Author Archives: Hedge Fund Lawyer

New York BitLicense

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Overview of the Cryptocurrency Licensing Regime in New York

As cryptocurrencies continue to make headlines, questions continue to arise about the regulatory landscape applicable to market participants. While there have been no new laws or regulations related to the cryptocurrency space from federal agencies (although in the Coinflip order, the CFTC stated that bitcoin is a virtual currency), some states are beginning to examine cryptocurrencies with New York as a forerunner in this space.  In 2015, New York created a BitLicense Regulatory Framework whereby certain cryptocurrency market participants were required to obtain a license to transact business within New York (and/or with New York residents).  This post focuses on New York’s regulatory action regarding cryptocurrencies with the issuance of the BitLicense, and the potential impact this may have on investment managers.

New York BitLicense

Pursuant to the Part 200. Virtual Currencies regulations, any persons involved in “virtual currency business activity” in New York must obtain a license known as the “BitLicense.”  The regulation defines a “virtual currency business activity” as:

  • receiving virtual currency for transmission or transmitting virtual currency, except where the transaction is undertaken for non-financial purposes and does not involve the transfer of more than a nominal amount of virtual currency;
  • storing, holding, or maintaining custody or control of virtual currency on behalf of others;
  • buying and selling virtual currency as a customer business;
  • performing exchange services as a customer business; and
  • controlling, administering, or issuing a virtual currency.

The above categories really seem to apply to those groups who are acting as cryptocurrency exchanges and/or are offering “wallet” type services.  For most fund managers who are simply managing a fund which is investing in virtual currencies, the above items would not implicate such managers and such managers would not need to obtain the BitLicense.  However, if a manager (or an investment fund) was engaged in activity other than simply buying/selling/holding cryptocurrencies, the manager should be aware of the above items.

BitLicense Application

In order to receive the license, an applicant must complete a 30-page Application for License to Engage In Virtual Currency Business Activity and pay a $5,000 application fee.  The application requires information on the history of the business, its owners and operators, operational items, financials, information on AML procedures, and information on its general compliance processes.  In total the application is fairly onerous and costly and will likely deter many potential companies for applying for the license.  Few BitLicenses have actually been granted to date, and those that have been granted were to major players in the industry such as Coinbase and Ripple.

Other Related Items

There are a number of interesting related items and a discussion about these can be found on the BitLicense FAQs page.  A couple of the more interesting items:

  • Chartered New York Bank – if a group is already chartered under the New York Banking Law, that entity does not need to apply for the BitLicense but must first receive prior approval from the New York Department of Financial Services to engage in the activity.
  • Money Transmitter License – groups who engage in certain activities may also need to apply for a money transmitter license in New York.  Groups who are applying to engage in both activities only need to submit one application.

The two items above are most likely not applicable to fund managers.

Looking Forward

The establishment of a BitLicense demonstrates that states are trying to figure out how to assert authority over a space that prides itself on decentralization. The New York BitLicense has been seen as controversial, along with similarly proposed licenses in other states. Although this appears to not have a direct impact on investment managers yet, investment managers that engage in certain kinds of virtual currency activity may fall within the scope of requiring a license.

Related articles:

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Bart Mallon is a founding partner of Cole-Frieman & Mallon LLP. Cole-Frieman & Mallon has been instrumental in structuring the launches of some of the first digital currency-focused hedge funds. For more information on this topic, please contact Mr. Mallon directly at 415-868-5345.

Greyline Solutions Continues Expansion

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Regulatory Compliance Consulting Company Adds Significant Broker-Dealer Practice

Below is a press release from Greyline Solutions, one of the premier regulatory consulting groups (editors note: I have an ownership interest in this company and have worked with the acquired company, Vista Compliance, and Talia Brandt for a number of years).  I’d like to send my congratulations to all on the Greyline team!

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Greyline Solutions Expands with Addition of Vista Compliance

Greyline Solutions announces partnership with Vista Compliance. Talia Brandt to lead broker-dealer practice for Greyline.

San Francisco, Calif. – April 13, 2017 – Greyline Solutions, LLC, a premier financial regulatory and
compliance consulting firm headquartered in San Francisco, is partnering with Vista Compliance, a national compliance consulting firm based in San Francisco. The transaction, which is expected to close on May 1, 2017, will expand Greyline’s presence to the East Coast. It will also create a broker-dealer practice, which will be led by Talia Brandt, Vista’s founder.

Brandt and her team of senior consultants – who each have more than 10 years of industry experience, including experience at regulators – will reinforce Greyline’s ability to support alternative asset managers and traditional investment advisers in their compliance efforts.

“For the past nine years, Vista has been steadily growing our business by servicing investment advisers and broker dealers with a client-centric orientation and a commitment to partner with our clients to meet their compliance needs. In joining forces with Greyline, we are excited to leverage our offering by expanding our presence in other markets,” says Brandt.

“Vista’s success is impressive. Its depth of SEC and FINRA compliance experience, including experience working at regulators, has made it a top choice for managers looking for high-touch, institutional-quality services,” says Matthew Okolita, chief executive officer of Greyline. “Vista’s commitment to sustainable quality services aligns perfectly with our mission, and this partnership will allow us continue our efforts to expand nationally across all spectrums of the asset management industry.”

About Greyline Solutions

Headquartered in San Francisco, Greyline Solutions is a national compliance consulting firm offering comprehensive compliance solutions for businesses in the securities industry. Greyline prides itself on tailoring compliance management solutions to the unique needs its clients, which include private equity, venture capital, hedge fund managers, commodity pool operators and other investment managers, as well as businesses ranging from entrepreneurial start-ups to multi-billion dollar international institutions. Custom technology and experienced staff are two of the hallmarks of Greyline’s offerings. The firm is comprised of securities industry
professionals with decades of experience in the financial and regulatory industries. Its mission is to simplify the process, minimize risk, and lower costs, with the core goal of helping clients focus on building and enhancing their businesses.

Contact Information
Matthew Okolita
Greyline Solutions LLC
http://www.greylinesolutions.com
415.604.9527

Hedge Fund Bits and Pieces for March 31, 2017

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Happy Friday and congrats to everyone on making it though the first quarter!  Our firm will be sending out a 2017 first quarter update sometime in the next couple of weeks – if you are not on the distribution list and would like to be, please contact us.  We will also post the update to this blog.

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Annual ADV Update – due TODAY by 11pm ET (when IARD system shuts down).  The ADV annual updates are due today.  Most firms have submitted their updates by now but if you have not done so, please call your legal or compliance professional immediately.  Additionally, fund managers generally will have their audits completed by today and those should be sent to investors as per the firm’s compliance procedures.

Another Bitcoin Trust Rejected by SEC – on Tuesday the SEC rejected an application by NYSE Arca to list shares of SolidX Bitcoin Trust.  The trust was set to a publicly traded vehicle designed to track the price of bitcoins as measured by an index of unregulated bitcoin exchanges (Bitfinex, Bitstamp, GDAX, itBit, and OKCoin International).  In rejecting the application, the SEC stated that it believes that the bitcoin markets are unregulated.  This is the second rejected listing of a bitcoin product for retail investors (see earlier post discussing the rejection of the Winklevoss bitcoin ETF).

SEC Focus on FinTech – it is abundantly clear that technology is beginning to change the capital markets in profound ways.  As practitioners, we are working with our clients to figure out how new ways of investing fit within the current regulatory structures applicable to both products and managers.  As these changes take deeper root, there will be growing pains and the SEC realizes this – below are recent remarks made on Monday in Washington by acting SEC Chairman Michael Piwowar about the FinTech industry and how the SEC will be working in the space in the future.  The full speech, made at the beginning of the SEC’s 27th Annual International Institute for Securities Market Growth and Development, can be found here.

Financial technology (“FinTech”) is also revolutionizing our industry. FinTech can bring tremendous benefits – streamlined market operations and more affordable ways to raise capital and advise clients.  Fifty-nine percent of all adults in developing nations do not have a bank account – but this is changing fast. With cell phones now in the pockets of many individuals in even the poorest of nations, mobile technology has greatly cut down on barriers to accessing capital. In Kenya, for example, I saw firsthand the transformative power of FinTech. Sixty-eight percent of Kenyan adults use their mobile phones for monetary transactions. In 2013, over 25% of the Kenyan GNP was transferred via M-PESA, the leading mobile money transfer service in the country. Services like M-PESA are not only for the transfer of money, but also can be used to take out micro-loans that would have been previously unavailable to small businesses.  The question for us regulators is how can we encourage this innovation and all the potential benefits that it promises, while also managing the risks? At the SEC, we started a FinTech working group. Not surprisingly, FinTech firms report that their greatest struggle is navigating a complex regulatory environment. The SEC, and other securities regulators, should take the leading role in working with the FinTech community to adapt longstanding laws and regulations to newfangled technology. (footnotes omitted)

Other Items:

  • CFTC Announces Committee Meeting on Cybersecurity – the CFTC just announced that the Market Risk Advisory Committee (MRAC) will meet on April 25, 2017 to discuss a number of important issues related to the futures and commodities markets.  A central focus of this meeting will be focused on cybersecurity trends in the futures markets.  The discussion will also cover “how well the derivatives markets are currently functioning, including the impact and implications of the evolving structure of these markets on the movement of risk across market participants” – we anticipate that some part of the discussion will focus on certain new instruments like cryptocurrencies and the emerging derivate products linked to such instruments.  The MRAC’s meeting will be public and be held at the CFTC’s Washington, DC, headquarters.
  • Adidas Trademark Issue – while not directly related to the investment management industry, this blog post (produced by our Of Counsel trademark attorney Bill Samuels) highlights the technical nature of the enforcement of trademarks.  It also highlights the strength of a registered mark (the sale of only two hats, which contain a trademarked phrase, are enough to implicate interstate commerce and allow a trademarked phrase to be protected under the trademark laws).  It is important for managers with questions on their trademarks and other intellectual property to discuss these matters with counsel.

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Bart Mallon is a founding partner of Cole-Frieman & Mallon LLP and focuses his legal practice on the investment management industry. He can be reached directly at 415-868-5345.

Hedge Fund Bits and Pieces for March 24, 2017

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Happy Friday from rainy San Francisco. As a reminder, there is one week left for investment advisers to complete the annual ADV update.

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Notes on cryptocurrency and blockchain – earlier this week Coinbase added a new margin product for leveraged trading in certain leading cryptocurrencies including Bitcoin. We believe that a product like this would be subject to CFTC jurisdiction and certain registration (or exemption) requirements. As we’ve had more discussions with groups in this space over the last couple of weeks we are seeing both the difficulties of running a fund strategy in this space (hard to find banks willing to support crypto managers; lack of audit firms able to audit these strategies) and the possibilities of blockchain technology (potentially uses for compliance in the hedge fund space).  These discussions have come in the wake of significant client interest in this are and our article on bitcoin hedge funds.

Cannabis Investment Management Conference – continuing on our earlier discussion of the rise of investment opportunities in the cannabis space, MedMen and IMN are putting on The Institutional Capital & Cannabis Conference next week in San Jose. The conference will take place on March 28-29 and will include a number of funds and allocators in the cannabis space.

Regulations and Tax – not as much news this week on the regulatory front applicable to hedge funds – we expect to begin hearing more next week (after the Health Care Bill vote) when/if the discussion of tax reform begins. If Trump keeps his word to eliminate the “carried interest loophole”, we may see more discussion of the issue like we did back in 2011 and 2009.

Other Items:

  • SEC Compliance Seminars – the SEC announced compliance seminars in a number of cities. Please see the release here.
  • Connecticut Reminder to Exempt IAs – the Connecticut Department of Banking sent out a regulatory reminder about managers who utilize the Connecticut IA registration exemption (more information in our post about the Connecticut ERA filing) in the state. The release can be found here.
  • SEC Adopts T+2 – the settlement cycle for securities transactions gets shorter by one day on September 5, 2017. We expect to hear more from the brokerage firms about this change in the next couple of months as systems become integrated with the new requirements. The announcement can be found here.

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Bart Mallon is a founding partner of Cole-Frieman & Mallon LLP and focuses his legal practice on the investment management industry. He can be reached directly at 415-868-5345.

Cannabis Hedge Funds

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Overview of Private Fund Investment in the Marijuana Industry

After the elections of 2016, eight states and the District of Columbia have laws allowing for the recreational use of marijuana. Many other states have decriminalized the use of marijuana and most allow the use of medical marijuana. From the standpoint of the investment management industry, the expansion of the market for cannabis has created a new category of potential investments. Private investment funds that focus on this industry (so called marijuana or cannabis hedge funds) are still relatively rare but we anticipate that they are in the early stages of developing into a strong sector strategy moving forward. This post is designed to provide an overview of the structure and regulatory considerations for these vehicles.

Structural Considerations

In general, the structure of a cannabis hedge fund will be substantially the same as a standard hedge fund, with some minor items to keep in mind. Structurally, managers will focus on the type of strategy they will deploy, the investment terms for that strategy and whether to use offshore structures.

• Hedge Funds or Private Equity Strategy. Each manager in the space will have their own idea of what would make an attractive investment in this space. If a manager is planning to make investments in companies that are publicly traded, then the fund structure will be the same as a traditional hedge fund (more liquidity, annual performance allocation). If a manager is interested in making investments directly into companies that are not publicly traded, then the fund structure will likely be private equity style (no liquidity, distributions only on disposition events). Many managers will find that their industry expertise will help them find attractive opportunities in both spaces and so these managers will most likely do some sort of combination structure—essentially a hedge fund with side pockets.

• Fund Terms. Whichever structure is used, the terms are going to be substantially similar to other hedge funds and managers will need to determine what contribution schedule, redemption schedule, leverage amount, if any, and what other investment terms will work for their fund. Because of the industry focus, we’ve seen some groups form advisory boards. We’ve also seen groups who have decided to create SPV structures under the fund to facilitate direct investments, to navigate the regulatory landscape, or to create greater shields from liability.

• Onshore / Offshore Structures. Whether to use an offshore structure will be determined mostly by the jurisdiction of investors in the fund. Like a normal private fund, if there are no offshore investors, then a standard domestic fund will usually be sufficient; if there will be offshore investors or if manager intends to use leverage and have IRA or 401k investors, an offshore structure will normally be utilized. If an offshore structure is used, the choice will generally be between the mini-master structure  and the master-feeder structure. In general, the manager will not want to create a standalone offshore structure if they are doing PE-style investments because of the likelihood that such investment would be deemed to be involved in a US trade or business, subject to additional tax planning. In addition to structure, managers will need to decide on offshore counsel and many managers will engage independent directors.  These items will be discussed with counsel during the formation process.

Regulatory and Other Considerations for Marijuana Fund Managers

While structuring of the fund and drafting of the fund documents will be fairly straightforward, there are some other operational issues for cannabis fund managers to keep in mind.

• Regulation of Management Company. Like a normal hedge or PE fund manager, the management company to a cannabis fund would be deemed to be an investment adviser because the manager would receive compensation for providing advice regarding investment in securities. As any normal investment adviser, the manager would need to determine whether to register under the state or SEC regimes or whether the manager could utilize an exemption from registration.

• Federal Legal Issues. There are two federal laws that impact investment managers in the cannabis industry:

Controlled Substances Act (CSA) – Notwithstanding minor federal action to the contrary (i.e. the “Cole Memos”), marijuana is still deemed to be a Schedule 1 controlled substance under federal law. While unlikely, it is possible that marijuana businesses abiding by state law could be subject to federal action with respect to the manufacturing and dispensing of the product. [Note: the above was accurate during the Obama administration; the Trump administration has indicated that federal action may occur.] Federal sanctions under the CSA are harsh and include jail time and fines.

Bank Secrecy Act (BSA) – Perhaps a bigger issue for the cannabis industry are the issues that arise under the BSA. The BSA provides a framework that banks must follow with respect to certain suspicious activity. Because marijuana is still classified as a Schedule 1 controlled substance, banks are technically required to report the activity of their clients in the cannabis industry to the U.S. Treasury. This sort of red tape, and the potential for liability to the bank for helping to facilitate this activity, makes banks less likely to deal with groups in this space. Although fund managers are a step removed from any growing or selling operations, we have generally found that managers will need to spend time finding a bank that is comfortable with the potential risks of holding the fund’s cash. Ultimately as the industry grows and federal law loosens (if they do), we believe the banking industry will come around. We have recently heard of groups who are trying to work on a bitcoin-type payment system for the cannabis industry.

• State Laws. For states that now allow the recreational use of marijuana, there generally are a number of laws and regulations that both operating companies and fund managers must keep in mind. The laws and regulations will generally be implemented by a state regulatory body that will have the power to determine the manner in which leaf-based products (including seeds) are brought to market. Non-leaf based products (such as paraphernalia) generally will be subject to lesser or no scrutiny under state law.

• Investment Size. Many private companies in the industry are new and subject to the same kinds of operational risks that apply to businesses in other industries. Additionally, these private companies are small and not yet able to deploy capital from large equity investments. In this way, fund projects tend to be on the smaller side because of capital constraints.

• Service Providers. Some groups, especially audit firms, may be reticent to provide services to groups who focus on investments into this sector. As mentioned above, banking may be also be an issue for managers in this space. Some groups also may decide that there are specific issues they need to discuss with cannabis legal counsel.

• Valuation. As with any private investment fund that deals with investments into non-publicly traded securities, a cannabis fund with investments in private companies may have to deal with valuation issues of the investments. To a certain degree, many issues can be side-stepped if the manager institutes side pockets, but this will be an area where the manager will want to discuss options with fund counsel as well as fund accountants and auditors.

Conclusion

The marijuana/cannabis industry undoubtedly will become huge over time as more states allow recreational use of marijuana. Although currently still in its infancy, the cannabis industry is poised for significant growth and eventually capital will flow towards managers who focus on this space. While we would have predicted that there would be significantly more private funds focused on this area by now, we anticipate that this will be a strong and growing sector over the coming years as more states legalize the recreational use of the drug and the infrastructure around both companies and assets managers in this space becomes more institutionalized.

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Bart Mallon is a founding partner of Cole-Frieman & Mallon LLP and helped establish one of the first cannabis-focused hedge funds. For more information on this topic, please contact Mr. Mallon directly at 415-868-5345.

IA Annual Form ADV Update for 2017

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Investment Adviser Registration Update Due March 31

Under SEC and state regulations, registered investment advisers and exempt reporting advisers (“ERAs”) must file an annual amendment to Form ADV within 90 days of the end of its fiscal year. For most firms this means that the annual updating amendment is due by March 31, 2017.

Process and Major ADV Update Items

The annual update can be completed through the IARD system either (i) internally by the firm’s CCO or (ii) externally by a firm’s compliance consultant or fund attorney. The process generally will entail a review of the current Form ADV, and Form ADV Part 2 if applicable, to make sure that all information is up to date and accurate. In general, once the review process has begun, the update can be completed in a few days depending on the complexity of firm’s operations and the capacity of the updater to make changes in the system. For many firms whose operations have not changed throughout the year, the update should be fairly straight forward – for private fund managers in this situation, the focus mostly will be on the Schedule D, Item 7.B.(1) items (Private Fund Reporting) which include updates to the following items for each fund:

  • Gross asset value of the private fund as of 12/31/16 (essentially RAUM of the fund, described below)
  • Total number of investors
  • % of the fund owned by the advisor and/or its related persons
  • % of the fund that is owned by fund of funds
  • % of the fund that is owned by non-US persons

Private Fund RAUM

The SEC has defined regulatory assets under management (“RAUM”) in Item 5b of the Form ADV instructions (see Form ADV and Filing Instructions for more information).  Generally, RAUM should include the securities portfolios for which a manager provides continuous and regular supervisory or management services as of the date of filing or update of the Form ADV. Unlike AUM, the RAUM calculation requires managers to report assets managed without the deduction of any outstanding indebtedness or other accrued but unpaid liabilities (including accrued fees or expenses) that remain in a client’s account. A fund manager’s RAUM may be higher than its normally reported AUM because it includes:

  • Cash and cash equivalents (i.e., bank deposits, certificates of deposit, bankers acceptances, and similar bank instruments)
  • Long and short positions (on a gross basis)
  • Leverage
  • Margin
  • Family or proprietary accounts
  • Accounts for which the manager receives no compensation for its services
  • Accounts of clients who are not United States persons

RAUM should be calculated based on the current market value of the assets as determined within 90 days prior to the date of filing the Form ADV.  For private funds, the SEC has stated that a manager may rely on the gross assets as reflected on the fund’s balance sheet, and the manager may assess the value of financial instruments under the applicable accounting standards, which is GAAP in this industry.  We urge managers to reach out to their accounting firm if they are unsure about the treatment of any financial instruments for purposes of the RAUM calculation.

Other Items

While it is important to make sure all parts of the Form ADV are accurate and complete, special attention should also be paid to the Part 2 brochures. Some firms also take this opportunity to review their compliance program but given this update requirement and the audit deadline for pooled investment vehicles, the annual compliance review will often be pushed back until later in the year.  While we are quickly coming up to March 31, there is still plenty of time to complete the update and private fund managers should reach out to us if they would like our assistance preparing the amendment for this year.

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Bart Mallon provides investment adviser registration and compliance services to investment advisers and private fund managers through Cole-Frieman & Mallon LLP.   Mr. Mallon can be reached directly at 415-868-5345.

San Francisco Hedge Fund Events – April 22 and April 23

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There are two big events in San Francisco this week.

SF Hedge Fund Networking Group

Meeting April 22 at 4pm at Blanc et Rouge in San Francisco.  For more information, please see the LinkedIn page.

Hedge Funds Care 13th Annual Benefit

The annual Open Your Heart to the Children event featuring the San Francisco 49ers Foundation is on April 22 at 4:30pm.  This year the event will be at the City View space at the Metreon and will feature a number of Bay Area wineries.  For more information on the event and to buy tickets, please go here.

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Cole-Frieman & Mallon LLP provides legal services to the hedge fund industry.  Bart Mallon can be reached directly at 415-868-5345.

 

CFTC Issues No-Action Letters for CPO Registration Relief

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Hedge Fund General Partner CPO Registration Relief 

In a series of no-action letters issued in March, the CFTC has granted no-action relief from registration as a commodity pool operator (“CPO”) for a general partner of a fund (or a managing member, if the fund is an LLC) that delegates its entire management authority over the fund to another entity – typically an “investment manager” entity – that is under common control with the general partner. Under this relief, the investment manager is required to register as a CPO, but the general partner is relieved from the CPO registration requirement.

Background on CPO Registration

Based on the legal structure of a fund organized as a limited partnership or limited liability company, typically the general partner or managing member (respectively) has the operational authority over the fund that makes CPO registration process necessary. Under the Commodity Exchange Act of 1936 (the “Act”), an entity that engages in the following activities on behalf of a fund (a “pool” in CFTC parlance) is generally required to register as a CPO:

“any person engaged in a business that is of the nature of a commodity pool, investment trust, syndicate, or similar form of enterprise, and who, in connection therewith, solicits, accepts, or receives from others, funds, securities, or property, either directly or through capital contributions, the sale of stock or other forms of securities, or otherwise, for the purpose of trading in commodity interests.”  See text here.

In some fund structures, however, the general partner may wish to delegate its CPO responsibilities to an investment manager. This is often (but not exclusively) done in the context where a fund’s performance allocation is paid to the general partner, in order to obtain favorable tax treatment, but the investment manager runs the fund on a day-to-day basis, often receiving management fees as compensation. In this situation, it would be costly and burdensome to register both the general partner and the investment manager as separate CPOs of the fund, so it may be worthwhile to request CFTC no-action relief.

Requirements for No-Action Relief

The CFTC issued four no-action letters outlining the general guidelines for how to take advantage of the CPO registration relief described in this article: CFTC Letter No. 13-17, CFTC Letter No. 13-18, CFTC Letter No. 13-19, and CFTC Letter No. 13-20. Although the facts of each no-action letter differ somewhat, the following basic requirements apply. The general partner and investment manager should be able to make representations to the CFTC with respect to each of the following:

• Common Ownership and Control. The general partner entity and the investment manager entity should have the same owners and be subject to the control of the same persons.

• Delegation Agreement – All Management Authority. The general partner and investment manager should enter into a “Delegation Agreement” whereby all of the CPO-related authority of the general partner is delegated to the investment manager.

• Soliciting Clients and Managing Assets. The general partner must not engage in the solicitation of investors to the fund, and must not manage the property of the fund.

• Books and Records. All books and records related to the CPO activities should be maintained at the offices of the investment manager.

• CPO Registration. The investment manager must be registered or be in the process of registering as a CPO, and must maintain its registration on an ongoing basis.

• Employees and Agents. The general partner must not have any employees or others acting on its behalf, and must not engage in any other activities that would subject it to the Act or the CFTC’s regulations.

• Joint & Several Liability. The general partner and investment manager entities must agree to be jointly and severally liable for any violation of the Act or the CFTC’s regulations.

• Statutory Disqualification. The general partner cannot be subject to statutory disqualification from CPO registration under section 8a(2) or 8a(3) of the Act.

How to Apply for No-Action Relief

If you wish to apply for the no-action relief described above, you will need to draft a letter to the CFTC to request the relief. This letter should comply with the requirements of CFTC Regulation 140.99. Please reach out to us if you would like any assistance with drafting such a letter.

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Cole-Frieman & Mallon LLP acts as legal counsel to the investment management industry.  If you have questions on the above please contact us or call Bart Mallon directly at 415-868-5345.

California Finance Lenders License

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California Requirements for Hedge Funds and Private Equity Funds Engaged in Lending Businesses

Investment advisers, private equity managers, private fund managers, and other businesses that are engaged in making loans should be aware of whether their activities fall under the purview of the lending laws of any state such that they would be required to obtain a license and comply with certain ongoing regulatory requirements.

Under California law, finance lenders (defined as “any persons who are engaged in the business of making consumer loans or making commercial loans”) and finance brokers (defined as “any persons engaged in the business of negotiating or performing any act as brokers in connection with loans made by a finance lender”) are required to obtain a California Finance Lenders License. Private investment funds, such as hedge funds and private equity funds, that engage in such activities are no exception.

Notwithstanding the foregoing, the California Finance Lenders Law (“CFLL”) exempts certain transactions from its licensing requirements. Lenders relying on these exemptions will be able to avoid a lengthy application process with the California Department of Business Oversight and its associated requirements and costs.

New and Existing Exemptions under the California Finance Lenders Law

Effective January 1, 2014, section 22050(e) of the California Financial Code was amended to exempt persons who make five or fewer commercial loans in a 12-month period, provided that the loans are incidental to the business of the person relying upon the exemption. This amendment expanded the previous de minimis exemption for any person making just one commercial loan in a 12-month period. As such, investment advisers, private fund managers, and other members of the investment management industry that occasionally provide commercial loans may take advantage of this expanded safe harbor as long as such loans are incidental to their primary business.

A full list of exemptions is set forth under Sections 22050 – 22065 of the California Financial Code, providing relief from CFLL regulation for other types of transactions and specific entities licensed by other regulatory agencies. Among those exempt are the following:

• Banks, trust companies, savings and loan associations, insurance premium finance agencies, credit unions, small business investment companies, community advantage lenders, California business and industrial development corporations, or licensed pawnbrokers;

• Loans made or arranged by persons licensed as a real estate broker by the state and secured by a lien on real property, or to any licensed real estate broker when making such loan;

• Commercial bridge loans made by a venture capital company to an operating company, subject to certain requirements.

If you are engaged in lending transactions, we encourage you to contact your legal counsel to determine if you are eligible for one of the exemptions under the CFLL.

Licensing and Regulation under the California Finance Lenders Law

Finance lenders unable to avail themselves of an exemption from CFLL regulation will need to submit an application to the California Department of Business Oversight. Currently, the application must include the following attached items:

• Balance sheet

• Surety bond in the amount of $25,000

• Proof of Legal Presence (for sole proprietor applicants)

• California Customer Authorization for Disclosure of Financial Records Form

• Fictitious Business Name Statement (if applicable)

• Certificate of Status or Good Standing in the applicant’s state of formation and in CA

• Partnership Agreement (for general partnership applicants)

• Federal Taxpayer Identification Number or Social Security Number (for sole proprietors)

• Organization Chart for the Applicant

In addition, each individual responsible for the applicant’s lending activities must complete a “Statement of Identity and Questionnaire” and provide fingerprints. The application fee is currently $200 (nonrefundable), plus an investigation fee of $100 and fingerprint processing fees ($20 per California resident; $80 per non-California resident).

It should be noted that the licensing process for residential mortgage providers (mortgage lenders and brokers) is a separate application, filed through the Nationwide Mortgage Licensing System.

Once approved, licensees are subject to periodic regulatory examinations for which they must pay; pay an annual assessment each year; file an Annual Report by March 15 of each year; are subject to statutory books and record requirements; and must maintain a $25,000 surety bond at all times.

If you are subject to licensing would like our assistance with obtaining a California Finance Lenders License, please contact us.

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Cole-Frieman & Mallon LLP provides legal services to hedge fund and private equity funds.  Bart Mallon can be reached directly at 415-868-5345.

NFA May Impose Capital Requirements, Other Restrictions on CPOs and CTAs

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NFA Suggests New Rules, Solicits Comments from CPOs and CTAs

The NFA recently issued a Notice to Members that included a Request for Comments on a proposal to subject CPOs and CTAs to new rules. These rules, which include a minimum capital requirement for CPOs and CTAs, would be intended to protect customer funds and ensure that CPOs and CTAs have sufficient assets to operate as a going concern.

The NFA justified the need for these rules by citing 26 Member Responsibility Actions that were taken over the past 3 years, mostly against CPOs and CTAs for misuse of customer funds and/or misstatements of net asset values and performance information. Comments are due to the NFA by April 15, 2014.

Rules Under Consideration

The NFA did not propose any language for the rules in its Request for Comments, nor did the NFA suggest any details on how the rules might be drafted. Instead, the NFA implied what rules are under consideration by posing questions to CPOs and CTAs on the utility of certain rules, and on what standards should be applied to implement them.

CPOs and CTAs

• Capital Requirements. CPOs and CTAs may be required to maintain a minimum amount of capital, and to file periodic reports with the NFA to demonstrate compliance. However, the NFA’s Request for Comments indicates a degree of flexibility. For example, the NFA asked for members who oppose a capital requirement to suggest alternatives for ensuring that CPOs and CTAs have sufficient funds to operate as a going concern.

• Inactive NFA Members. NFA members that are not actively trading futures or commodity interests may have their NFA membership withdrawn, so that the NFA can stop expending regulatory resources on these firms.

CPOs Only

• Gatekeeper for Pool Disbursements. CPOs may need to retain an independent third party to approve pool disbursements (a “gatekeeper”).

• NAV Valuation and Reporting. An independent third party may be required to prepare or verify a CPO’s pool NAV valuations, and such valuations may need to be submitted periodically to the NFA.

• Performance Results. An independent third party may have to prepare or verify a CPO’s pool performance results.

• Verification of Pool Assets. CPOs and the entities actually holding pool assets may both be required to report pool asset amounts to the NFA, so that the NFA can cross-reference the reports for consistency. This could be similar to rules currently in place for futures commission merchants.

Conclusion

The new rules being considered are in the earliest stages of development, but it is clear that the NFA is concerned about the misuse of customer funds and the risks posed by undercapitalized CPOs and CTAs. Any CPOs or CTAs interested in commenting on the rules under consideration should submit their comments to the NFA via email to [email protected] by April 15, 2014.

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