Mallon LLP is a California limited liability partnership and this publication may be considered attorney advertising in some jurisdictions.

Hedge Fund Events December 2014

The following are various hedge fund events happening this month. Please email us if you would like us to add your event to this list.

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Date: December 3, 2014

Date: December 3-4, 2014

  • Sponsor: RG & Associates
  • Event: Consortium West
  • Location: Los Angeles, CA

Date: December 3-4, 2014

Date: December 3-4, 2014

Date: December 4, 2014

Date: December 4, 2014

Date: December 4, 2014

Date: December 4, 2014

Date: December 4, 2014

Date: December 7-9, 2014

Date: December 7-9, 2014

Date: December 7-9, 2014

  • Sponsor: Opal Financial
  • Event: CLO Summit
  • Location: Dana Point, CA

Date: December 7-9, 2014

Date: December 8, 2014

Date: December 8, 2014

Date: December 8, 2014

Date: December 9, 2014

Date: Decemer 9, 2014

Date: December 9-10, 2014

Date: December 10, 2014

Date: December 10, 2014

Date: December 10, 2014

Date: December 11, 2014

Date: December 11, 2014

Date: December 11, 2014

Date: December 11, 2014

Date: December 11, 2014

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Cole-Frieman & Mallon provides legal services for hedge fund managers and other groups within the investment management industry.  Bart Mallon can be reached directly at 415-868-5345.

3rd Annual Alternative Investments Summit – November 20th

Please see below information on the Seattle Investment Association event on November 20th.

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The Seattle Alternative Investment Association, together with the CFA Society of Seattle, invites you to join us on November 20th, 2014 for the 3rd Annual Alternative Investments Summit.  Joshua Harris, Senior Managing Director and Co-Founder of Apollo Global Management will be sharing his views as to “Identifying Private Equity Opportunities in a Challenging Market.”  Mr. Harris is also the Managing Partner of the Philadelphia 76ers, and a member of the Federal Reserve Bank of New York Investors Advisory Committee on Financial Markets.

When: Thursday Eve November 20th, 2014
Registration and Networking: 5:30 to 6:15pm
Program: 6:15 – 7:30pm
Where: The Fairmont Olympic Hotel
411 University Street
Seattle, WA 98101

Special Room Rate for Summit Attendees: $209 per night

More details and registration for this event can be found on our website:
https://www.gosaia.com/events/

Would you like to become a Sponsor for this event?  Contact us: info@gosaia.com

This event is sure to sell out, so please take a moment and register!  If you are already an SAIA member; just click ‘register’ once you log in.

$30 for CFA Members
$75 for Non-Members

We look forward to seeing you on November 20th.

This Event is Co-Hosted with the CFA Society of Seattle.

A special thank you to our Platinum Sponsor, PricewaterhouseCoopers LLP. 

Additional Sponsors include UMB Fund Services, Precedent Consulting, Bank of America Merill Lynch, BlackRock, BNP Paribas and Deutsche Asset & Wealth Management. , 

Academic Sponsors include University of Washington Applied Mathematics and Pacific Lutheran University Science in Finance. 

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Cole-Frieman & Mallon LLP provides legal advice to the managed futures industry and works with FCMs, IBs, CPOs, and CTAs.  Bart Mallon can be reached directly at 415-868-5345.

Cole-Frieman & Mallon LLP 2014 Third Quarter Update

www.colefrieman.com

October 23, 2014

Clients and Friends:

It has already been a busy fourth quarter, but we would like to take this opportunity to provide you with a brief overview of some of the legal, business and regulatory updates from the third quarter.

Before we begin, Cole-Frieman & Mallon LLP is pleased to announce that Lilly A. Palmer has been promoted to partner, effective October 1, 2014. Lilly’s practice focuses on advising private funds and investment advisers in connection with their structuring, formation and ongoing operational needs, general securities laws matters, and regulatory and compliance issues. Please join us in congratulating Lilly.

JOBS Act Updates

  • CFTC Grants Relief for General Solicitation.  After the JOBS Act relaxation of the general solicitation rules, fund managers exempt from CPO registration pursuant to CFTC Regulations 4.13(a)(3) or 4.7 were still prohibited from engaging in general solicitation with respect to the offering of private fund interests under Rule 506(c). However, a recent CFTC Letter 14-116 now allows such fund managers to engage in public offerings under Rule 506(c) without risking their exemptions, subject to the following conditions:
    1. The fund issuing interests must do so under Rule 506(c) or as a reseller under SEC Rule 144A.
    2. The fund manager must file a notice with the CFTC.
    3. The fund manager must represent that it meets all other requirements of the CFTC exemption on which it is relying.

Fund managers utilizing the CFTC Regulation 4.13(a)(3) exemption should take special note of the third requirement listed above. Even under the relief granted by CFTC Letter 14-116, such managers must refrain from marketing funds “as or in a vehicle for trading in the commodity futures or commodity options markets.”

  • SEC Guidance on “Reasonable Steps” to Verify Accredited Investors. In order to engage in general solicitation under Rule 506(c), fund managers must, among other items, take “reasonable steps” to verify that each subscriber for fund interests meets the accredited investor standard. The SEC has previously described “safe harbors” with steps that, if followed, constitute sufficient evaluation of a prospective investor’s accredited investor status. The SEC has now released a new Q&A that addresses income and net worth calculations under the safe harbor rules, including (among others):
    • How to calculate income when the investor’s income is not reported in USD;
    • How to calculate net worth when an asset is held jointly with a person other than the prospective investor’s spouse;
    • How recent certain documentation must be (including tax documents) to demonstrate sufficient income or net worth; and
    • Alternatives to satisfy the “reasonable steps” requirement if the safe harbors are not available.
  • SIFMA Guidance on “Reasonable Steps” to Verify Accredited Investors. The Securities Industry and Financial Markets Association (“SIFMA”) also released its own guidance  on the “reasonable steps” required to verify accredited investor status. This guidance applies with respect to the written confirmation that third parties can provide to issuers under Rule 506(c)(2)(ii)(C) with respect to the accredited investor status of investors.

AIFMD Annex IV.  The Alternative Investment Fund Managers Directive (“AIFMD”) requires alternative investment fund managers (“AIFMs”) that manage or market alternative investment funds (“AIFs”) to EU investors to comply with heightened reporting and disclosure requirements. Notable is the imposition of a new Annex IV reporting requirement on AIFMs with assets under management of at least €100 million. Annex IV is a large complex filing, similar to the Form PF filed with the SEC, and it must be filed regularly with the National Competent Authority (“NCA”) of each EU Member State where AIFs are marketed. Annex IV is required on either a semiannual or quarterly basis, determined by the types of investments, the AIFM’s assets under management, and whether the AIFs are leveraged. Reports are due one month after the period end. This means AIFMs must make the first Annex IV filings no later than January 30, 2015.

Annex IV requires information such as the manager’s principal types of investments, the markets of which the AIFM is a member or on which it actively trades, and information on the AIF’s investment strategy, principal exposures and concentrations, risk profile, market and liquidity stress tests and leverage information. Although Annex IV and Form PF share almost 60% of data points, a number of differences prevent merely transferring Form PF data to Annex IV. Managers with Form PF infrastructure have a good starting point, but they will have to add classifications, and the data will need to be mapped and regrouped. Note also that the instructions for calculating assets under management are different from that of Form PF. Further, unlike Form PF, Annex IV requires the entire template to be populated notwithstanding size or strategy, and does not permit managers to list assumptions made on any questions or explain how a particular question may not be applicable.

The Annex IV must be filed in XML format with the NCA of each EU Member State where AIFs are marketed. Although the Annex IV template provided by the European Securities and Markets Authority has been adopted consistently by most EU Member States, managers should verify the format and filing requirements of each NCA.

“Bad Actor” Recertification Requirement. Last year the SEC adopted bad actor disqualification provisions for Rule 506 of Regulation D. These new provisions provide that an issuer is disqualified from relying on Rule 506(b) and 506(c) of a Regulation D offering if the issuer or any other “covered person” has a relevant disqualifying event. Under the rule, fund managers are required to determine whether they are subject to the bad actor disqualification any time they are offering or selling securities in reliance on Rule 506. The SEC issued a Q&A in December 2013 further clarifying, among other things, that “an issuer may reasonably rely on a covered person’s agreement to provide notice of a potential or actual bad actor triggering event pursuant to, for example, contractual covenants, bylaw requirements, or an undertaking in a questionnaire or certification. However, if an offering is continuous, delayed or long-lived, the issuer must update its factual inquiry periodically through bring-down of representations, questionnaires and certifications, negative consent letters, periodic re-checking of public databases, and other steps, depending on the circumstances.” Fund managers should consult with fund counsel to determine how frequently such an update is required. As a matter of practice, most fund managers should perform such an update at least annually.

Municipal Advisor Regulatory Updates. Municipal advisors generally include firms (including hedge fund managers and other asset managers) who provide advice to state and local governments and other borrowers involved in the issuance of municipal securities.  In general, this will include advisors to funds that contain any proceeds of municipal securities or municipal escrow investments. The Municipal Securities Rulemaking Board (“MSRB”) and the SEC have recently issued guidance, including both proposed and final rules, affecting registered municipal advisors. The rules involve the following topics, among others:

Examinations of Selected Newly Registered Municipal Advisors. The National Exam Program (“NEP”), a sub-organization of the SEC’s Office of Compliance Inspections and Examinations (“OCIE”), has launched a new initiative to examine selected Municipal Advisors for compliance with federal securities laws, including the SEC’s final Municipal Advisor rules and final MSRB rules “as and when those rules” are approved. If selected for examination, the selected Municipal Advisor will be notified and the NEP staff will review the Municipal Advisor in “one or more” of the following identified risk areas: registration, fiduciary duty, disclosure, fair dealing, supervision, books and records, and training and qualifications. The NEP will report the examination results, which may include “high-risk focus areas, industry trends, and significant issues” to the SEC.

SEC  Guidance on Proxy Voting. Two SEC divisions jointly published a new Q&A with guidance on proxy voting responsibilities for investment advisers and proxy advisory firms. For investment advisers, the Q&As include a number of examples of acceptable practices. These examples address compliance issues in areas such as meeting an investment adviser’s fiduciary duty in implementing proxy policies, entering into arrangements to assume some (but not all) proxy voting authority, and selecting and overseeing a proxy advisory firm. The Q&As also provide guidance to proxy advisory firms, including information on what proxy rules apply to proxy advisory firms, and how such firms can comply with common exemptions from certain information and filing requirements.

FATCA Implementing Legislation in Cayman & BVI. Many jurisdictions in which offshore funds are commonly domiciled, such as the Cayman Islands and the British Virgin Islands, have entered into intergovernmental agreements (“IGAs”) with the U.S. regarding the Foreign Account Tax Compliance Act (“FATCA”). Such IGAs generally provide that a foreign government office in the country of domicile will collect the information required by FATCA and transmit it to the IRS. However, until the jurisdiction passes domestic implementing legislation to enact its IGA, it is often unclear exactly what information must be provided, how it will be collected, and to which government entity it should be directed.

In early July, the Cayman Islands passed such implementing legislation as well as corresponding regulations that detail a fund’s obligations. The BVI regulators are expected to issue guidelines in October. Managers should remain in touch with both U.S. and offshore fund counsel regarding the regulatory landscape and to plan any changes to the fund’s offering documents, and/or any investor communications that may become necessary.

SEC Guidance on Cross-Border Security-Based Swaps. Last year the CFTC issued guidance on cross-border swaps transactions. This guidance did not apply to security-based swaps, which are regulated instead by the SEC. Now the SEC has adopted final rules governing cross-border security-based swaps. This set of rules is the first in what is expected to be a series of SEC rules on these transactions, and it covers only a few select topics, including certain compliance-related rules and which entities must register as security-based swap dealers or security-based major swap participants. Although the rules technically went into effect on September 7, 2014, they will not have practical effect until the SEC adopts additional final rules on topics such as the actual registration process for security-based swap dealers and security-based major swap participants.

SEC Charges Breach of Fiduciary Duty for Improper Expense Sharing Among Funds. The SEC charged a fund manager, Lincolnshire Management, with breaching its fiduciary duty to a pair of private equity funds that it managed by sharing portfolio company expenses in a way that benefited one fund over the other. The factual situation was that each fund owned a separate portfolio company, but the manager integrated the portfolio companies and operated them as one. However, an SEC investigation found that the expense allocation practices between the two funds occasionally caused one fund to pay more than its fair share of joint expenses that equally benefited both funds’ portfolio companies. The SEC found that this preferential practice of commingling the funds’ assets violated the manager’s fiduciary duty to the funds. Lincolnshire Management settled the SEC’s charges for more than $2.3 million.

CFTC and NFA Updates

  • Broker-Dealers and NFA Registration. Our firm recently received informal guidance in a series of conversations with the NFA and CFTC. The topic at issue was under what circumstances a broker-dealer that is registered with FINRA might also have to register as an Introducing Broker with the CFTC. We had a series of phone calls with the NFA and the CFTC, and while we were not provided definitive or formal guidance, we were told that a broker-dealer soliciting for a fund that is managed by a registered CPO may have to register with the NFA as an Introducing Broker. We suspect that many broker-dealers engage in this activity and may not realize that the funds for which they solicit are managed by a registered CPO, especially in cases where the fund manager manages multiple funds, some of which are operated under an exemption – such as the de minimis exemption from CPO registration – while others are operated as non-exempt commodity pools. Broker-dealers that provide services to funds operated by registered CPOs should consult with counsel regarding their obligation to register as an Introducing Broker.

Updates to Form CPO-PQR and Form CTA-PR. Registered CPOs and CTAs are required to submit quarterly filings to the NFA and CFTC via Form CPO-PQR or Form CTA-PR (respectively), which are submitted via the NFA’s online EasyFile system. The NFA recently made some changes to both forms, as described in a Notice to Members.  For CPO filers that submit via XML uploads, the XML schema files have changed, in part to accommodate changes to the box numbers on the Form CPO-PQR. (The Form CTA-PR still does not support XML capabilities.) A number of questions in both forms have been removed and replaced with different questions, with the goal of better quantifying the percentage of the firm’s AUM invested in futures and swaps. Finally, certain questions and help text boxes have been added or amended for the sake of clarity. All changes have gone into effect for the Q2 2014 forms.

COMPLIANCE CALENDAR

Deadline Description
October 30, 2014 Quarterly Account Statements (small CPOs and CPOs claiming the 4.7 exemption)
November 14, 2014 Form 13F filing (advisers managing $100 million in 13F Securities)
November 14, 2014 CTA-PR Filing with NFA
November 29, 2014 CPO-PQR Filing with NFA
December 12, 2014 IARD Preliminary Renewal Statement payments due (submit by December 9 to ensure processing by deadline)
December 27, 2014 Last day to submit form filings via IARD prior to year-end
December 31, 2014 Review AUM to determine 2015 Form PF filing requirement
January 30, 2015 “Annex IV” AIFMD Filing
Periodic Filings Form D and Blue Sky filings should be current

Please contact us with any questions or for assistance with any compliance, registration or planning issues on any of the above topics.

Sincerely,

Karl Cole-Frieman & Bart Mallon

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Cole-Frieman & Mallon LLP is a premier boutique investment management law firm, providing top-tier, responsive and cost-effective legal solutions for financial services matters. Headquartered in San Francisco, Cole-Frieman & Mallon LLP has an international practice that services both start-up investment managers as well as multi-billion dollar firms. The firm provides a full suite of legal services to the investment management community, including: hedge fund, private equity fund, and venture capital fund formation, adviser registration, counterparty documentation, SEC, CFTC, NFA and FINRA matters, seed deals, hedge fund due diligence, employment and compensation matters, and routine business matters. The firm also publishes the prominent Hedge Fund Law Blog which focuses on legal issues that impact the hedge fund community. For more information please visit us at: www.colefrieman.com.

Cole-Frieman & Mallon LLP

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San Francisco, CA  94104

 

    Karl Cole-Frieman                             Bart Mallon              

              karl@colefrieman.com               bmallon@colefrieman.com                

415-762-2841                              415-868-5345   

 

This newsletter is published as a source of information only for clients and friends of the firm and should not be construed as legal advice or opinion on any specific facts or circumstances.  The mailing of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Circular 230 Disclosure: Pursuant to regulations governing practice before the Internal Revenue Service, any tax advice contained herein is not intended or written to be used and cannot be used by a taxpayer for the purpose of avoiding tax penalties that may be imposed on the taxpayer.  Cole-Frieman & Mallon LLP is a California limited liability partnership and this publication may be considered attorney advertising in some jurisdictions.