Category Archives: Business Issues

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.

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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.

www.castlehallalternatives.com

Hedge Fund Operational Due Diligence

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Proposition Q and Hedge Funds

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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 (www.colefrieman.com) at 415-352-2300.

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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.

Investment Adviser Representative Registration Requirement

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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:

Always make sure employees are registered or clearly exempt from registration, and
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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Raising Hedge Fund Assets | New Market Requires New Strategies

Hedge Fund Regulation IT Solutions

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Technology Solutions for Registered Hedge Fund Managers

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It is the final quarter of this year’s political season and it has become clear that the earlier clamor for hedge fund registration has been overshadowed by larger political issues – namely health care legislation and the cap and trade bill. Recent events, however, have shown that the registration issue is not dead and the venture capital industry has been able to potentially secure an exemption from the registration provisions. Even though we don’t know where regulation will take us in the next 6 to 18 months, it is likely that many hedge fund managers will need to institute compliance and IT programs as a result of forthcoming laws and regulations.

The article below, submitted by Meyer Ben-Reuven, CEO of Chelsea Technologies, details some issues which managers will need to be ready to handle once legislation and regulations go into effect. State registered investment advisors should take note as they may already be required (under state law) to maintain such compliance programs.

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How is President Obama’s New Hedge Fund Regulation Plan affecting you?
By Meyer Ben-Reuven, CEO Chelsea Technologies

The challenging question Hedge Fund Managers should ask themselves is what should they be doing to be compliant with President Obama’s Hedge Fund Regulation Plan? There are many questions and many tasks to accomplish, but most important is to understand the main points of the plan, what needs to be done and what are the costs associated. In this paper I present you with a summary of the President’s plan and what a Chief Compliance Officer needs to face in conjunction with the IT department to be compliant with regulations. Costs are important, but I will keep them away from this paper.

Obama’s New Hedge Fund Regulation Plan

In June 2009, President Obama presented a proposal for new regulations that affect Hedge Funds and fund managers. The most important part of this new regulation will be to require Hedge Fund, Private Equity, and VC Fund Managers to register with the SEC as investment advisors.

Although it is a proposal, all fund managers will have to start thinking about the re-registration and the process to keep the fund compliant.

The plan’s 5 main goals are:

Promote robust supervision and regulation of financial firms.
Establish comprehensive supervision and regulation of financial markets.
Propose comprehensive regulation of all OTC derivatives.
Protect customers and investors from financial abuse.
Raise international regulatory standards and improve international cooperation.

The idea is to require advisers to report financial information on their fund and its management and thus have the ability to assess whether the fund poses a threat to the stability of the financial system and at the same time strengthen investor protection.

The specific goals regarding hedge funds are as follows:

Data collection
SEC should conduct regular, periodic examinations of hedge funds
Reporting AUM and other fund metrics to the SEC
SEC would have ability to assess whether the fund or fund family is so large, highly leveraged, or interconnected that it poses a threat to financial stability

How will IT Departments have to help keep the funds within regulation rules?

As of February 2006, Hedge Fund Advisors were obliged to comply with SEC Rule 203(b)(3)-2 requiring registration under the Investment Advisor Act. Under these rules, the Hedge Funds were advised to retain all internal and external email and IM business communications. In June 2006, the Goldstein ruling against the SEC pushed several funds to de-register. With the failure of the financial system since the end of 2007, the new administration has been poised to regulate the industry more than ever.

What needs to be done?

Take a look at all the ways communications are conducted in the fund
What are the devices used to communicate
Always be on the lookout for new technologies

Afterwards, insure you have control over the different communication methods. As stated, all electronic communication in and out of the fund has to be retained for future review. This means that if it cannot be controlled and retained, it must be prohibited.

All internal rules have to be specified in IT policies and procedures, otherwise no one can be held accountable.

The following is how data needs to be archived for SEC purpose audits:

Incoming/Outgoing Data must be kept in its original form
Data has to be easily retrievable and searchable
Data has to have a date and time stamp
Data has to be retained in the main office for first 2 years
Data has to be retained for 5 years
Data has to be put into tamper proof media (meaning non-rewritable and non-erasable)
Data has to be stored in a secondary backup location (preferably away from the same grid)
Be able to produce data promptly (within hours)
Be able to provide data in its original format in either view or print form
Implement annual review of the system

It is highly recommended that data be tested for integrity including testing retrieval and searching, as well as accuracy. The test should be conducted on a yearly basis, but better if on a more frequent basis.
Although the IT department is in charge of conducting the process, it is ultimately the Chief Compliance Officer who is responsible for this area. The Chief Compliance Officer needs to dictate the test frequency as well as to advise everyone in the firm about the policies and make sure everyone understands the consequences of failure to comply.

All these internal policies have to be in writing and any violations have to be documented and fixed. The regular testing and reviews have to be documented and be ready for presentation in case of an audit.

NOTE: TAPE BACKUP IS NOT A SUBSTITUTE FOR MESSAGE ARCHIVING

What are the different communication venues that exist and can be controlled and thus archived?

Email and IM from Exchange
Email and IM from Bloomberg and Reuters
Blackberry archiving of Pin-to-Pin , SMS, Call Detail logs
E-Faxes
Blogs
Chat Rooms
Message Boards
Twitter
Facebook
LinkedIn

Since all of the above require certain technologies and software for archiving and retaining, you have to make an effort to comply with the regulations or otherwise prohibit the usage of such technologies in the work place.

How do you implement compliance?

There are two schools of thought to achieve compliance:

Build an in-house system
Use a third party system

The in-house system is more complex and often requires a larger upfront investment to build and maintain. Keep in mind you will have to have the following:

Servers, storage, and software
Backup Servers, storage, and software in a location out of the main location grid
Replication system
Maintain both the main and backup location

The responsibility and costs can escalate, but depending on the size of the firm, it might be the most cost efficient.

The third party systems, which have built an infrastructure that is scalable, keep on growing as more clients join their list. The time to implement is a fraction of building an in-house system. Depending on the third party provider, there are several ways of getting the data:

Have the data arrive to the email server and from there delivered to the third party provider
Have the data arrive to the third party provider and then to the email server

Both methods of delivery have issues of their own. The first method requires you to be diligent about monitoring the email flow and ensure data is routed to the archiving provider – the responsibility is shifted completely to you. The second method, where the provider requires the email to be routed through their system before it arrives to your server, usually poses a different challenge where emails might get delayed at the provider.

If you decide on any of the above systems, you should try to utilize an external anti-spam solution to keep your storage usage to a minimum as well as to make sure that non-account emails do not reach your email server. These measures will keep all spam from being part of your retention data.

References and information used from the following sources: Global Relay, Zantaz, LiveOffice, NextPage, Hedge Fund Law Blog

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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 are a current hedge fund manager with questions about ERISA, please contact us or call Mr. Mallon directly at 415-868-5345. Other related hedge fund law articles include:

Purchasing an ERISA Fidelity Bond

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Information on How to Buy ERISA Bond

Purchasing an ERISA Fidelity Bond is essentially the same as purchasing a fidelity bond for an investment advisory firm and this article is meant to serve as guide as to cost and timing to secure one of these bonds.

Overview

Generally a manager will need to make sure that the bond is for 10% of the amount of the ERISA assets (subject to a minimum bond requirement of $1,000). This means that if the ERISA assets in the fund are $1MM, the manager will need to have a bond for at least $100,000.

However, the maximum bond amount with regard to any one plan is $500,000. This means that if the manager has ERISA assets in the fund (from one plan) of $6MM, the manager will only need to have a bond in the amount of $500,000 with respect to that plan.

Generally, if the manager had two plans in his fund – one with $6MM in assets and one with $2MM in assets, the manager would need to have $700,000 worth of coverage ($500,000 and $200,000 respectively). The best way to accomplish this is to have separate bonds for the separate ERISA plans invested in the fund.

Cost of ERISA Bond

A bond consultant or insurance broker will generally be able to provide a quote for the ERISA coverage needs. The costs are fairly reasonable – generally around $200 to $400 for every $100,000 of coverage per year. For newly formed management companies, the amount of the bond may be based on the personal credit score of an officer of such management company.

Application Process and Timing

ERISA bonds are fairly easy to purchase and can be delivered quickly. The application process is generally pretty basic – applications will require basic information about the management company, the fund and/or the officer(s) of the management company. Different bond companies will require different information or have different application processes or procedures.

In my experience, managers have been able to secure a bond within about a week of submitting an application. If you are a manager that is likely to receive an allocation from an ERISA plan, the best practice is to have the bond in place prior to the time that the ERISA assets are wired to the fund account. Accordingly, the manager should take care to make sure the bonding company has all necessary information in order to place the bond by the necessary time.

Other Notes

As with other sensitive areas of hedge fund law (like taxation) managers should take extra care when dealing with ERISA investors and ERISA requirements. I always recommend discussing any ERISA issues with an ERISA specialist.

Please also see our disclaimer with regard to the information presented on this website.

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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 are a current hedge fund manager with questions about ERISA, please contact us or call Mr. Mallon directly at 415-868-5345. Other related hedge fund law articles include:

Hedge Funds and Insider Trading

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Hedge Fund Manager/Trader Settles Charges with SEC

Insider trading cases pop up every now and again and most cases do not warrant highlighting – post-Boesky everyone in the securities industry is well aware that trading on inside information is illegal. However, it warrants emphasis that the SEC will crack down on hedge fund managers or traders involved with insider trading and the penalties are harsh. The individuals (including a hedge fund manager) involved in the action described in the SEC litigation release reprinted below were subject to fines and disgorgement, of course, but were also barred from the securities industry. The severity of such a penalty underscores the importance of understanding and abiding by the insider trading rules.

As noted below, trading on insider information is illegal under both civil (Section 17(a) of the 1933 act, Section 10(b) of the 1934 act, and Rule 10b-5 thereunder) and criminal laws (generally securities fraud, but depending on the facts charges may also include wire fraud and commercial bribery).

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U.S. Securities and Exchange Commission
Litigation Release No. 21244
October 8, 2009

SEC v. Mitchel S. Guttenberg, Erik R. Franklin, David M. Tavdy, Mark E. Lenowitz, Robert D. Babcock, Andrew A. Srebnik, Ken Okada, David A. Glass, Marc R. Jurman, Randi E. Collotta, Christopher K. Collotta, Q Capital Investment Partners, LP, DSJ International Resources Ltd. (d/b/a Chelsey Capital), and Jasper Capital LLC, C.A. No. 07 CV 1774 (S.D.N.Y) (PKC)

Three Defendants in Wall Street Insider Trading Ring Settle SEC Charges

The Securities and Exchange Commission announced today that on September 29, 2009, the Honorable P. Kevin Castel, United States District Judge for the Southern District of New York, entered final judgments against defendants Erik R. Franklin, Q Capital Investment Partners, LP (“Q Capital”), and David M. Tavdy, in SEC v. Guttenberg, et al., C.A. No. 07 CV 1774 (S.D.N.Y.), an insider trading case the Commission filed on March 1, 2007. The Commission’s complaint alleged illegal insider trading in connection with two related schemes in which Wall Street professionals serially traded on material, nonpublic information tipped by insiders at UBS Securities LLC (“UBS”) and Morgan Stanley & Co., Inc. (“Morgan Stanley”), in exchange for cash kickbacks.

The Commission’s complaint alleged that from 2001 through 2006, Mitchel S. Guttenberg, an executive director in the equity research department of UBS, illegally tipped material, nonpublic information concerning upcoming UBS analyst upgrades and downgrades to two Wall Street traders, Franklin and Tavdy, in exchange for sharing in the illicit profits from their trading on that information. The complaint also alleged that Franklin was a downstream tippee in another scheme in which, in 2005 and 2006, Randi Collotta, an attorney who worked in the global compliance department of Morgan Stanley, illegally tipped material, nonpublic information concerning upcoming corporate acquisitions involving Morgan Stanley’s investment banking clients.

The complaint alleged that Franklin illegally traded on the inside information for two hedge funds he managed, Lyford Cay Capital, LP and Q Capital, and in his personal accounts. Tavdy illegally traded on the inside information (i) for Andover Brokerage, LLC and Assent LLC, registered broker-dealers where Tavdy was a proprietary trader, (ii) in his own personal account, (iii) in the accounts of a relative and friend, and (iv) in the accounts of Jasper Capital LLC, a day-trading firm with which Tavdy was associated. Franklin and Tavdy also had downstream tippees who traded on the inside information. Without admitting or denying the allegations in the complaint, Franklin, Q Capital, and Tavdy settled the Commission’s insider trading charges.

Franklin and Q Capital consented to the entry of a final judgment which (i) permanently enjoins them from violating Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”), Rule 10b-5 thereunder, and Section 17(a) of the Securities Act of 1933 (“Securities Act”); and (ii) orders, on a joint and several liability basis, disgorgement of $5,400,000, with all but $290,000 waived based on a demonstrated inability to pay. In a related administrative proceeding, Franklin consented to the entry of a Commission order barring him from future association with any broker, dealer, or investment adviser. In a parallel criminal case, Franklin previously pled guilty to charges of securities fraud and conspiracy to commit securities fraud and is awaiting sentencing. U.S. v. Erik Franklin, No. 1:07-CR-164 (S.D.N.Y.).

Tavdy consented to the entry of a final judgment which (i) permanently enjoins him from violating Section 10(b) of the Exchange Act, Rule 10b-5 thereunder, and Section 17(a) of the Securities Act; and (ii) orders him to pay disgorgement of $10,300,000. In a related administrative proceeding, Tavdy consented to the entry of a Commission order barring him from future association with any broker or dealer. In a parallel criminal case, Tavdy previously pled guilty to charges of securities fraud and conspiracy to commit securities fraud, and was sentenced to 63 months in prison. U.S. v. Mitchel Guttenberg and David Tavdy, No. 1:07-CR-141 (S.D.N.Y.).

The Commission also announced that Samuel W. Childs, Jr., a former general securities principal at Assent LLC, consented to a Commission order barring him from future association with any broker or dealer, based on his criminal conviction for conspiracy to commit securities fraud, wire fraud and commercial bribery. U.S. v. Samuel W. Childs, Jr. and Laurence McKeever, No. 1:07-CR-142 (S.D.N.Y.). In that case, the criminal indictment alleged that Childs accepted bribes from traders at Assent LLC in exchange for not reporting their illegal trading to Assent management.

The Commission acknowledges the assistance and cooperation of the U.S. Attorney’s Office for the Southern District of New York and the Federal Bureau of Investigation.

For further information, see Litigation Release Nos. 20022 (March 1, 2007), 20367 (November 20, 2007), 20725 (September 18, 2008), and 21086 (June 16, 2009).

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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 are a current hedge fund manager with questions about the securities laws, please contact us or call Mr. Mallon directly at 415-868-5345. Other related hedge fund law articles include:

Raising Hedge Fund Capital | Fund of Funds Investors

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Please see below an article contributed to our website by Strategic Asset Management, a full service hedge fund administration firm providing accounting, tax, administration, compliance, web creation and marketing materials to hedge funds.

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Strategic Asset Management frequently introduces their clients to Fund of Funds seeking high quality investments and has first hand experience in the process of successfully pitching to Fund of Fund Managers.

Obtaining Capital from Fund of Funds

Many hedge fund managers find that after raising money from friends and family the next logical place is to seek investment from a Fund of Funds. When doing so it is very important that a manager have the right presentation and expectations when they approach such a fund. There are a number of stages a manager will go through with a Fund of Funds from initial contact to full investment. While there are no hard rules, the process of receiving allocations from a Fund of Funds generally consists of the following steps:

Initial Contact
Presentation
Due Diligence
Negotiation
Initial investment and monitoring
Full investment

Initial Contact

There are various ways to get the attention of a Fund of Hedge Funds manager. Arguably the best is through a direct referral by a party mutually known to both, but this is by no means the only effective way to come into contact. Fund of Funds can be met at conferences, through word of mouth, through industry organizations, by listing a fund on hedge fund databases, through third party marketers, via service providers such as the fund’s prime broker or administrator, and these are just a few of the many ways.

Preparation

Once there is an indication of interest a specific process will usually follow. Often missed, the next critical step is for the fund manager to thoroughly research the Fund of Funds that is interested in them. Managers sometimes focus so heavily on their own fund they forget that the goal is to address the needs of the manager to whom they are presenting. The manager should obtain as much literature as is available on the Fund of Funds. The offering memorandum is a good place to start. There is also nothing wrong with communicating with the Fund of Funds in advance of any meeting. Simply explain you would like to be well prepared for your meeting and want to have a full understanding of their objectives. Minimize the time you need from the Fund of Funds manager by having a concise, well prepared list of questions to ask.

With minimal homework, the fund manager can ascertain the types of strategies and investments a Fund of Funds manager is seeking. By understanding what they are seeking, the potential investment can be presented highlighting how the strategy addresses the investment goals found within their offering memorandum. You should be ready to discuss how your fund will correlate with their existing portfolio of funds. If you are unsure of what they invest in then correlate your fund to appropriate benchmarks, some of which may be very different from your fund (i.e. your fund may be a long only equity fund so the natural benchmark might be the S&P500, but you would also present your fund against such indexes as real estate, arbitrage, income funds etc if those are strategies the Fund of Fund invests in).

Depending upon the venue, you should have appropriate presentation materials. This goes well beyond the offering documents of the fund being presented. As a standard, Strategic Asset Management recommends having at the ready the last three years audited statements (if available), an up to date tear sheet, executive summary, and a comprehensive pitch book as well as a power point or other presentation. It sounds obvious but all materials need to be absolute professional quality. Missing or less than professional materials is indicative of a lack of investment of time, money and commitment by the fund manager. An investment in these materials should be done well in advance of any meeting. The lead time can be significant. At Strategic Asset Management, it often takes our design team well over a month to properly prepare these materials for a fund, and we have years of experience creating these materials.

Presentation

The most important factor when presenting to any investor, above all else, is honesty. If you are caught in a lie about anything, even something trivial, or appear evasive about a fact or issue then the opportunity is essentially over. You are there to present the facts about your investment. If it isn’t the right investment for them on its own merits then the sooner you find that out the less time that is wasted.

Beyond honesty, you should be very sure about your fund and all facts and circumstances surrounding its investment strategy. As you present it you should attempt to demonstrate how the addition of your fund affects the overall performance of the combined portfolio. Often overlooked, you should also spend some time discussing how you run your fund as a business. You may have a great investment strategy, but if the Fund of Funds feels you have difficulty running your management company as a business, they are not going to invest. On a number of occasions Strategic has received feedback from some of our Fund of Funds investors with the concern that the manger has a good investment strategy but does not have any experience running a business. If you need help from the right consultants or administrator, recognize it and get it.

It can not be stressed enough the importance of having proper professional materials. Understand that if they decide to invest in your fund they may at some point have to show your materials to THEIR key investors. If it is not to the highest standard you are already going to have difficulty getting them to invest capital.

One question Strategic is frequently asked is how to present a negative, whatever it may be, about the fund. We may be giving away a bit of a trade secret here, but our advice is the same to all. Put this negative at the very start of your presentation. What ever the negative is, the investor will find it, and at the very least you should not be attempting to hide it anyway. So what better approach than to put it right out there? Doing so then gives the Manager the opportunity to focus on the mitigating factors that reduce the impact of the negative. Also, when one quickly presents any problem with the fund it makes your audience feel you are being honest with them and the rest of what you present becomes more believable. By putting it very close to the beginning of your presentation you have the advantage of presenting it in just the way you want. You never want a prospective investor to ask about a negative before you have a chance to mention it yourself. No matter how sincere your intention, and you may have planned to highlight it mid presentation, if the Manager notes it first you are at a decided disadvantage.

Strategic assisted a successful fund manager a few years ago had the issue that he never graduated college. On our advice he opened his presentation noting that one of the interesting things about his background is how he did not possess a college degree, yet had managed to become a leader in his industry despite it. He noted all of his other partners had degrees and presented numerous published articles both he had written and that had been written about him. From there he continued with all the positive facts about the fund.

Also be aware that success in such meetings should not be gauged by whether or not they invest then and there. In another example, we introduced one of our clients, a new Manager with a fund that had been in operation for just one year to a Fund of Funds that indicated they were looking to allocate about $50 million to a strategy that was the same as was being run by our client. We created a tear sheet for him as well as other literature and put together a power point presentation. After his meeting we conducted a follow up conference and he felt the meeting did not go well because he did not walk out with an investment. While the Fund of Funds was not making any investment, they did ask to be sent performance numbers each month directly from Strategic and have audited financial statements sent as soon as available. In the analysis, this was actually a very successful first meeting. Not only did they express enough interest in the fund to invest their time monitoring them but they were at the beginning stages of the due diligence process in requesting his audited statements (which he did not yet have completed as this was his first year in operation). As an additional note, following an 18-month process, the Fund of Funds invested $35 million with this Manager in two stages.

On a final note, be aware when you are presenting to a Fund of Funds that you will probably only have 15-30 minutes to present. The best strategy is to have a high level power point presentation, and hand outs that you can either leave behind or cover in greater detail if more time is available. Also do not have too many people go to the presentation. Too many people sometimes gives the appearance of desperation.
Two should be a maximum unless there is some pressing reason to include more. Strategic has heard of times when 6 or more people went to present for what turned out to be a 15 minute time allotment.

Due Diligence

This process may seem straight forward but it actually falls under two distinct categories; pre-investment due diligence and ongoing due diligence.

Pre-investment due diligence is self explanatory. A Fund of Funds will likely put a Fund and its management team through a lengthy due diligence process that includes background checks, audited statements etc. It is in the best interest of the Manager to make this as easy as possible for them by providing all of the information they request.

Ongoing due diligence is often not given much thought by a Manager under evaluation, but the Fund of Funds will consider this critical. The Fund of Funds will evaluate the ways in which they will continue monitoring the fund once they have made an investment. They will carefully evaluate issues such as transparency, reporting, nature and verifiability of the investments, access to management and the fund’s administrator, etc. A Manager taking a proactive role in addressing how the Fund of Funds will independently verify the investment they make on an ongoing basis will give themselves an edge.

Also consider that the greater the investment a Fund of Funds intends to make the more important the ongoing due diligence becomes. It is not cost effective for a Fund of Funds to invest the time and expense in maintaining high due diligence in a small investment. Making it less expensive for a Fund of Funds to track its investment will not be a key factor, but will help the fund decide one investment over another if of equal merit on other factors.

Initial Investment and Monitoring

While not the rule, many Fund of Funds will start off with a small initial investment, with the intention of making a larger investment once the first investment performs to expectations. While there is no set benchmark, typically the initial investment may be anywhere from 5-20% of the ultimate intended amount and the trial period may be from 3 to 18 months. An evaluation will likely follow at the end of the period with the determination to either withdraw from the fund or invest more.

While performance is key, other factors are also evaluated during this time period. These factors include timeliness of reporting, including monthly statements, provision of a timely year end audit and tax statements, ease of interaction with the management team and other factors.

Negotiation

This may come at any time during the investment cycle. It may occur during the initial presentation or be brought up when the Fund of Funds is ready to make a final investment. This is where the Fund of Funds will attempt to get the Manager to lower either their management or incentive fee, if not both. A manager should be ready for such a conversation and know beforehand what they are willing to give away for a large investment. The management of the Fund of Funds knows all too well what it takes to run a fund, and can likely figure fairly accurately what your level of profit will be under varying scenarios. Every Manager makes their own negotiations but it is key to understand that this conversation is more likely than not to take place. They need to be ready to address it.

Full Investment

The final stage is when the Fund of Funds makes a large investment. Once achieved the goal is to keep them satisfied with their investment. It does not hurt to periodically review the steps made to obtain the original investment and use it as a means to build and strengthen the relationship over time. Regardless, Strategic offers a final important word of advice. Approach all investors as if they were a large fund of funds. Doing so will help you get prepared, give you practice with your presentation and in addressing questions and concerns, and allow you to address and mitigate any valid weaknesses they might expose through the process. Most important, treating each investor, even very small ones, with the same thoroughness and concern you would to the very largest investor is simply good business.

Further information can be obtained by contacting Strategic Asset Management directly. The web site is www.completehedge.com.

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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 register as an investment advisor, please contact us or call Mr. Mallon directly at 415-868-5345. Other related hedge fund law articles include:

Section 13(d) Filings and Section 13(g) Filings

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Section 13(d) of the Securities Act of 1934 requires any person who beneficially owns 5% or more of a class of equity securities of a publicly traded company to file a report with the SEC within 10 days of reaching the 5% ownership threshold. SEC Rule 13d-1 provides more detailed guidance on the reporting requirements.

Generally those persons who are subject to this rule will need to file a Schedule 13D (discussed in greater detail below) with the SEC. Because Schedule 13D is fairly detailed (the SEC estimates that it will take 14.5 hours to complete the form), the SEC has provided an alternate form and alternate reporting procedures for those persons who acquire 5% but who are generally not purchasing the securities with the purpose nor with the effect of changing or influencing the control of the issuer.

Schedule 13D

The following discussion is from the SEC website and can be found here.

Schedule 13D is commonly referred to as a “beneficial ownership report.” The term “beneficial owner” is defined under SEC rules. It includes any person who directly or indirectly shares voting power or investment power (the power to sell the security).

When a person or group of persons acquires beneficial ownership of more than 5% of a voting class of a company’s equity securities registered under Section 12 of the Securities Exchange Act of 1934, they are required to file a Schedule 13D with the SEC. (Depending upon the facts and circumstances, the person or group of persons may be eligible to file the more abbreviated Schedule 13G in lieu of Schedule 13D.)

Schedule 13D reports the acquisition and other information within ten days after the purchase. The schedule is filed with the SEC and is provided to the company that issued the securities and each exchange where the security is traded. Any material changes in the facts contained in the schedule require a prompt amendment. The schedule is often filed in connection with a tender offer.

You can find the Schedules 13D for most publicly traded companies in the SEC’s EDGAR database. You can learn how to use EDGAR to find information about companies. You can find an HTML version of the Schedule and download a PDF version for easier printing.

Schedule 13G Filing Categories

As discussed above, there is an alternative to the Schedule D filing requirement if the hedge fund manager falls within certain categories desicribed below. If the manager does fall within these categories, the manager can file the less onerous Schedule 13G.

Rule 13d-1(b) – provides that Schedule G can be filed, in lieu of filing Schedule D, within 45 days of the end of the calendar year in which the 5% threshold was exceeded if: (i) generally the person has not acquired the securities with any purpose, or with the effect of, changing or influencing the control of the issuer and (ii) the person is one of a number of enumerated persons (i.e. broker-dealers, registered investment advisors, investment companies, etc).

Rule 13d-1(c) – provides that Schedule G can be filed, in lieu of filing Schedule D, within 10 days of the date which the 5% threshold was exceeded if: (i) generally the person has not acquired the securities with any purpose, or with the effect of, changing or influencing the control of the issuer; (ii) the person is not a certain enumerated person; and (iii) the person does not directly or indirectly own 20% or more of the class of equity securities.

Rule 13d-1(d) – requires Schedule G be filed within 45 days after the end of the calendar year in which the 5% threshold was exceeded if the person meets certain requirements.

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Please contact us if you have any questions or if you are interested in starting a hedge fund. Other related hedge fund law articles include:

Bart Mallon, Esq. 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. If you are a hedge fund manager who is looking to start a hedge fund, or if you have questions about the Schedule D or Schedule G filing process, please call Mr. Mallon directly at 415-296-8510.

Raising Hedge Fund Capital is Not Easy