Category Archives: Uncategorized

Hedge Fund Performance – Performance Better than Expected

A recent study by PerTrac reveals that not all hedge funds are having terrible performance returns in this volatile market environment.  The study also finds other interesting information including (i) many funds use little leverage and (ii) almost 50% of funds allow monthly redemptions (however the study does not mention the amount of funds which have used “gates” to limit redemptions). Other related hedge fund articles on Hedge Fund Law Blog include:

Continue reading

Top 11 Hedge Fund Articles on Hedge Fund Law Blog

The Hedge Fund Law Blog has been running for almost four months now (although we’ve posted articles previously written) and we appreciate all of the comments and insights from hedge fund managers and hedge fund service providers.  Our goal is to provide the most relevant legal information to hedge fund managers as possible, so please let us know if you have any questions we can answer.  Our other goal is to help managers establish their hedge funds so please contact us if you are thinking of starting a fund.

The following are the most popular articles on the hedge fund law blog as today:

  1. What Licenses do you need to Start A Hedge Fund?
  2. What is a Qualified Purchaser?
  3. How to register as a CPO or a CTA
  4. Hedge Fund Redemption and the Gate Provision
  5. Blue Sky Laws and Filings for Hedge Fund
  6. What is an Accredited Investor?
  7. Hedge Fund Offering Documents
  8. The Series 65 Exam
  9. Hedge Fund Formation Legal Fees
  10. Real Estate Hedge Fund Structure
  11. What Expenses Does a Hedge Fund Pay For?

Please contact us if you want to see articles on other topics or if you would like to start a hedge fund.

SEC Brings Action Against Unregistered Owner of Broker-Dealer

The SEC recently brought an action against the principal of a broker dealer for not being registered as a principal.  There are many instances where members of the investment management are operating without having the proper registrations or licenses and many times these people think that they can remain under the radar as long as they aren’t acting fraudulently.  In this instance the principal was not able to remain under the radar. Continue reading

Life Settlement Hedge Funds – Structural Considerations

Because life settlements are a unique investment which has characteristics not associated with other types of investments creative managers can choose to structure a life settlement hedge fund in many different ways.  This article will detail (i) the potential life settlement hedge fund structures, (ii) life settlement investment program considerations, and (iii) a brief overview of life settlement taxation issues.  Continue reading

CFTC Chairman Lukken Advocates Completely Scrapping Current Regulatory System

In a speech given yesterday, CFTC Chairman Walker Lukken announced that he will step down as Chairman of the CFTC upon inauguration of President-elect Obama.  Chairman Lukken also advocated completely the scrapping of the current regulatory structure in favor of a “bold, new” regulatory system.  It is unclear how these comments will be interpreted by the CFTC, especially with regard to the release of the proposed forex registration rules.  Continue reading

Capital Introduction for Hedge Funds

Capital introduction is the term used to describe investor referrals to hedge funds by prime brokers.  Many prime brokers and even mini-prime brokers will provide capital introduction services to their customers.  Typically this is done as a favor to the hedge fund and does not carry the high costs of a third party marketer.  However, unlike a third party marketer, the prime broker is probably not actively looking for investors for the fund and therefore actual capital introductions may be rare, depending on a number of factors including the individual broker and the investment strategy.  Continue reading

State Registered Investment Advisors and Hedge Funds

Hedge fund managers which are registered with their state of residence as investment advisors need to be very aware of their state investment advisory rules.  While many state securities divisions do not pay attention to hedge funds, there are many states which are aware of hedge funds and understand how the state investment advisory rules apply to hedge funds.  States which I have found particularly knowledgeable about hedge funds include: Colorado, Utah, California and Washington.  There are other states which are basically on heightened alert for registration applications from hedge fund managers. Continue reading

Conversion of a 3(c)(1) hedge fund to a 3(c)(7) hedge fund

Below is a question we received through the comment portion of this blog:

A fund we participate in converted in mid-2007 from a 3(c)(1) fund to a 3(c)(7) fund. Upon receipt of the K-1 for the year, there was a large realized short-term capital gain realized with a large corresponding unrealized capital loss. When I asked about what triggered the short-term gain, I was told that it related to the conversion to 3(c)(7) status. Is there anything within the conversion process which would inherently trigger recognition of a capital gain, especially short-term? Thanks for any insight you may be able to share with me on this.

First, let’s examine what it means to “convert” from a 3(c)(1) hedge fund to a 3(c)(7) hedge fund.  There is no form that a hedge fund submits to the government or any agency which declares whether they are a 3(c)(1) hedge fund or a 3(c)(7) hedge fund.  There is no sort of internal declaration like with certain IRS rules.

The 3(c)(1) structure limits the number of investors to 99, the 3(c)(7) structure does not limit the number of investors, but limits the type of investors.  So, to “convert,” a hedge fund would just make sure that all of its investors were qualified purchasers and then have more than 99 of them.  Therefore, when a hedge fund “converts” from a 3(c)(1) hedge fund to a 3(c)(7) hedge fund, the fund is basically informing investors that the number and “type” of investor in the hedge fund (a limited partnership or limited liability company) will be changing.  (Please also note that a 3(c)(7) hedge fund with 99 or less investors would also be exempt from registration under the Investment Company Act as a 3(c)(1) hedge fund. )

When the conversion takes place, the fund would redeem those investors who are not qualified purchasers (the offering documents will typically provide managers with this unilateral authority).  In order to have the cash on hand to mandatorily redeem the investors, the fund may have to liquidate some underlying positions.  Based on the holding period of the underlying positions, the gain or loss may be long-term or short-term gain or loss, each of which has different tax consequences to investors in the hedge fund.

At the end of the year, the hedge fund accountant will prepare K-1s for all investors in the partnership which will include each investors allocation of gains and losses (realized and unrealized) during the year.  The manner in which these gains and losses are allocated is generally dictated by the hedge fund’s offering documents, which generally allow the manager wide latitude in how to make allocations.

With regard to the specific situation above, I cannot answer this question because it depends on the facts.  One thing an investor in this situation may want to do is review the audited financial statements from the hedge fund and then determine if an allocation was made which was incorrect – an accountant should be able to do this.  If there is still a question on the allocation, the investor should discuss the issue with the hedge fund manager in conjunction with the manager’s auditor or accountant.  From there the investor should be able to get further clarity on the issue.

Please note that the above is not legal advice and please read our disclaimer.  Please also feel free to contact us if you have further questions.  Other related HFLB articles include:

Pooled Investment Vehicles – Non-Traditional Hedge Fund Strategies

The term “hedge fund” is really a misnomer as most hedge funds are not hedged.  A better term would be pooled investment vehicle.  Traditional types of pooled investment vehicle structures include hedge funds, private equity funds, venture capital funds, real estate funds, and “hybrid” funds (funds which combine components of the above).

This article is going to discuss other types of non-traditional hedge funds, that is hedge funds which do not fall within the typical types of hedge fund securities trading strategies (long/short equity, multi-strategy, global macro, fixed income, equity market neutral, managed futures, etc). As more people become familiar with hedge funds and become interested in investing in them, managers will begin to create funds to fit specific demographics.  The following are interesting projects which can be accomplished through the hedge fund (or pooled investment vehicle) structure:

Green Hedge Funds – in a vein similar to the Vice Fund*, hedge funds can concentrate their investments in any specific hot area. Green companies is currently a hot area and many people are already calling a bubble in “green” companies, at least in the private equity space.  According to this article by Richard Wilson, mandates at institutional level to invest in “green” hedge funds are expected to significantly increase in the coming years.

Horse Racing Hedge Funds – there are two ways that a fund like this would work.  First, the hedge fund can actually pool investor money and then the manager would place bets on various horses through various betting establishments.  With a fund like this the sponsor would need to make sure to disclose the exact nature of the program so that any legal or gambling issues could be vetted before the hedge fund launch.  Second, the hedge fund could buy racing horses and then race them for profit.  There are already these types of pooled vehicles out there and they are usually have a private equity structure with capital calls.

Gambling or Online Gambling Hedge Funds – with the rise in popularity of Texas Hold-em on television and the proliferation of online gambling there has been discussion of hedge funds devoted to making money from this phenomenon.  Basically this would be done through pooling money and then allocating to traders (live or online) who would then play with money.  With a fund like this there are many issues, not the least of which is the illegality of gambling in much of the US and online.  It is likely that a gambling attorney would need to be brought in to opine on the issue of the legality of such a fund.

Sports Betting Hedge Fund – like the gambling hedge fund, sports betting presents a very attractive opportunity for potential hedge fund managers.  A couple of years back Mark Cuban discussed the idea of a sports betting hedge fund on his blog (blog post).  While his fund never got off the ground, I have heard of other potential hedge fund sponsors trying to get a fund like this launched.  I have not yet heard of a successful fund like this, but I think it is just a matter of time.

Lottery Hedge Fund – about a year and a half ago I had the idea of starting a lottery hedge fund which would pool money to buy a large amount (or all possible number combinations) of number combinations at one of the very large lottery drawings.  While it is feasible to create a fund to do this, there are many technical issues which would need to be resolved if a fund like this was to launch.

Charitable Hedge Funds – while not necessarily having a different strategy from traditional hedge funds, these charitable hedge funds would take a portion of their profits and devote them to charitable causes.  Presumably the sponsor of a charitable hedge fund would create such a fund for his network of friends and family, all of whom would have similar views on the nature of the charitable donation.

Shariah Compliant Hedge Funds – such funds have become more over the past couple of years and are expected to continue such growth in the future.

Other Issues – in general, establishing a non-traditional hedge fund or pooled investment vehicle will involve the same basic steps as forming a hedge fund (see Start Up Hedge Fund Timeline).  The key issue is what type of assets the fund will buy and sell.  The nature of the assets will necessarily drive the structure.  These are they types of issues you would discuss with your attorney, include whether the manager will need to be registered as an investment advisor. Other articles of interest may include:

* The Vice Fund is a mutal fund which invests in domestic and foreign companies engaged in the aerospace and defense industries, owners and operators, gaming facilities as well as manufacturers of gaming equipment, manufactures of tobacco products and producers of alcoholic beverages.  The website can be found here.