Dealing with Ambiguous State Securities Laws
An issue which often arises during the planning phase of the hedge fund formation process is whether certain state securities or investment advisory laws or regulations apply to a certain fact situation. Many times these issues arise in the context of investment advisor registration (especially with regard to “custody” and net worth requirements), but they can also apply to less common issues (such as spot forex registration and matters involving commodities and futures licensing). The problem is not only that the laws and regulations may not apply to a specific situation (many state laws are based on a model code which was written over 50 years ago), but also that there are no judicial or administrative actions which can provide valuable insight into how the state or the enforcement division would view a similar situation.
Unfortunately it can be very hard to receive clarification on these laws and regulations and sometimes reaching out to state regulators can be an exercise in futility. In a recent call with the California Department of Corporations (which is in charge of, among other things, administering the state securities laws) I was practically scolded by the staff attorney for first reaching out to the state to determine if they had any informal thoughts on my question. In situations where we cannot receive informal guidance from a state, the client may choose to request a no-action letter from the state with regard to their situation.
Requesting a No-Action Letter or Interpretive Opinion
NASAA, the North American Securities Administrators Association, has provided this description of no-action letters and interpretive opinions:
Many state securities regulators have the authority issue “no-action letters” in which staff confirms that a transaction carried out under a set of assumed facts will not result in a recommendation for enforcement action. Some states also issue “interpretive opinions” in which staff provides guidance by indicating how a provision of law applies to a situation presented.
Generally states will allow groups to submit either request. The request letter will include a restatement of the applicable facts and laws and an argument as to why the requested relief or opinion should be granted. The attorney will draft this letter on behalf of the manager. The manager will also need to pay a fee to the state, usually $100-$300 to receive an answer to the request letter. There is no guarantee that the state will agree with manager and grant any relief. It will usually take a minimum of 30 days to receive an answer from the state.
Unfortunately the process is both expensive and time consuming.
Fixing the Problem
There are many problems with the federalism system with regard to securities regulation. One of the biggest issues is the lack of uniformity between the state laws and the disparity between states with regard to enforcement. I posted an article yesterday about what NASAA is doing this area. I commend NASAA for taking this step forward – it will be a big improvement over the current system and hopefully will lead to more uniform laws (and application of those laws) throughout the states. However, this is not a panacea and we are unlikely to see truly fair and efficient enforcement of laws unless there is a wholesale scrapping of the current system and unfortunately even then we are still left with federalism which provides state securities commissions with powers that most do not understand how to deal with.
Ultimately this increases costs to the managers and ultimately investors.