Monthly Archives: October 2009

Data Warehouse Implementation | Hedge Fund IT Solutions

Deloitte & Netik Conference – Asset Management: Managing and scaling your reference, market and portfolio data

This article is part of our guide to Hedge Fund Business & Technical Issues.

On October 29, 2009 I attended an event at San Francisco’s Omni Hotel put on by Deloitte and Netik.  The event featured a panel discussion with the following panelists:

  • Brian Lott – Executive Vice President, Operations, Netik
  • Michael Smith – Senior Manager, Deloitte & Touche LLP
  • Joseph Clark – Market Data Manager, MSCI Barra
  • James Wu – Product Manager, MSCI Barra
  • Moderated by Ray Iler – Northwest Pacific Hedge Fund Leader, Deloitte & Touche LLP

The discussion was quite interesting and was most appropriate for hedge fund managers who have a need for transparency into their positions and who also need the ability to quickly manipulate large amounts of data.  Coming into this discussion I was not aware of any of the issues involved with data warehouse implementation.  I am sure that much of this discussion went over my head, but I did the best I could to summarize the points made by the various panelists.  As always, any errors or confusion found below is likely attributable to me solely.  [HFLB note: I have not checked with any of the panelists regarding my summary of their comments.]


Data Warehouse Hedge Fund Discussion

[Moderator questions in italics.]

Ray Iler started the panel discussion by stating that investors and regulators want more information, generally for risk management purposes.

Michael Smith – pending investment adviser registration will mean that managers need to make sure their data systems are ready to handle SEC requests for information, SEC audits and most importantly investor requests for data.  Data warehouses help asset managers to reconcile their various data inputs (especially with regard to multi-custodial relationships).

Brian Lott – regulation is going to drive what “transparency” means.  Old systems were not designed for the way that business is now done – data warehouses now allow managers to bring all information into a central repository and helps the manager to have a holistic view of their portfolios.  These data warehouses can also help ease the regulatory burden by speeding up the time it takes to search and categorize data.

James Wu – data warehouses give managers the ability to see and analyze portfolio and asset level risk characteristics.  These solutions allow managers to run robust reports and ad hoc queries fast.

Ray Iler asked how data warehouses can help managers such as fund of funds or hybrid funds.  [Or something to that effect.]

Brian Lott – legacy apps have not evolved quickly over time.  Data warehousing goes beyond position level down to the data below.  Prior to data warehouses there were systems which were modified to try to function like current data warehouses.  The current data warehouse system is equivalent to a hub and spoke system where the data warehouse is the hub and the various data inputs (information or fees) are the spokes.  The advantage of this hub and spoke system is the ability for managers to centralize data and then be able to analyze it.

Michael Smith – it is one thing for a manager to understand the economics of an investment at the beginning of the deal, then then understanding what is going on with that deal on an ongoing basis becomes harder.  Data warehouses allow managers with a common platform to understand their deal on a continuous basis.  One application for managers is that they could understand how their portfolio composition would change based on an investment.  Such information helps a manager to understand the investment on a continual basis.

Joseph (Joe) Clark – another thing about clients without a data warehouse is that they have a hard time trying to find the data.  A data warehouse makes finding certain data much easier.

James Wu – one of the great things about a data warehouse is that allows you to have more spokes – legacy systems which have been modified (shoehorned) to try to meet current demands often are not able to seemlessly integrate new feeds.

Michael Smith – [made a statement about Microsoft sharepoint and other solutions which make technology easier.]  Managers moving into new asset classes (say a private equity fund moving into real estate investments) should think about how cash flows and reporting are going to change from current systems.  How will this change the formatting?

Joe Clark – data from different vendors and from groups in different jurisidictions do present an issue for some managers.

Ray Iler – that is good point – what about licensing issues for the feeds into the data warehouse?

Joe Clark – It is an interesting issue that centers on the question of who owns the underlying data.  Questions arise as to how many deriviations of the data are needed before the feed provider no longer “owns” it.  It will really depend on each individual relationship.

Brian Lott – it is not standardized from vendor to vendor and the issue needs to be negotiated at each data provider.

Ray Iler – what are the costs and ROI by putting a data warehouse in place?

Brian Lott – the question becomes, how do I pitch this to the board?  It is often hard to quantify the return but recent market events have shown why it is so important for managers to understand total counterparty risk.  For instance, after the Lehman collapse a client had to go through 72 different relationships with Lehman to understand what the total exposure was – this took 3 months to complete.  Generally not until a catastropic event do you see the value at the most basic level like this.

Ray Iler – although we understand that each project is unique, are there some common implementation costs?

Brian Lott – on the data warehouse implementation, for a medium buy-side manager, you are looking at 3 months depending on complexity.  Costs will be all over the board and will depend on the licenses involved and the services requested.  It could be anywhere from $200,000 to $2 million.  On the data servicing side, it will really depend on the size and complexity of the services requested.  There is a big difference in costs with a firm with 2,000 positions versus a firm with 2 million positions.

Michael Smith – we have advised on system implementation for managers with a few hundered million to half a trillion.  Most of the time these can be straightforward implementations but sometimes they cannot and that will affect cost.  The point of the systems are to minimize trade failures, make sure accounting is properly completed, 13Fs and 13Gs are not filed incorrectly and that understanding the various risks of the business.  These factors (along with reputation risk if something goes wrong) are weighed against the cost of implementation – for each manager it will be different in terms of ROI.

James Wu – after Lehman and AIG groups don’t realize how much exposure they have to a counterparty that is failing or about to fail.  Having that information is crucial for managers.

Ray Iler – yes, investors want to see that managers have thought about these issues and right now, in this tough fundraising environment, managers have to do what investors want.  If investors want full transparency, managers need to provide it.  Now, what about in-house technology solutions versus outsourcing.  Can managers do both?

Brian Lott – it is not a one size fits all solution.  It will depend on the risk profile of the manager.  What will happen many times is a sort of hybrid between the in-house team and our outsourced solution.  While the whole data warehouse will be a good solution, the in-house compliance manager or risk manager will usually want to have some kind of final sign off and control over the system.  Accordingly, many firms have their in-house team working directly with the data warehouse in a number of ways.

Joe Clark – the hybrid system is part of the philosophy that the system should match a manager’s specific needs.

[Some thoughts from James Wu and Michael Smith which I did not catch.]

Brian Lott – because each solution is tailored to each manager it is very important that stystem integration firms and the managers understand the scope of the work to be performed.  To do this the manager really needs to understand what the end goal is.  From the end goal the provider will be able to provide dates, an implementation plan, a description of the scope of work to be performed as well as a timeline of the phases of the project implementation.  It is very important for the manager and the provider to define the exact scope of the project.

At this point the floor was opened to questions.

Question from audience

  • What are some of the general needs of some of these managers (such as insurance companies, pension funds and family office managers)?
  • In light of the recent Galleon hedge fund insider trading case, do data warehouse solutions work to help  compliance personnel search emails to detect possible illegal activity.

Networking After Discussion

After the event we had the opportunity to do some networking.  I had to run fairly quickly, but I did have a chance to talk briefly with the following people:

  • Maital S. Rasmussen who works with small and start up hedge fund managers on their marketing materials and presentations.  Specifically I talked with Maital about presentation coaching which is becoming more important for managers who are presenting in front of institutional investors.
  • Erin Brodie who is the Senior Business Development Manager of Global Accounts at Advent Software.
  • Mason Snyder of Catalina Partners, which providers business risk advisory for institutional investments.
  • Maria Hall of M.D. Hall & Company Inc., a hedge fund audit firm.


Bart Mallon, Esq. of Cole-Frieman & Mallon LLP runs Hedge Fund Law Blog and can be reached directly at 415-868-5345.

Update on H.R. 3818 | Hedge Fund Registration Bill

As has been reported by a number of groups the Private Fund Investment Advisors Act of 2009 was approved by the House Financial Services Committee by a vote of 67-1.  The proposed bill underwent a number of significant changes during the committee meeting.  The attached document shows (in redline format) the changes which were made to the bill during the committee meeting.  I compiled this “new” text of H.R. 3818 by making the changes as introduced by various committee members, see markups.

The major changes include:

  • a provision which exempts managers from registration if the managers only provide investment advice to SBICs (introduced by Mrs. Capito and Mr. Paulsen)
  • a provision which exempts managers from registration if the managers have less than $150 million of AUM (introduced by Mr. Peters, Mr. Meeks, and Mr. Garrett)
  • a provision which directs the SEC to take into account certain factors when promulgating regulations which apply to advisers to “mid-sized” private funds (introduced by Mr. Peters, Mr. Meeks, and Mr. Garrett)

Please also see Doug Cornelius’ article on the changes to the bill.

Other related articles:

Bart Mallon, Esq. of Cole-Frieman & Mallon LLP runs Hedge Fund Law Blog and can be reached directly at 415-868-5345.

Hedge Fund Business & Technical Issues


In addition to providing startup and established managers with information on various hedge fund laws and regulations, we have also provided a number of articles on the general business issues that hedge fund managers need to address.  These articles cover a number of areas and many of the articles below are from service providers to hedge funds.  Please feel free to suggest other areas for us to explore in future articles.

Hedge Fund Technology, IT and Internet Issues

  • IT Issues for Hedge Fund Managers – this article, written by a technology solutions firm, details some of the IT solutions which are available to hedge fund managers who will need to register after the new hedge fund registration rules are adopted.  These issues also apply for currently registered (SEC or state) hedge fund managers as well.
  • Data Warehouse Implementation for Hedge Funds – a summary of a panel discussion on the reasons managers should think about implementing a data warehouse system.
  • Hedge Fund Hotels – hedge fund hotels offer managers a whole suite of hosted services for turnkey back office implementation.
  • Hedge Fund Domain Names – this article discusses domain names for hedge fund managers.
  • Hedge Fund Managers and Blogs – this article discusses whether hedge fund managers can run a blog.

Hedge Fund Tax Issues

  • Proposition Q and Hedge Funds – hedge fund managers located in San Francisco should be aware of Proposition Q (a special San Francisco payroll tax) and how it will affect them and their top earners.

General Business Issues

  • Hedge Fund Employment Law Issues – this article, forthcoming, will discuss the issues that managers need to consider when they bring on employees for the first time.  While each state will have different laws and regulations which the manager will need to follow, there are general items which a manager should be prepared for including establishing a structure to pay state and federal income taxes for employees.
  • IP Licensing Agreements – this article, forthcoming, will discuss the business and legal issues involved when managers license their intellectual property to a hedge fund.
  • Hedge Fund Management Company Insurance – this article discusses the costs of insurance for hedge fund management companies.
  • Hedge Funds and Rehypothication – this article discusses rehypothication as it relates to hedge funds.
  • Prime Brokers, Margin Lock-ups and Hedge Funds – this article discusses prime broker margin lock-ups and some of the issues which managers should understand.
  • Hedge Fund Operational Issues and Failures – this article discusses a press release about a white paper released from a hedge fund due diligence firm.  The firm examines the reason why many hedge fund managers fail.
  • Hedge Fund Operations During a Pandemic – examines the issues which face managers because of the H1N1 virus.
  • Agreed Upon Procedures – hedge fund managers sometimes will engage auditors to provide “agreed upon procedures” especially with regard to their Level III assets.  This article, written by a hedge fund due diligence firm, provides some thoughts on how investor may view these procedures in the future.  Managers should be aware of how investors (or potential investors) might view these types of engagements.
  • Women and Hedge Funds – this article explores the world and opportunities for women in the hedge fund industry.
  • Naming Your Hedge Fund – this article discusses common hedge fund naming conventions.
  • Hedge Fund Best Practices – discussion of the President’s Working Group on Financial Markets (PWG) report on hedge fund best practices.
  • SIPC Customer Asset Protection – statements by FINRA and the SEC on asset protection for customers.

Bart Mallon, Esq. of Cole-Frieman & Mallon LLP runs Hedge Fund Law Blog and can be reached directly at 415-868-5345.

CTA Advertising and Marketing Issues to Consider

By Bart Mallon, Esq. (

Marketing for Small CTAs

For small commodity trading advisory (CTA) firms, marketing and advertising the expertise of the principals is a central way to gain new clients and make more money.  This overview is for the CTA Expo 2009 program entitled Marketing for Small CTAs. The program was sponsored by Traderview and featured Frank Pusateri of Adirondack Portfolios as well as Bucky Isaacson of Future Funding Consultants. While I was unable to catch this beginning session of the CTA expo 2009, I was able to catch the last ten to fifteen minutes of the session, which I found to be particularly helpful (for small and start up CTAs) as well as interesting.  It seemed like many of the participants were engaged as well.

General Background on CTA Advertising

CTAs are allowed to market and advertise their services.  Unlike hedge fund managers, who are prohibited from marketing pursuant to Regulation D and other federal and state regulations, CTA advertising has the potential to reach a large portion of the investing population – CTAs can and should take advantage of such marketing rules.  [Note: we will be providing information at a later date regarding some of the legal and compliance issues that CTAs should be aware of when developing a marketing program.]

A good marketing program will be multi-faceted and will include a website (including potentially a blog), direct email campaigns, listings in CTA databases, and networking events among other items.  The rest of this article will focus on CTA websites.

CTA Websites and Visitor Information

One way for CTAs to advertise is to put up a good and effective website advertising the manager’s services.  While it will take the manager some time to create the initial content and layout of the website, there is relatively little additional time needed to maintain the webiste.  Many of the updating functions can be outsourced as well, so the manager can concentrate on trading.

Frank noted that he had one CTA ask him what he thought about their website which cost $50,000. Frank said that it looked good but that the CTA firm did not ask for the visitor’s name, address or telephone number and that there was no place on the website to collect that information. This represents a lost opportunity because, presumably, visitors come to your website to find out more information about you – you in essence know that the people visiting your site are potential investors. Having visitors provide you with their basic contact information is equivalent to a warm lead and if you don’t even have a way to collect this then you are wasting opportunities.

Question Period

Frank was able to answer questions from the audience. One participant asked if Frank could name a CTA firm which did a good job at marketing themselves. He mentioned that he thought Northfield Trading did a pretty good job with much of their literature and marketing materials.

Many of the same issues, which were touched on during my brief time at this session, are discussed in later sessions in greater depth. We will examine these in turn.

The next article discusses Compliance in a Changing Environment which is sponsored by Woodfield Fund Administration and which featured Kate Dressel of Strategic Compliance Solutions as well as Patty Cushing of the National Futures Association.


This article was first printed on the CTA Expo Blog.  Mr. Mallon also runs the hedge fund law blog and is committed to providing useful and easy to understand information for CTAs and CPOs which can be found in our CTA and CPO Registration and Compliance Guide. For more information on CTA registration or compliance services please contact Bart Mallon, Esq. at 415-868-5345.

House Committee Votes for Hedge Fund Registration

Bart Mallon, Esq. (

Private Equity Funds Not Excluded

Today the House Financial Services Committee voted to require hedge fund managers to register with the Securities and Exchange Commission.  While private equity firms are also required to register under the proposed bill, managers to venture capital funds are excluded from this registration requirement.

The bill will next be presented to the House of Representatives and if it passes there it will move onto the Senate and eventually to President Obama to sign into law.  The name of the bill is the Private Fund Investment Advisers Registration Act of 2009.  For the full text please see H.R. 3818.


For Immediate Release: October 27, 2009

Committee Approves Private Advisor Registration Bill with Bipartisan Support

Washington, DC – Today, the House Financial Services Committee passed H.R. 3818, the Private Fund Investment Advisers Registration Act, introduced by Congressman Paul E. Kanjorski (D-PA), Chairman of the House Financial Services Subcommittee on Capital Markets, Insurance, and Government Sponsored Enterprises.  The Committee passed H.R. 3818 with extensive bipartisan support by a vote of 67-1.  Tomorrow, the Committee is expected to vote on Chairman Kanjorski’s H.R. 3817, the Investor Protection Act and H.R. 3890, the Accountability and Transparency in Rating Agencies Act.

“The Private Fund Investment Advisers Registration Act, which passed today with wide-ranging bipartisanship support, will force many more financial providers to register with the Securities and Exchange Commission,” said Chairman Kanjorski.  “The past year has shown that the deregulation or in many cases, lack of regulation, of financial firms is an idea of the past.  Advisors to financial firms must receive government oversight and we must understand the assets of financial firms, including for hedge funds, private equity firms, and other private pools of capital.  Under this legislation, private investment funds would become subject to more scrutiny by the SEC and take more responsibility for their actions.  I look forward to moving this legislation to the House floor for a vote.”

A summary of H.R. 3818 follows:

  • Everyone Registers. Sunlight is the best disinfectant. By mandating the registration of private advisers to private pools of capital regulators will better understand exactly how those entities operate and whether their actions pose a threat to the financial system as a whole.
  • Better Regulatory Information. New recordkeeping and disclosure requirements for private advisers will give regulators the information needed to evaluate both individual firms and entire market segments that have until this time largely escaped any meaningful regulation, without posing undue burdens on those industries.
  • Level the Playing Field. The advisers to hedge funds, private equity firms, single-family offices, and other private pools of capital will have to obey some basic ground rules in order to continue to play in our capital markets. Regulators will have authority to examine the records of these previously secretive investment advisers.


Please contact us if you have any questions or would like to start a hedge fund. Other related hedge fund law articles include:

Bart Mallon, Esq. of  Cole-Frieman & Mallon LLP runs Hedge Fund Law Blog and can be reached directly at 415-868-5345.

H.R. 3818 | Hedge Fund Registration

Bart Mallon, Esq. (

Private Fund Investment Advisers Registration Act of 2009 (text of act)

Below is the final text of the hedge fund registration bill as passed by the House Financial Services Commission.



1st Session

H. R. 3818

To amend the Investment Advisers Act of 1940 to require advisers of certain unregistered investment companies to register with and provide information to the Securities and Exchange Commission, and for other purposes.


October 15, 2009

Mr. KANJORSKI introduced the following bill; which was referred to the Committee on Financial Services


To amend the Investment Advisers Act of 1940 to require advisers of certain unregistered investment companies to register with and provide information to the Securities and Exchange Commission, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


This Act may be cited as the `Private Fund Investment Advisers Registration Act of 2009′.


Section 202(a) of the Investment Advisers Act of 1934 (15 U.S.C. 80b-2(a)) is amended by adding at the end the following new paragraphs:

`(29) PRIVATE FUND- The term `private fund’ means an investment fund that–

`(A) would be an investment company under section 3(a) of the Investment Company Act of 1940 (15 U.S.C. 80a-3(a)) but for the exception provided from that definition by either section 3(c)(1) or section 3(c)(7) of such Act; and

`(B) either–

`(i) is organized or otherwise created under the laws of the United States or of a State; or

`(ii) has 10 percent or more of its outstanding securities by value owned by United States persons.

`(30) FOREIGN PRIVATE FUND ADVISER- The term `foreign private fund adviser’ means an investment adviser who–

`(A) has no place of business in the United States;

`(B) during the preceding 12 months has had–

`(i) fewer than 15 clients in the United States; and

`(ii) assets under management attributable to clients in the United States of less than $25,000,000, or such higher amount as the Commission may, by rule, deem appropriate in the public interest or for the protection of investors; and

`(C) neither holds itself out generally to the public in the United States as an investment adviser, nor acts as an investment adviser to any investment company registered under the Investment Company Act of 1940, or a company which has elected to be a business development company pursuant to section 54 of the Investment Company Act of 1940 (15 U.S.C. 80a-53) and has not withdrawn such election.’.


Section 203(b) of the Investment Advisers Act of 1940 (15 U.S.C. 80b-3(b)) is amended–

(1) in paragraph (1), by inserting `, except an investment adviser who acts as an investment adviser to any private fund,’ after `any investment adviser’;

(2) by amending paragraph (3) to read as follows:

`(3) any investment adviser that is a foreign private fund adviser;’;

(3) in paragraph (5), by striking `or’ at the end; and

(4) in paragraph (6)–

(A) in subparagraph (A), by striking `or’;

(B) in subparagraph (B), by striking the period at the end and adding `; or’; and

(C) by adding at the end the following new subparagraph:

`(C) a private fund.’.


Section 204 of the Investment Advisers Act of 1940 (15 U.S.C. 80b-4) is amended–

(1) by redesignating subsections (b) and (c) as subsections (c) and (d), respectively; and

(2) by inserting after subsection (a) the following new subsection:

`(b) Records and Reports of Private Funds-

`(1) IN GENERAL- The Commission is authorized to require any investment adviser registered under this Act to maintain such records of and file with the Commission such reports regarding private funds advised by the investment adviser as are necessary or appropriate in the public interest and for the protection of investors or for the assessment of systemic risk as the Commission determines in consultation with the Board of Governors of the Federal Reserve System. The Commission is authorized to provide or make available to the Board of Governors of the Federal Reserve System, and to any other entity that the Commission identifies as having systemic risk responsibility, those reports or records or the information contained therein. The records and reports of any private fund, to which any such investment adviser provides investment advice, maintained or filed by an investment adviser registered under this Act, shall be deemed to be the records and reports of the investment adviser.

`(2) REQUIRED INFORMATION- The records and reports required to be maintained or filed with the Commission under this subsection shall include, for each private fund advised by the investment adviser–

`(A) the amount of assets under management;

`(B) the use of leverage (including off-balance sheet leverage);

`(C) counterparty credit risk exposures;

`(D) trading and investment positions;

`(E) trading practices; and

`(F) such other information as the Commission, in consultation with the Board of Governors of the Federal Reserve System, determines necessary or appropriate in the public interest and for the protection of investors or for the assessment of systemic risk.

`(3) OPTIONAL INFORMATION- The Commission may require the reporting of such additional information from private fund advisers as the Commission determines necessary. In making such determination, the Commission may set different reporting requirements for different classes of private fund advisers, based on the particular types or sizes of private funds advised by such advisers.

`(4) MAINTENANCE OF RECORDS- An investment adviser registered under this Act is required to maintain and keep such records of private funds advised by the investment adviser for such period or periods as the Commission, by rule or regulation, may prescribe as necessary or appropriate in the public interest and for the protection of investors or for the assessment of systemic risk.


`(A) PERIODIC AND SPECIAL EXAMINATIONS- All records of a private fund maintained by an investment adviser registered under this Act shall be subject at any time and from time to time to such periodic, special, and other examinations by the Commission, or any member or representative thereof, as the Commission may prescribe.

`(B) AVAILABILITY OF RECORDS- An investment adviser registered under this Act shall make available to the Commission or its representatives any copies or extracts from such records as may be prepared without undue effort, expense, or delay as the Commission or its representatives may reasonably request.

`(6) INFORMATION SHARING- The Commission shall make available to the Board of Governors of the Federal Reserve System, and to any other entity that the Commission identifies as having systemic risk responsibility, copies of all reports, documents, records, and information filed with or provided to the Commission by an investment adviser under this subsection as the Board, or such other entity, may consider necessary for the purpose of assessing the systemic risk of a private fund. All such reports, documents, records, and information obtained by the Board, or such other entity, from the Commission under this subsection shall be kept confidential.

`(7) DISCLOSURES OF CERTAIN PRIVATE FUND INFORMATION- An investment adviser registered under this Act shall provide such reports, records, and other documents to investors, prospective investors, counterparties, and creditors, of any private fund advised by the investment adviser as the Commission, by rule or regulation, may prescribe as necessary or appropriate in the public interest and for the protection of investors or for the assessment of systemic risk.

`(8) CONFIDENTIALITY OF REPORTS- Notwithstanding any other provision of law, the Commission shall not be compelled to disclose any report or information contained therein required to be filed with the Commission under this subsection. Nothing in this paragraph shall authorize the Commission to withhold information from the Congress or prevent the Commission from complying with a request for information from any other Federal department or agency or any self-regulatory organization requesting the report or information for purposes within the scope of its jurisdiction, or complying with an order of a court of the United States in an action brought by the United States or the Commission. For purposes of section 552 of title 5, United States Code, this paragraph shall be considered a statute described in subsection (b)(3)(B) of such section.’.


Section 210 of the Investment Advisers Act of 1940 (15 U.S.C. 80b-10) is amended by striking subsection (c).


Section 203 of the Investment Advisers Act of 1940 (15 U.S.C. 80b-3) is amended by adding at the end the following new subsection:

`(l) Exemption of and Reporting by Venture Capital Fund Advisers- The Commission shall identify and define the term `venture capital fund’ and shall provide an adviser to such a fund an exemption from the registration requirements under this section. The Commission shall require such advisers to maintain such records and provide to the Commission such annual or other reports as the Commission determines necessary or appropriate in the public interest or for the protection of investors.’.


Section 211 of the Investment Advisers Act of 1940 (15 U.S.C. 80b-11) is amended–

(1) by amending subsection (a) to read as follows:

`(a) The Commission shall have authority from time to time to make, issue, amend, and rescind such rules and regulations and such orders as are necessary or appropriate to the exercise of the functions and powers conferred upon the Commission elsewhere in this title, including rules and regulations defining technical, trade, and other terms used in this title. For the purposes of its rules and regulations, the Commission may–

`(1) classify persons and matters within its jurisdiction based upon, but not limited to–

`(A) size;

`(B) scope;

`(C) business model;

`(D) compensation scheme; or

`(E) potential to create or increase systemic risk;

`(2) prescribe different requirements for different classes of persons or matters; and

`(3) ascribe different meanings to terms (including the term `client’) used in different sections of this title as the Commission determines necessary to effect the purposes of this title.’; and

(2) by adding at the end the following new subsection:

`(e) The Commission and the Commodity Futures Trading Commission shall, after consultation with the Board of Governors of the Federal Reserve System, within 6 months after the date of enactment of the Private Fund Investment Advisers Registration Act of 2009, jointly promulgate rules to establish the form and content of the reports required to be filed with the Commission under sections 203(i) and 204(b) and with the Commodity Futures Trading Commission by investment advisers that are registered both under the Investment Advisers Act of 1940 (15 U.S.C. 80b-1 et seq.) and the Commodity Exchange Act (7 U.S.C. 1 et seq.).’.


Bart Mallon, Esq. of Cole-Frieman & Mallon LLP runs hedge fund law blog and has written most all of the articles which appear on this website.  Mr. Mallon’s legal practice is devoted to helping emerging and start up hedge fund managers successfully launch a hedge fund.  Cole-Frieman & Mallon LLP helps hedge fund managers to register as investment advisors with the SEC or the state securities divisions.  If you are a hedge fund manager who is looking to start a hedge fund or register as an investment advisor, please contact us or call Mr. Mallon directly at 415-868-5345.

Hedge Fund Audit Firms and Agreed Upon Procedures

Hedge Fund Due Diligence Firm Discusses “Agreed Upon Procedures”

We’ve published a number of thoughtful pieces on this blog from Chris Addy, president and CEO of Castle Hall Alternatives (see, for example, article on Hedge Fund Operational Issues and Failures).  Today we are publishing a piece by Chris which discusses hard to value hedge fund assets (so called Level III assets).  In certain situations hedge fund audit firms will be engaged to perform an “Agreed Upon Procedures” review of the pricing of these assets.  As discussed in the article below, agreed upon procedures engagements do not provide hedge fund investors with a great deal of comfort with regard to the pricing of these assets.  It is unclear whether in the future investors will push back with regard to such engagements and require more robust pricing audits.  The problem with more robust procedures, obviously, is increased cost (because of increased liability for the audit firms).

Managers who are engaging audit firms pursuant to agreed upon procedures should be aware that they may face tougher questions from investors going forward.


Agreed Upon Procedures

A number of our recent posts have focused on the challenges of the hedge fund administrator‘s role in relation to security valuation.  We will, of course, return to this topic – but, in the meantime, wanted to focus on some of the alternatives to administrator pricing.

One of the more common comments from today’s administrators is that, while an admin may be able to price Level I and Level II securities, they do not necessarily have information to price Level III instruments.  (To recap, the US accounting standard FAS 157 divides portfolios into three levels, being Level I, liquid instruments readily priced from a pricing feed (typically exchange traded); Level II, instruments priced using inputs from “comparable” securities (essentially mark to model, albeit with mainstream models); and Level III, everything else.)

This leaves investors with a challenge – if administrators cannot price Level III instruments, who can? Moreover, to repeat one of our frequent comments, it is self evident that if a hedge fund manager wishes to deliberately mismark securities, they would most likely misprice a Level III instrument.  It is, of course, very hard to fake the price of IBM common stock, but much easier to mismark emerging market private loans.

Two of the most common tools available to hedge fund managers looking for third party oversight over pricing for Level III instruments – assuming the administrator has washed their hands of the problem – are third party pricing agents and auditor agreed upon procedures, or “AUP”.  We will return to the strengths and weaknesses of third party pricing agents in a subsequent post, but wanted to focus this discussion on AUP.

In an Agreed Upon Procedures engagement, the auditor completes specific procedures which have been dictated by the client.  The procedures are specified and the auditor then prepares a report outlining the findings of that specific work.

We have two comments here: the first is to take a high level view as to the adequacy of these procedures, and the second is to dig a little more deeply into the actual audit guidance that covers this type of work.

Our first comment is, unfortunately, an Emporer Has No Clothes observation.  The significant majority of hedge fund AUP engagements we have seen require the auditor to test a fund’s pricing on a quarterly basis.  This usually involves (i) obtaining a portfolio list from the investment manager and (ii) testing the pricing support for those positions.

There are, however, generally two snags.  Firstly, many AUP only test a sample of prices, not the whole portfolio.  Sample testing clearly provides much less assurance than a price review of all positions: the administrator, for example, is usually expected to price the entire book (would any investor accept a NAV which has been priced on a “sample” basis???)

The bigger problem, however, is the type of testing completed by the auditor.  In way, way too many cases, the auditor tests security prices back to the manager’s own pricing support and makes no attempt to obtain independent pricing information.

This type of work is, clearly, somewhere between minimal and absolutely no value for investors.  If the auditor receives a spreadsheet from the manager showing the matrix of broker quotes received, how does the auditor know that the manager has not adjusted that spreadsheet to exclude quotes which were uncomfortably low?  Even more importantly, if all the auditor does is to check prices back to pieces of paper in the manager’s own pricing file, how does the auditor know that those pieces of paper are genuine?  As we have said before, and will keep on saying, it only costs $500 to buy a copy of Adobe Photoshop if you are of a mind to alter documentation.

When discussing this type of work, the manager typically notes that, if the auditor was to complete a full, independent pricing review, it would be too costly and too time consuming to be practical on a quarterly basis.  A full, GAAP audit review is, of course, performed at year end – this does include independent pricing (although – investor fyi – auditors will still only sample test many portfolios.)

While these are fair points, it remains the case that this type of AUP provides minimal protection against pricing fraud.  In the meantime, the manager gets the marketing benefit of being able to claim enhanced scrutiny and oversight from a Big 4 firm each quarter.

Which leads to our second point.  Why would an auditor accept to complete agreed upon procedures when any reasonable accountant would rapidly conclude that the typical scope of these AUP provide pretty much nil controls assurance?  Why does the auditor not insist that, if their name is to be associated to this work, then the procedures must be meaningful and sufficient to meet an actual control standard?

To this point, the actual audit standard applicable to AUP is available here.  The standard states:

An agreed-upon procedures engagement is one in which a practitioner is engaged by a client to issue a report of findings based on specific procedures performed on subject matter. The client engages the practitioner to assist specified parties in evaluating subject matter or an assertion as a result of a need or needs of the specified parties. Because the specified parties require that findings be independently derived, the services of a practitioner are obtained to perform procedures and report his or her findings. The specified parties and the practitioner agree upon the procedures to be performed by the practitioner that the specified parties believe are appropriate. Because the needs of the specified parties may vary widely, the nature, timing, and extent of the agreed upon procedures may vary as well; consequently, the specified parties assume responsibility for the sufficiency of the procedures since they best understand their own needs. In an engagement performed under this section, the practitioner does not perform an examination or a review, as discussed in section 101, and does not provide an opinion or negative assurance. Instead, the practitioner’s report on agreed-upon procedures should be in the form of procedures and findings.

In practice, this all gets horribly circular.  Per the standard, a client requests an auditor to complete AUP to assist “specified parties” to “evaluate subject matter or an assertion”.  In our case, the assertion would be “are hard to value securities valued correctly at quarter end.”

However, the specified party is usually the manager itself, making the client and specified party the same person.  The particular trick applied, in many cases, is for the auditor to seek to prevent the investor from actually seeing the AUP in the first place!  However, if the investor is to have access to the AUP, the auditor universally requires the investor to sign a Catch 22 document which requires the investor to acknowledge that the AUP are “sufficient for their needs”.  So, even if the investor believes that the AUP are not “sufficient for their needs” – which is hardly a long stretch – the investor has to sign that the procedures are sufficient if they are to even see the auditor’s work.  With this magic piece of paper, the auditor has met its requirements and can sleep easy.  Meanwhile, the auditor will send a bill to – guess who – the fund, meaning that investors have, once more, had to foot the bill.

As always, Caveat Emptor.

Hedge Fund Operational Due Diligence


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Bart Mallon, Esq. of Cole-Frieman & Mallon LLP runs Hedge Fund Law Blog and can be reached directly at 415-868-5345.

Proposition Q and Hedge Funds

San Francisco’s Proposition Q and its Impact on Hedge Fund Managers

Proposition Q Passes in a Landslide

On November 4, 2008, San Francisco voters approved Proposition Q modifying the city’s Payroll Expense Tax by a resounding 74% of the vote. This little noticed proposition, which went into effect on January 1, 2009, will impact many hedge fund managers and other businesses in San Francisco.

San Francisco’s Payroll Expense Tax

Companies with one or more employees within the City and County of San Francisco and a payroll greater than $250,000 are required to pay a Payroll Expense Tax to the city equal to 1.5 percent of their taxable payroll. In 2007, the Payroll Tax generated over $350 million in revenues for San Francisco. Prior to Proposition Q, the law was unclear about whether compensation for services related to “pass through” entities such as partnerships and limited liability companies was considered “compensation paid to employees” and therefore subject to the Payroll Expense Tax. In reality, for most hedge fund managers in San Francisco, this meant that the distributions made to owners of the company or partnership were not subject to the tax.

Effect of Proposition Q

Proposition Q clarified that such distributions for payments to partners/owners for work done in San Francisco must be included in the calculation of the Payroll Expense Tax. For example, if a hedge fund manager earns $5 million per year, pays $250,000 in salaries to its employees, and distributes $4 million in profits to its partners or owners, prior to Proposition Q only the $250,000 paid to the employees was definitely subject to the Payroll Expense Tax. Beginning in 2009, however, the entire $4 million paid to the partners or owners, will also be subject to the Payroll Expense Tax.

Lack of Guidance and Recommendations

Proposition Q garnered scant attention in the news media, and will no doubt catch many hedge fund managers by surprise this year. The website of the San Francisco Office of the Treasurer and Tax Collector provides almost no information for business owners about the proposition. We advise that hedge fund managers keep Proposition Q and the Payroll Expense Tax in mind when making employment and compensation decisions. In particular, managers should keep in mind the safe harbor provision when determining the owner’s own W2 compensation, as well as the compensation of the top 25% of employees. Managers should also consult with their tax advisors to anticipate the impact of Proposition Q on their 2009 Payroll Expense Taxes, and determine whether they need to adjust their pre-payments of those taxes.

To find out more about Proposition Q and other topics relating to compensation and employment law issues for hedge fund managers, please contact Karl Cole-Frieman of Cole-Frieman & Mallon LLP ( at 415-352-2300.


Bart Mallon, Esq. of Cole-Frieman & Mallon LLP runs Hedge Fund Law Blog and can be reached directly at 415-868-5345.

CFTC Head Addresses Futures Industry in Chicago

Futures Industry Association Annual Expo

CFTC Chairman Gary Gensler today spoke at the Futures Industry Association’s annual expo in Chicago. While most of the Chairman’s speech  focused on the proposed regulation of the OTC derivatives markets, Chairman Gensler also discussed the recent SEC and CFTC Harmonization report. As you can imagine, Gensler is for increasing regulation of the entire financial markets. Below I have included some of the more interested quotes which can be found in the text of the speech text of Chairman Gensler’s speech.

The CTA Expo was going on as well during this time and I will be writing more articles on the speakers at this conference over the next few days.


Both of the committees’ bills include three important elements of regulatory reform: First, they require swap dealers and major swap participants to register and come under comprehensive regulation. This includes capital standards, margin requirements, business conduct standards and recordkeeping and reporting requirements. Second, the bills require that dealers and major swap participants bring their clearable swaps into central clearinghouses. Third, they require dealers and major swap participants to use transparent trading venues for their clearable swaps.

The challenge remains, though, determining which transactions should be covered by these reforms. I believe that we must bring as many transactions under the regulatory umbrella as possible. This will best accomplish the two principal goals of reform: lowering risk to the American public and promoting transparency of the markets.


To promote market transparency, all standardized OTC products should be moved onto regulated exchanges or trade execution facilities. This is the best way to reduce information deficits for participants in these markets. Transparency greatly improves the functioning of the existing securities and futures markets. We should shine the same light on the swaps markets. Increasing transparency for standardized derivatives should enable both large and small end-users to obtain better pricing on standard and customized products.


Some have articulated a false choice between stronger regulation on the one hand and a free market on the other. Rules improve markets, however, by enhancing efficiency and integrity. Traffic lights require you to stop your car, but they also ensure that traffic is orderly and efficient. They reduce risks for every person on the highway. Similarly, this country’s markets work best with clear rules of the road.


Last year’s crisis also highlighted the need for regulators to change. In that regard, the CFTC last week released a joint report with the SEC to bring greater consistency, where appropriate, to our regulatory approaches. While the missions of the CFTC and the SEC may differ, our goal is the same: to protect the public, enhance market integrity and promote transparency. In preparing our report, we set turf aside and focused on those changes that would best benefit the markets and the American people.

We jointly made 20 recommendations where we can change our statutes and regulations to enhance both agencies’ enforcement powers, strengthen market and intermediary oversight and facilitate greater operational coordination.


Other related hedge fund law articles include:

Investment Adviser Representative Registration Requirement

Employees of Registered IAs Must Generally be Registered

State-registered investment advisory firms need to make sure that their employees who are deemed to be “investment advisory representatives” are appropriately registered. This means that any employee (or owner) of the IA firm who provides investment advice or who has supervisory authority will generally need to be registered with the state as a representative of the firm. In order to register, the applicant will need to have certain qualifications and generally the series 65 will be sufficient for these purposes.

There are consequences for not properly registering employees as investment advisor representatives. In an earlier article on whether IA firms can have silent owners, we discussed the fact that many state administrators have the power to censure or fine IA firms if they do not follow the registration rules. I recently stumbled across an example of a state taking such an action.

In the attached [intentionally removed], the Texas State Securities Board (“Board”) concluded that the “unregistered employee” of the registered investment advisory firm provided investment advice to IA clients for compensation and that the IA firm failed to maintain a supervisory system reasonably designed to ensure compliance with the Texas Securities Act and Board Rules. The Board reprimanded the IA firm and also ordered an administrative fine of $5,000. The firm was required to comply with the Act and Board Rules moving forward.

The two important take-aways from this order are:

  1. Always make sure employees are registered or clearly exempt from registration, and
  2. Always ensure that you have an up-to-date compliance program that helps to ensure that the firm will operate within all applicable laws and regulations.

We always recommend that registered IA firms discuss any registration and compliance related matters with an experienced investment management attorney with detailed knowledge of the laws of the state where the firm is registered.


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Bart Mallon, Esq. of Cole-Frieman & Mallon LLP runs Hedge Fund Law Blog.  Mr. Mallon’s legal practice is devoted to helping emerging and start up hedge fund managers successfully launch a hedge fund.  If you are a hedge fund manager who is looking to start a hedge fund or if you have questions about your investment advisor compliance program, please contact us or call Mr. Mallon directly at 415-868-5345.