Monthly Archives: July 2008

CFTC Release 5527-08

Release: 5527-08
For Release: July 31, 2008

Tampa Resident Edward J. Evors Ordered to Pay $904,000 in Restitution and Civil Monetary Penalties in CFTC Action Evors Permanently Prohibited from Engaging in Commodity Trading-Related Activities

Washington, DC – The U.S. Commodity Futures Trading Commission (CFTC) announced today that it obtained $452,000 in restitution and a $452,000 civil monetary penalty in a consent order against Edward J. Evors of Tampa, Florida. The order also permanently prohibits Evors, who has never been registered with the CFTC in any capacity, from engaging in any commodity trading-related activities.

The court also entered default judgment orders against two Nevada companies controlled by Evors, Bally Lines, Ltd. (Bally Lines) and GPS Fund, Ltd. (GPS), requiring them to disgorge funds received from Evors’ customers.

The orders were entered by the Honorable Richard A. Lazzara of the U.S. District Court for the Middle District of Florida. The consent order as to Evors resolves CFTC charges that he misappropriated customer funds that he solicited and received for the purpose of trading commodity futures contracts with Coyt E. Murray and Murray’s trading firm, Tech Traders, Inc. of North Carolina. Instead of investing customer funds with Tech Traders, Evors misappropriated the funds and concealed his theft by sending customers false account statements misrepresenting their investment. (See CFTC Press Release 5385-07, September 20, 2007.)

According to the CFTC’s September 2007 complaint, Evors instructed customers to send their funds to Bally Lines and GPS for placement with Tech Traders, but these firms actually provided no services and had no legitimate claim to any customer funds. As such, the complaint named Bally Lines and GPS as relief defendants and sought disgorgement from them.

Murray and Tech Traders were defendants in a previous CFTC enforcement action in which they and other defendants were ordered by the U.S. District Court of New Jersey to pay more than $30 million in sanctions (see CFTC Press Release 5357-07, July 23, 2007).

The following CFTC Division of Enforcement staff members are responsible for this matter: Elizabeth M. Streit, David A. Terrell, Joy H. McCormack, Scott R. Williamson, Rosemary Hollinger, and Richard Wagner.

ABL and distressed debt hedge funds are hot

For the past nine to twelve months a central question from anyone I meet is: with the markets the way they currently are – how is your business? The answer, maybe surprisingly, has been great. Each month we have more and more clients; each month there are new hedge fund managers who are eager to get their fund up and running. As the conventional wisdom goes, there is always a hot market somewhere and there will always be managers who think they have an edge and who can exploit that hot market. Which brings up the million dollar question – what is the hot market now?

Recently we’ve seen an increase in the amount of asset-based lending and distressed debt funds. With the market dynamics changing and the level of liquidity decreasing on a daily basis, a niche for smaller liquidity providers has arisen. These funds will focus on a variety of distressed debts and other types of assets – we’ve seen: real estate hedge funds focused the acquisition of land, single family homes, multi-family units and other retail properties; asset-based lending hedge funds; factoring hedge funds; distressed debt hedge funds which may buy and repackage certain types of debt including mortgages and credit card receivables. For a discussion on the structure of distressed debt hedge funds (and other hedge funds with hard to value assets) see structure of distressed debt hedge funds.

As noted in this week’s issue of Business Week, hedge funds are stepping up as buyers of pools of mortgages which the banks are selling at fire-sale prices. The article notes that oftentimes distressed debt hedge funds are leaner organizations which have more room to negotiate with borrower’s because of their cost basis in the loan. Because of this, and because their employees deal with far fewer borrowers on a daily and weekly basis, the fund’s are able to fashion more manageable terms to borrowers.

The Business Week article can be located at:

http://www.businessweek.com/ap/financialnews/D928D3480.htm

Thinking about Hedge Fund E&O insurance?

If so, you better be aware of any potential liabilities against your organization. In an action against a hedge fund insurance company, an insured investment adviser lost in a claim against the insurance company for $5 million in losses. The reason the investment adviser lost the claim is, centrally, because they should have revealed to the insurance company that they could be subject to future suit. The actual reason for the suit was because the investment adviser took on leverage in excess of the limits which were disclosed in the fund’s private placement memorandum. This situation again highlights the perils of hedge fund style drift and/or improper disclosure of the proposed investment program within the private placement memorandum.

The case is:MDL Capital Management v. Fed. Ins. Co., (W.D. Pa. July 25, 2008).

SEC cracks down on lax AML implementation

Yesterday the SEC ordered E*Trade to comply with the AML rules which requires brokers to know the identity of their clients. The order found that E*Trade did not verify the identities of 65,442 secondary accountholders. While this is a major breach of the AML rules, it also shows that the SEC is continuing to be vigilant in this time of economic uncertainty and market turmoil.

The full text can be found below and at: http://www.sec.gov/news/press/2008/2008-156.htm

SEC Orders E*Trade Brokerage Firms to Comply With Anti-Money Laundering Rule

FOR IMMEDIATE RELEASE
2008-156

Washington, D.C., July 30, 2008 — The Securities and Exchange Commission today charged E*Trade Clearing LLC and E*Trade Securities LLC (collectively, E*Trade) for failing to comply with an anti-money laundering rule that requires broker-dealers to verify the identities of their customers and document their procedures for doing so.


The SEC’s order finds that E*Trade failed to accurately document certain Customer Identification Program (CIP) practices and verify the identities of more than 65,000 of its customers as required by the USA PATRIOT Act and SEC rules. E*Trade agreed to settle the SEC’s enforcement action without admitting or denying the allegations, and will pay $1 million in financial penalties.

“E*Trade is one of the largest online brokerage firms in the world, and a compliance lapse of this type has the potential to undermine the nation’s anti-terrorism and anti-money laundering efforts,” said Linda Chatman Thomsen, Director of the SEC’s Division of Enforcement. “The penalty and undertakings imposed in today’s enforcement action reflect the critical nature of anti-money laundering rules, and will provide greater assurance that future compliance will be seriously and continuously monitored.”

Cheryl Scarboro, Associate Director in the SEC’s Division of Enforcement, added, “On several occasions, E*Trade personnel discovered and rediscovered its CIP deficiency. However, E*Trade did not initiate any corrective action until the problem resurfaced almost two years after the compliance deadline. E*Trade’s 20-month period of noncompliance clearly resulted from a disjunctive organizational structure and inadequate management of its CIP responsibilities.”

The SEC’s order finds that E*Trade established, documented and maintained a CIP that specified that it would verify all accountholders in a joint account. However, during a 20-month period, E*Trade failed to follow the verification procedures set forth in its CIP. The order finds that E*Trade did not verify the identities of secondary accountholders in newly opened joint accounts. Consequently, the order finds that E*Trade’s documented procedures differed materially from its actual procedures.

The SEC’s order specifically finds that, from October 2003 to June 2005, E*Trade did not verify the identities of 65,442 secondary accountholders in joint accounts as required by the CIP rule and its own procedures. The SEC’s order further finds that E*Trade’s compliance failure was systemic, resulting from lack of a cohesive organizational structure, lack of adequate management oversight, and miscommunications among personnel in several E*Trade business groups.

E*Trade consented to the issuance of an order instituting administrative and cease and desist proceedings for violations of Section 17(a) of the Securities Exchange Act of 1934 and Rule 17a-8 thereunder. In addition to the financial penalties, E*Trade agreed to a censure and to retain a qualified independent compliance consultant to verify the adequacy of its CIP rule compliance program.

In advance of settling this matter, E*Trade stated that it submitted the secondary accountholder information on joint accounts originally missed to its third-party vendor for verification. According to E*Trade, the verification process did not identify any joint accounts that should not have been opened.

CFTC Release 5525-08

Release: 5525-08

For Release: July 30, 2008

California Resident Gilbert Philip Castillo, Jr. to Pay More Than $272,000 to Resolve CFTC Anti-Fraud Action

Washington, DC – The U.S. Commodity Futures Trading Commission (CFTC) announced today that Philip Castillo, Jr. of Walnut Creek, California, will pay $92,474.60 in restitution and a $180,000 civil monetary penalty to resolve CFTC charges that he committed fraud in connection with the trading of S&P 500 commodity futures and option contracts through three Internet websites.

The consent order, entered by the Honorable Thelton E. Henderson, U.S. District Court Judge for the Northern District of California, also permanently prohibits Castillo from engaging in any business activities related to commodity futures trading.

The order arises from a 2006 CFTC complaint against Castillo (see CFTC Press Release 5212-06). The complaint charged that Castillo and his company, Castle Enterprise Corporation (Castle) d/b/a WallStreetWar.com, CastilloResearch.com and Never-Lose.com (collectively, the Wall Street War websites), operated Internet websites from February 1999 through mid-2005 that made fraudulent representations to the general public regarding Castillo’s trading successes and the accuracy, profitability, and track record of Castle’s various commodity advisory services. During this time, Castle was purportedly acting as a Commodity Trading Advisor (CTA) without being registered with the CFTC, as required.

The order finds that Castillo violated the anti-fraud provisions of the Commodity Exchange Act by making false material representations through the Wall Street War websites. These representations included touting that the Wall Street War Advisory Service is “[p]roven to be the most accurate and profitable advisory available!”, and claiming that the system had a track record of 90 to 96 percent profitability, with “tremendous returns in different market conditions for six years!” that ranged “from 302% to 447%.” In fact, many of the advisory services offered to the public by Castillo and Castle never operated and clients were abandoned after purchasing trading systems or courses.

The order also finds Castillo liable as a controlling person of Castle and for being an unregistered Associated Person (AP) of Castle, which was operating as an unregistered CTA.

Previously, on February 5, 2007, the court entered a final default judgment against Castle, ordering it to pay $814,858.89 in disgorgement to be used for restitution to victims of its fraud and a $480,000 civil monetary penalty (see CFTC Press Release 5291-07).

The following CFTC Division of Enforcement staff members are responsible for this case: Timothy J. Mulreany, David Reed, Michael Amakor, Paul Hayeck, and Joan Manley.

SEC issues Interpretive Letter on Solicitors

Analysis to be forthcoming…

See http://www.sec.gov/divisions/investment/noaction/2008/mayerbrown072808-206.htm

The Text:

Investment Advisers Act of 1940 — Rule 206(4)-3
Mayer Brown LLP — Interpretative Letter

July 28, 2008

RESPONSE OF THE OFFICE OF CHIEF COUNSEL
DIVISION OF INVESTMENT MANAGEMENT
Our Ref. No. 20087251738
Mayer Brown LLP
File No. 132-3

This letter replaces the letter that we issued to you on July 15, 2008 (“Original Letter”).1 We are replacing the Original Letter to make minor, non-substantive changes to it.2 This letter does not, however, alter the relief granted in the Original Letter. This letter should be deemed to be issued as of the date of the Original Letter, July 15, 2008.

By letter dated July 7, 2008, you request that we clarify that Rule 206(4)-3 under the Investment Advisers Act of 1940 (“Advisers Act”) does not apply to an investment adviser’s cash payment to a person solely to compensate that person for soliciting investors to invest in an investment pool3 managed by the adviser.

You state that several staff members of the Securities and Exchange Commission (“Commission”) have orally expressed the view that Rule 206(4)-3 does not apply to the payment of a cash fee by an investment adviser to a person solely to compensate that person for soliciting investors to invest in an investment pool managed by the adviser.4 You believe that these statements are consistent with statements recently made by the U.S. Court of Appeals for the District of Columbia Circuit in Goldstein, et al. v. Securities and Exchange Commission (“Goldstein“).5 You express concern, however, that certain SEC staff no-action letters6 suggest that Rule 206(4)-3 applies to cash payments by registered advisers to persons who solicit investors to invest in investment pools. Consequently, you request that we clarify that Rule 206(4)-3 does not apply to cash payments by a registered investment adviser to a person solely to compensate that person for soliciting investors to invest in an investment pool managed by the adviser.

DISCUSSION

Section 206(4) of the Advisers Act makes it unlawful for any investment adviser to engage in any act, practice or course of business that is fraudulent, deceptive or manipulative, and authorizes the Commission by rules and regulations to define and prescribe means reasonably designed to prevent such acts, practices and courses of business. Rule 206(4)-3 under the Advisers Act makes it unlawful for any investment adviser that is required to be registered under Section 203 of the Advisers Act (for purposes of this letter, a “registered investment adviser”) to pay a cash fee, directly or indirectly, to a solicitor7 “with respect to solicitation activities” unless the payments are made in compliance with conditions specified in the Rule. The Commission intended for Rule 206(4)-3 to address the conflicts of interest inherent in certain cash solicitation arrangements.8

We believe that Rule 206(4)-3 generally does not apply to a registered investment adviser’s cash payment to a person solely to compensate that person for soliciting investors or prospective investors for, or referring investors or prospective investors to, an investment pool managed by the adviser. While the Rule literally could apply to such payments, we believe that the Commission did not intend for the Rule to apply to those payments, for a number of reasons. First, neither the Proposing Release nor the Adopting Release contains any statement directly or indirectly suggesting that the Rule would apply to investment advisers’ cash payments to others solely to compensate them for soliciting investors for investment pools managed by the advisers. While not dispositive of the issue, we believe that the absence of any such statements by the Commission suggests that it did not intend that the Rule should apply to such payments. Second, the Rule is designed so as to clearly apply to solicitations and referrals in which the solicited or referred persons might ultimately enter into investment advisory contracts with the investment adviser,9 yet investors in investment pools (as such) do not typically enter into investment advisory contracts with the investment advisers of the pools. Third, the Rule’s use of the terms “client” and “prospective client,” rather than “investor” or “prospective investor,” also strongly suggests that the Rule was intended to apply to solicitations and referrals in which the solicited or referred persons might ultimately enter into investment advisory contracts with the investment adviser.

Furthermore, the Goldstein decision supports the conclusion that the Rule generally does not apply to advisers’ cash payments to others solely to compensate them for soliciting investors to invest in investment pools managed by the advisers. In Goldstein, the court indicated that, for purposes of Section 206 of the Advisers Act, investors in a pooled investment vehicle are not “clients” of the investment adviser of the pool. Similarly, we believe that the references to “client” and “prospective client” in Rule 206(4)-3 under the Advisers Act should not be interpreted to include investors in investment pools or prospective investors in investment pools.

Whether a registered investment adviser’s cash payment to a person is being made solely to compensate that person for soliciting investors or prospective investors for, or referring investors or prospective investors to, an investment pool managed by the adviser will depend upon all of the facts and circumstances of the particular case. In our view, the most pertinent facts and circumstances generally will be those relating to the nature of the arrangement between the soliciting/referring person and the investment adviser, the nature of the relationship between the investment adviser and the solicited/referred person, and the purpose of the adviser’s cash payment to the soliciting/referring person.

For example, the Rule would not appear to apply to a registered adviser’s cash payment to a person for referring other persons to the adviser where the adviser manages only investment pools and is not seeking to enter into investment advisory relationships with other persons, and the adviser’s cash payment, under the adviser’s arrangement with the referring person, compensates the referring person solely for referring the other persons to the adviser as investors or as prospective investors in one or more of the investment pools managed by the adviser.10 In contrast, the Rule would appear to apply if the adviser manages or seeks to manage investment pools and individual accounts, is seeking to enter into investment advisory relationships with other persons, and the adviser’s cash payment, under the adviser’s arrangement with the referring person, compensates the referring person for referring the other persons as prospective advisory clients. Again, whether the Rule applies or not would depend upon all of the facts and circumstances of the particular situation.

Even if Rule 206(4)-3 does not apply to a particular situation, the soliciting/referring person may generally be required by Section 206 of the Act to disclose to the investor or prospective investor material facts relating to conflicts of interest. Depending upon the facts and circumstances, a soliciting/referring person may be “advising others … as to the advisability of investing in … securities” within the meaning of Section 202(a)(11) of the Advisers Act,11 and thus may be an investment adviser subject to Section 206 of the Advisers Act. As interpreted by the courts and the Commission, Section 206 requires investment advisers to disclose to their clients and prospective clients material facts relating to conflicts of interest.12

To the extent that the view we express in this letter is inconsistent or conflicts with views that we have expressed previously, see, e.g., note 6, supra, our view today supersedes them.13

Douglas Scheidt
Associate Director and Chief Counsel

Endnotes


Changing the name of a previous entity (track record portability)

Hedge fund track record portability is always a big issue. A manager will want to bring his track record with him and some people believe that the track record of a “fund” is better than the track record of a managed account. In furtherance of this, some managers may be tempted to use an old management entity as a fund by changing the name of the entity (and perhaps even the structure – i.e. LLC to LP). In this way the “fund” gets to keep a certain track record and also maintain that it has “been in business” for longer than it has.

There are a couple of pitfalls to this idea. First, in these instances the original entity was often not audited which means that when the fund is eventually audited the manager is going to have to pay a larger audit bill so that the auditor can get comfortable with the previous year’s activities (unless there was an earlier audit). Second, there is the risk that the company has some outstanding liabilities (or the potential, based on the managers past action, for a liability to arise based on previous conduct). The risk of these outstanding liabilities will probably need to be disclosed in the fund’s offering documents.

Whether or not this is even is necessary is debatable. Some people view that having one track record is better than having two track records. However, it seems to me like there is no real reason to go through the hassle and disclosure items. Generally, investors are going to look at past performance. While it is better to have a track record for the fund that is being sold, if that track record comes with a very long disclaimer attached, it would seem to me like this would defeat the purpose. In essence, the manager is trying to hide what must be disclaimed – that this “fund” really doesn’t have this long track record. I think that at the beginning of the relationship with an investors, whether individual or institutional, the manager is going to want to be as forthright as possible. In this case I believe it means that the manager should not change the name, should create a new entity, and explain that the track record represents a program that was run by the manager and is the same program which will be run by the fund.

Cayman notches 10,000th hedge fund

In a press release statement from Walkers, the Cayman law firm announces that the Cayman Islands have over 10,000 registered hedge funds as of the end of June 2008. Please see release below:

Cayman Islands Sets Milestone with 10,000 Registered Funds
28-Jul-2008

Recent second quarter figures from the Cayman Islands Monetary Authority (CIMA), have confirmed the achievement of a key milestone by the Cayman Islands financial services industry, with over 10,000 investment funds currently registered in the jurisdiction.

At the end of June 2008 there were 10,037 funds on CIMA’s register, compared with 9,681 at the end of the previous quarter and 8,972 at the mid point of 2007. The current annual growth rate of 12% in net new hedge funds, which takes cancellations into account, is particularly striking in the context of the deterioration in global markets following the sub-prime meltdown and associated credit crunch.

“This is yet another round of impressive statistics from CIMA,” said Mark Lewis, senior investment funds partner at Walkers. “The 10,000 barrier has been breached as hedge funds continue to be formed in the Cayman Islands, which remains the clear jurisdiction of choice for investment managers and their advisers around the world.

“Business remains active and the volatility which has impacted world markets as a result of the credit crisis, and the relatively weak valuations of many securities, has provided hedge fund managers with great opportunities to create alpha after a number of years of relatively flat returns”, Lewis added. “Hedge funds have also provided the market with much needed liquidity, which has been especially beneficial amid the current tight lending conditions.”

The continued growth in net hedge fund registrations is also partly explained by the absence of a significant spike in fund terminations. While there has certainly been a slight increase in terminations over the past 12 months, funds are not being closed at an unprecedented rate.

“There have been some forced closures, but in the cases where funds are struggling, the managers we work with are being pro-active by placing hard-to-value securities in side pockets, suspending redemptions and imposing gates. Such measures may enable a fund in distress to ride out the storm or to wind down its affairs in an orderly manner,” said Walkers investment funds partner Nick Rogers. “In the Cayman Islands the key drivers behind the actions being taken are the need to treat all investors equitably and to act in the best interests of the fund, and this provides a firm foundation for protecting market participants and preserving value.”

Among the new funds that have been established in the Cayman Islands, strategies such as distressed debt and special opportunities presented by the widespread markdown in asset prices have continued to feature strongly.

“There has also been significant ongoing activity in emerging markets and commodities,” Rogers added. “The convergence of these two hot asset classes has been particularly interesting.”

There are a number of factors behind the Cayman Islands’ attractiveness as a domicile for hedge funds, in particular the stable economic and political climate, the close relationship between the public and private sector and the presence of the world’s leading professional services firms. The regulatory regime in the Cayman Islands has been recognised internationally, notably by the International Monetary Fund (IMF) and the Caribbean Financial Action Task Force (CFATF) for its high standards. In the area of transparency and “know-your-client” regulations, these standards surpass many of the world’s top international financial centres.

Statement by Chairman Cox refers to hedge funds

On July 24, 2008 SEC Chairman Christopher Cox testified before the Congressional Committee on Financial Services concerning the reform of the financial regulatory system.

His statement:

Given these business, accounting, and regulatory differences, imposing the existing commercial bank regulatory regime on investment banks would be a mistake. It is conceivable that Congress could create a framework for investment banking that would intentionally discourage risk taking, reduce leverage, and restrict lines of business, but this would fundamentally alter the role that investment banks play in the capital formation that has fueled economic growth and innovation domestically and abroad. Such a course could be justified, if at all, only on the grounds that, like commercial banks which have long enjoyed explicit access to government-provided liquidity, investment banks’ activities must be controlled in order to protect the taxpayer.

This, however, makes clear that the more fundamental question is not whether investment banks should be regulated like commercial banks, but whether they should have permanent access to government-provided backstop liquidity. And if Congress were to answer that question in the affirmative, it is difficult to imagine that our markets would not produce new entities, perhaps hedge funds or other non-regulated firms, to take over the higher-risk capital markets functions of the formerly robust investment banks. That, in turn, would simply raise today’s questions anew.

http://www.sec.gov/news/testimony/2008/ts071508cc.htm

Cox testifys to Congress: discusses hedge funds

Jul. 24, 2008

Testimony Concerning Reform of the Financial Regulatory System, Before the Committee on Financial Services, U.S. House of Representatives

Given these business, accounting, and regulatory differences, imposing the existing commercial bank regulatory regime on investment banks would be a mistake. It is conceivable that Congress could create a framework for investment banking that would intentionally discourage risk taking, reduce leverage, and restrict lines of business, but this would fundamentally alter the role that investment banks play in the capital formation that has fueled economic growth and innovation domestically and abroad. Such a course could be justified, if at all, only on the grounds that, like commercial banks which have long enjoyed explicit access to government-provided liquidity, investment banks’ activities must be controlled in order to protect the taxpayer.

This, however, makes clear that the more fundamental question is not whether investment banks should be regulated like commercial banks, but whether they should have permanent access to government-provided backstop liquidity. And if Congress were to answer that question in the affirmative, it is difficult to imagine that our markets would not produce new entities, perhaps hedge funds or other non-regulated firms, to take over the higher-risk capital markets functions of the formerly robust investment banks. That, in turn, would simply raise today’s questions anew.