The law firm of Stewart Kessel LLP recently conducted a survey of its hedge fund clients to determine what the most popular hedge fund strategies, fee and liquidity provisions and fund structures are for start-up managers. According to the study, approximately 50% of the firm’s clients followed an ‘equity or equity related’ strategy, of which a third were focused on U.S. equities, with the remainder …
Virginia Proposes New IA Registration Exemption for Private Fund Advisers
On February 14, 2012, the Virginia Division of Securities and Retail Franchising (the “Securities Division”) proposed the adoption of a new rule exempting certain managers to certain private funds based on the North American Securities Administrators Association (“NASAA”) model exemption for investment advisers solely to private funds. The new rule would exempt advisers to private funds excluded from the definition of investment company under Section …
Private Offerings in New York: How an “Integration Clause” bars an Investor from Relying on the Offerors’ Representations
By Kaiser Wahab, Counsel Anyone in business should be careful to note whether their contracts contain “integration clauses.” A so called integration clause makes the contract “king” in terms of the promises and representations of a party to a transaction. In other words, if there is an integration clause in a contract that says “X”, even if one party may have orally maintained “Y” throughout …
NYC Changes Stance on UBT Attributable to Hedge Fund Managers
Certain New York City based hedge fund management companies have recently been audited with respect to how they account for certain expenses under the City’s Unincorporated Business Tax (“UBT”). Since a statutory amendment to the UBT law was passed over 15 years ago, hedge fund management companies located in NYC have bifurcated the structure of their operations by creating who advisory entities for the fund. …
Commodity Mutual Funds Required to Register with CFTC
On February 9, 2012, the CFTC adopted final rules that, among other changes, amend Rule 4.5 which had provided relief to registered investment companies (e.g. mutual funds) from registration as commodity pool operators. Rule 4.5 as amended imposes significant new conditions on claiming the exclusion. These changes will result in the need for CPO registration in situations where an investment company’s investment program has a …
CFTC Rescinds and Modifies Certain Exemptions to Registration for CTOs and CTAs
On February 9, 2012, the CFTC adopted final rules regarding changes to Part 4 of the Commission’s regulations regarding registration and compliance obligations for CPOs and CTAs. The new rules: rescind registration exemptions available for commodity pool operators (“CPOs”) offering commodity pools to sophisticated and creditworthy investors under CFTC regulation 4.13(a)(4); rescind relief from the certification requirement for annual reports providing certain pools offered only …
New Small Offering Exemption Proposal Gains Momentum
Spurred on by calls from the President to jump start small business, Congress has, in the past several months, taken up a various pieces of legislation aimed at facilitating small company financing. One such piece of legislation is H.R. 1070 which, if enacted, would allow small companies to raise up to $50 million in a twelve month period without undergoing the burdensome process of an …
SEC Brings Naked Short Selling Action Against Brothers
January 31, 2012, the SEC charged against two brothers for engaging in naked short selling in violation of Rule 203(b)(1) and (3) of Regulation SHO. While short selling is legal, sellers must locate shares to borrow before selling them short and must deliver borrowed shares before a specified date. Jeff Wolfson, and his brother Robert, allegedly generated $17 million in ill gotten gains from naked …
Massachusettes Adopts New Private Fund Adviser Registration Rules
On January 12, 2012, the Massachusetts Securities Division adopted new rules for the registration of investment advisers solely to 3(c)(7), venture capital or 3(c)(1) funds, where all investors in the 3(c)(1) fund are “qualified clients”. The rules replace the existing exemption which allowed advisers to “institutional buyers” including private funds, such as hedge funds, in which each investor is accredited and has invested at least …