Hedge Fund Transparency Act of 2009 Overview
This article provides an overview of the major provisions of the Hedge Fund Transparency Act of 2009. There are two major things that the HFTA does: (1) increases regulation of hedge funds under the Investment Company Act and (2) requires hedge funds to adopt anti-money laundering programs.
Changes under the Investment Company Act
The HFTA replaces Section 3(c)(1) of the Investment Company Act with a new Section 6(a)(6). Section 3(c)(7) is replaced by new Section 6(a)(6). These new sections, which are functionally equivalent to Section 3(c)(1) and Section 3(c)(7) respectively, will exempt hedge funds from the mutual fund regulations that are found in the Investment Company Act, provided that the hedge funds comply with the provisions of Section 6(g).
Section 6(g) applies to hedge funds with assets under management (AUM) of $50 million or more. Those hedge funds which have less than $50 million of AUM will not be subject to Section 6(g). Section 6(g) requires:
1. The hedge fund manager to register with the SEC. (HFLB note: I believe the statute is not clearly written. It seems that the hedge fund itself would be required to register with the SEC which does not make sense.)
2. Maintain certain books and records as required by the SEC. This requirements is likely to look like the current books and records rule of the Investment Advisors Act (Rule 204-2), for more background please see article on Investment Advisor Compliance Information.
3. Cooperate with the SEC with regard to any request for information or examination.
4. File the following information with the SEC on a no less than annual basis:
a. The name and current address of each investor in the fund.
b. The name and current address of the primary accountant and broker of the fund.
c. An overview of the fund’s ownership structure.
d. An overview of the fund’s affiliations, if any, with financial institutions.
e. A statement of the fund’s terms (i.e. minimum investment).
f. Other information including the total number of investors and the current value of the fund’s assets.
The SEC is charged with issuing forms and guidance on the implementation of the above. Such forms and guidance must be issued within 180 days from the enactment of the HFTA.
New AML Requirements
The HFTA requires the Secretary of the Treasury (in consultations with the Chairman of the SEC and the Chairman of the CFTC) to establish AML requirements for hedge funds. The bill sets aggressive timelines for drafting and implementation of the rules.
Hedge Fund Transparency Act Analysis
In the current politically charged environment it is not surprising that a hedge fund regulation law is being contemplated. What is interesting, however, is the way that Grassley and Levin have chosen to regulate hedge funds. The prior hedge fund registration rule, promulgated by the SEC, was enacted under the Investment Advisors Act – in essence requiring hedge fund managers (and not the hedge fund itself) to register as Investment Advisors with the SEC. The Hedge Fund Transparency Act does not follow this path – instead, it regulates hedge funds under the Investment Company Act by modifying the current exemptions which hedge funds enjoy under the act. In essence the changes subject hedge funds to a kind of light version of the mutual fund regulations. In this way Congress is going past previous registration by regulating the hedge fund vehicle, as well as the hedge fund management company through the registration requirement.
While it is no surprise that regulation and registration has reached the hedge fund industry, one aspect of the bill is surprising. The act would require hedge funds to disclose the names and addresses of each investor in the fund. These names and addresses would be made available to the general public through an electronic searchable format to be developed by the SEC. Hedge fund investors are notoriously protective of their privacy and I cannot imagine that there will not be pushback by the hedge fund industry on this point.
Another consequence of investment advisor registration is that hedge fund managers (if not currently regulated by the state in which their business resides) may be subject to certain state investment advisory rules including a “notice” filing requirement. Depending on the nature of the management company’s business, some employees may need to register as investment advisor representatives at the state level which generally requires an employee to have passed the Series 65 exam. We will keep you updated on this possibility as we learn more about the HFTA over time.
Please contact us if you have any questions releted to this post or registering your management company as an investment advisor with the SEC. Other related posts include: