Monthly Archives: December 2008

NFA Makes Two Separate Announcements on New Forex Rules

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(www.hedgefundlawblog.com) Today the NFA made two separate announcements regarding proposed new forex rules.  The announcements follow a series of similar announcements last week regarding new forex rules (see NFA Continues to Pursue Forex Regulation for Current Forex Dealer Members).  The first announcement dealt with additions to Compliance Rule 2-36 and related Interpretive Notice Changes.  The second announcement dealt with a completely new forex Compliance Rule 2-43.

NFA Proposes Addition to Compliance Rules 2-36 and Related Interpretive Notices – this announcement contained a hodge-podge of different rules the NFA staff felt needed to be addressed.  The announcement centrally focuses on (i) requirement that forex hypothetical results be subject to the anti-fraud provisions of NFA Compliance Rule 2-29(c),* (ii) require FDMs to have an Associated Person file the required weekly reports, (iii) require FDMs to adopt written policies regarding the calculation of rollover interest charges and payments, and (iv) prohibits FDMs from trading a customer’s account when they are a counterparty to the trade.  Continue reading →

Hedge Fund Series LLC

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The Series LLC

Most hedge funds are structured as either limited partnerships or as limited liability companies (LLCs).  Some hedge funds, however, are structured as series limited liability companies.  The series limited liability company is a relatively new statutorily created entity.  The series LLC is one entity with a group of series each of which is bankruptcy remote from each other series.  This means that the assets of one group or series of assets are protected in the event another group or series of assets becomes subject to suit or other action.  This article discusses the primary uses for the Series LLC in the hedge fund industry, the advantages and disadvantages of the series LLC and other issues involved with the formation of a hedge fund as a series LLC. Continue reading →

Forex Managers and Managed Forex Funds

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Many forex managers use a product called a managed forex fund, which is the equivalent to a mutual fund hedge fund.  In a “managed forex fund,” the manager will invest the assets under the POA with the forex dealer member in the managed fund.  The a trader or traders for the forex dealer member will then manage the pool of assets.  Typically the forex dealer member will receive both a forex management fee as well as a performance allocation.  Many managers will then charge a management fee and a performance allocation (or only one or the other) to the underlying clients. Continue reading →

Wisconsin Based Hedge Funds – Wisconsin Investment Advisory Rules

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One of the key issues which hedge fund managers will need to determine early in the hedge fund formation process is whether the management company will need to be registered as an investment adviser with the state securities commission (or potentially with the SEC).  Generally the lawyer advising the management company will survey the state laws to determine whether or not registration is necessary.  While the lawyer will look directly to the state statutes through some sort of online legal database such as Lexis Nexis (to ensure that the most current and up to date information is provided to the client), the hedge fund manager can also check with his state securities commission to see if registration is required.  Sometimes states, such as Wisconsin, will include their registration information on their website.  The notice below is typical of such a practice. Continue reading →

New Hedge Fund Regulation: Guidance From Former SEC Commissioner Should be Followed

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In the conversations the hedge fund community will be having with Congress and the regulators in the coming months regarding increased regulation, we should look to shared answers to the issues which need to be addressed.  In this vein, I have been researching the speeches of prominent SEC personel.  I have just recently reviewed a speech by former Commissioner Paul Atkins regarding regulations and how regulations impact the investment management community.  Perhaps surprising to some, the former Commissioner showed reasonably thinking with regard to increased regulation.

The speech, reprinted in its entirety below, was given in the wake of the proposed adoption of two rule changes back in December of 2006.  The first proposed rule change was to amend the Investment Advisers Act so that it was clear that hedge fund managers had an anti-fraud duty to the investors in their hedge funds as well as the hedge funds themselves.  The second proposed rule was the “accredited natural person” rule which would effectively change the potential make up of hedge funds by requiring a different net worth threshold for investors in hedge funds.  There were a significant amount of comments to the proposed rules which stated that it would be a bad idea to raise the net worth requirements for hedge fund investors.  Neither of the proposed rules have been adopted and it is unlikely that they will be, at least in the near future.  Continue reading →

Hedge Fund Fraud – Prominent Hedge Fund Attorney is Wrongdoer

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Usually our discussion of hedge fund frauds revolves around unscrupulous promoters who engage in some sort of fraudulent behavior against hedge fund investors.  Most of the time the fraud is based on some sort of ponzi scheme.  However, in the case reprinted below, the fraud was actually perpetuated against many hedge funds, including some funds with a significant amount of assets under management.  Even more incredible is that the fraud was perpetuated by a hedge fund attorney with a very impressive background.  While this is slightly different than hedge fund affinity fraud, it does show that frauds can be found on all scales and that hedge fund due diligence is important for both investors and hedge funds.  It is important, maybe now more so than ever, that hedge funds conduct proper due diligence on their counterparties when engaging in private placements and off-exchange transactions.  Please contact us if you have any questions on hedge fund due diligence. Continue reading →

Hedge Fund Due Diligence – Affinity Fraud Alert

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In these uncertain and volatile markets hedge fund due diligence is more important than ever.  We’ve discussed how hedge fund due diligence is likely to change, but it is also important to note that hedge fund frauds can be detected through simple due diligence procedures.  In this vein, the NFA has released a notice and an alert on “affinity fraud.”  The NFA alert points out that there are many ways a potential hedge fund investor can protect themselves from a fraud by conducting basic research on the investment advisor, commodity pool operator, or forex manager.  If you are a hedge fund investor and would like a referral to a due diligence firm, please contact us.  Continue reading →

Hedge Fund Consultant Article Updated

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Just a quick note to the community that we’ve updated our post on hedge fund consultants to include a case study.  A reminder to all hedge fund service providers that we are actively seeking articles to help enhance our website.  We are particularly interested in articles on hedge fund accounting and administration including articles on FAS 157.  We are also interested in hedge fund link exchanges – please contact us to discuss.

Future Hedge Fund Regulation – An Open Letter on Collaboration

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As we all know, the investment management and hedge fund industries will be undergoing a sea change as Congress and the SEC and other government agencies respond to many events which have completely affected and disjointed our capital markets and economy.  I believe that it is up to the hedge fund community to show leadership in these times and help to create a solution to the issues which affect both managers and investors – namely, probable future hedge fund regulations.

In the coming weeks I will be promulgating proposals for the hedge fund community (and the SEC and Congress) to consider during the discussion of the best way to impose future regulations.  Senatory Grassley has specifically stated he plans to renew hedge fund registration requirements.  As recent congressional testimony indicates, the hedge fund community is open to reasonable regulations.  The issues faced by the community (and investors) cannot be solved solely by the SEC, Congress or the hedge fund community disparately, but by all of these groups working together.

I recently read a speech, posted below, by Linda Chatman Thomsen, the SEC’s Director of the Division of Enforcement.  This speech provides a very inspirational (and ideal) view of the SEC which makes me proud in many respects (especially when I realize that the SEC is there to protect people like my parents and grandparents).  I believe that by working with the SEC toward mutual goals the hedge fund industry will be able to (i) build a solid foundation for future growth and (ii) provide the investing public in general with a positive image of the industry.    Continue reading →

Master Feeder Organizational Chart

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For hedge fund managers which are establishing a hedge fund for the first time, it is often easier to understand the dynamics between the different entities through an organizational chart.  This is especially true for an offshore master feeder hedge fund which has more moving parts and also has (generally) a different fee structure based on the characteristics of the hedge fund manager’s trading program and the expected tax attributes of the underlying investments.  Additionally, the tax residence of the offshore investors must be considered in many circumstances. Continue reading →