CFTC Issues Report on NFA Registration Process

Report Indicates Many Areas Needing Improvement

The CFTC registration process is handled almost exclusively by the NFA and last year the CFTC audited the NFA to see how successful the organization was at conducting the registration process.  The audit report, issued this week, indicates that the NFA needs to improve on many different areas.  One of the most important items which was mentioned a number of times in the report is that the NFA has not standardized the registration process in some areas.

While the CFTC report focuses only on the registration process, there are a number of other issues with the NFA which should have been highlighted.  The first and most important for many managed futures professionals, is the lack of standardization with respect to the disclosure document review process.  CTAs and CPOs both need to have their disclosure documents reviewed by the NFA and during this review process, depending on which examiner is assigned to the review, the process can be relatively straight-forward or quite difficult.  This obviously increases the time before the disclosure document is approved and most likely increases the legal costs involved.  Because our firm completes a number of CTA and CPO registrations each month we see this first hand.

As an anecdote, I have one CPO group who has two separate programs represented by two separate disclosure documents.  The documents are exactly the same except for slightly different investment programs.  These documents went to the NFA for review at the same time and were assigned to two different examiners.  Each deficiency letter came back with about 16 items that needed to be changed for the next draft – however, only 5 were the same!  The fact that two almost exactly same documents receive such disparate treatment is amazing and shows no standardization.  It also perfectly illustrates the oft said statement that “it depends on who you get” when discussing how long it will take for the disclosure documents to be approved.

Below I have included some of the statements I found in the report as well as the CFTC notice.

CFTC Notice: Press Release

The full report: CFTC Report on NFA Registration Process

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Quotes from the Report

The Registration Department does not have a procedures manual that documents all of the procedures followed in processing registrations and withdrawals.

The Registration Department’s procedures manual for the Information Center is, in various areas, incomplete, inconsistent and/or outdated.

[T]he Registration Department tends to concentrate responsibility in a small number of staff members and to depend heavily on these staff members’ institutional knowledge in executing certain registration processing procedures. … This reliance on key persons’ institutional knowledge, coupled with the sparseness of the Registration Department’s documented procedures … interjects an unnecessary level of key person risk to the Registration Department.

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June 24, 2010

CFTC Releases Report on the Registration Program of the NFA

Washington, DC – The Commodity Futures Trading Commission (CFTC) Division of Clearing and Intermediary Oversight (Division) today notified the National Futures Association (NFA) of the results of the Division’s “Report on the Registration Program of the NFA”. In the Report, the Division assessed whether the NFA has sufficient procedures to execute the Commission’s delegated registration and fitness functions.

The Division found that NFA has sufficient procedures to execute the Commission’s delegated functions with respect to the vast majority of registrants. However, the Division also identified nine areas in which the Commission’s and/or NFA’s procedures must be improved.

Copies of the Report are available the Commission’s website at www.cftc.gov.
Last Updated: June 24, 2010

Media Contacts

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202-418-5174

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202-418-5085

Office of Public Affairs

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Cole-Frieman & Mallon LLP provides comprehensive hedge fund start up and regulatory support for commodity pool operators.  Bart Mallon, Esq. can be reached directly at 415-868-5345.

Massachusetts RIA Net Worth Reminder

Today we received an email reminder from the Massachusetts Securities Division with respect to investment adviser minimum financial requirements.  Essentially hedge fund managers registered as investment advisers with Massachusetts will either need to (i) post a $10,000 surety bond or (ii) establish a separate account with $10,000 and maintain a positve net worth.  Managers who choose to establish the separate account need to provide the Securities Division with a balance sheet on an annual basis.

The email stated:

Please see the attached reminder of the Division’s policy regarding minimum financial requirements for certain Massachusetts-based registered investment advisers.  Please call the Division if you have any questions.

The attachment stated:

POLICY STATEMENT

DEMONSTRATION OF POSITIVE NET WORTH FOR CERTAIN MASSACHUSETTS-BASED, STATE-REGISTERED INVESTMENT ADVISERS

The Massachusetts Securities Division (the “Division”) hereby provides this reminder to certain investment advisers described as follows:  those (1) who are required to be registered with the Division; and (2) whose principal place of business is in Massachusetts; and (3) who (i) exercise investment or brokerage discretion, (ii) have custody of clients’ funds or securities, or (iii) require the payment of more than $500 in advisory fees more than 6 months in advance.  The regulation found at 950 CMR 12.205(5) requires such investment advisers to either (a) post a $10,000 surety bond, or (b) establish a separate, segregated account of $5,000 [for (i) above] or $10,000 [for (ii) and/or (iii) above] and maintain at all times a positive net worth.  The Division requires that those investment advisers who choose option (b) demonstrate, on an annual basis, their positive net worth with a certified balance sheet prepared in accordance with generally accepted accounting principles applied on a consistent basis.  See 950 CMR 14.412(C).

If you are registered as an investment adviser in Massachusetts and have any questions, please feel free to contact us at Mallon P.C.

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Other related hedge fund law articles include:

Cole-Frieman & Mallon LLP provides comprehensive hedge fund start up and regulatory support for managers and registered investment advisers.  Bart Mallon, Esq. can be reached directly at 415-868-5345.

Hedge Fund Registration

Hedge Fund Registration Overview

After the Wall Street Reform and Consumer Protection Act, hedge funds will be required to register.  When the bill is signed into law, we will update this page with all of the information on the new registration requirement (which will apply to private equity funds as well).

More forthcoming…

Federal Cap and Trade System and RPS Standards on the Horizon

On June 5, 2010, the South Asian Bar Association hosted the 2010 NAPABA Western Regional Conference in San Francisco.  One panel, entitled “Green 2 Green: Carbon Credits, Renewable Energy Certificates and the New Markets Driving the Clean Energy Economy,” addressed the failure of existing markets to price carbon and other greenhouse gas (GHG) emissions and discussed the potential for market-based mechanisms to solve the problem.  This panel was particularly timely because of recent congressional discussion with respect to the EPA potentially regulating GHG.  Recently, the Senate failed to pass a resolution (47-53) blocking this regulatory authority under the Clean Air Act (for more information see this article).  The options are to have Congress or the EPA set the rules for emissions reduction.

The panel included representatives from the California Public Utilities Commission, Pacific Gas & Electric Company, and from a law firm.  In addition to discussing market-based mechanisms to promote renewable and clean energy, the panelists also informed the audience about GHG caps generally, carbon credits, renewable portfolio standards, and renewable energy certificates.

So why do we need market-based mechanisms?

The U.S. has traditionally relied heavily on fossil-fuel powered generating facilities.  These facilities provide cheap electricity for consumers, but at the expense of the environment.  Without a price for carbon emissions, there is no incentive to construct renewable energy facilities or to develop more clean energy sources.  The resulting consequences on our climate and economy are dire.  Many people believe that now is the time for federal and state governments to act and to develop the regulatory and market frameworks necessary to address this problem.

From a policy perspective, greater integration of renewable energy sources will:

  • increase the reliability of our power supply
  • protect public health and the environment
  • promote energy independence
  • promote economic efficiency
  • promote national security
  • promote the stability of electricity prices
  • promote the sustainability of economic development
  • create domestic jobs

Most interestingly, the panel discussed two key market-based mechanisms to promote renewable and clean energy: a cap and trade system and RPS goals.

What are the benefits of market-based mechanisms?

The discussion started with questions about the advantages of a cap and trade system and RPS goals over tax-based approaches and straight government mandates.  In particular, the issue is whether the public can trust new market-based mechanisms given the recent economic downturn.  The benefits of a cap and trade system are:

  • certainty as to the amount of reductions that occur,
  • flexibility for businesses to be innovative, and
  • flexibility for businesses to find the most cost-effective way to meet emissions limits, since policymakers do not always know what the lowest cost will be.

While the benefit of a carbon tax is price certainty, it is extremely difficult to determine what tax levels really reduce carbon emissions and encourage the construction of modern renewable energy facilities.  Generally, a carbon tax disincentivises the continued production of energy from traditional-fuel powered plants, but excessive taxes could also cripple economic development by unduly raising the cost of electricity and disproportionately impacting coal states.

Tax incentives, in contrast, are a great supplement to the new market-based mechanisms being developed.  Such incentives include accelerated depreciation, RECs, cash grants for renewable energy leases, production tax credits, and investment tax credits.  Policymakers need to focus on integrating a flexible cap and trade framework within a scheme of tax incentives that will ultimately result in low-cost solutions.

How does a cap and trade (carbon trading) system work?

Carbon trading is a market-based mechanism that reduces GHG emissions by allowing parties to trade emissions under a cap and trade system, or trade credits that pay for or offset GHG reductions.

For a carbon trading market to thrive, many argue that an emissions cap must be set by a governing body such as a regulatory or private agency.  The market-based framework then allows trading activity to take place.  The following are important elements:

  • The emissions cap should be decreased gradually to achieve real greenhouse gas reductions.
  • The market-based framework can function as an auction, a trading system, or a regulated market for participants to buy, sell or trade emissions allowances.
  • Proceeds can then be used to research and develop other energy efficiency and renewable energy (e.g., wind, solar, geothermal, biomass, etc.) solutions which helps companies meet their compliance obligations and spurs more investment opportunities.

What are RPS standards and how does it relate to carbon trading?

A renewable portfolio standard (RPS) generally refers to a regulation that encourages electric supply companies (such as PG&E) to produce a specific percentage of their electricity from renewable energy sources.  In California, for example, the RPS requirement is 20% by 2010.  Governor Schwartzeneggar also signed an executive order in 2008 mandating 33% by 2020.

When a certified renewable generator produces renewable electricity, it earns a certificate (REC) that can be sold along with the produced electricity to the supply company.  The supply company demonstrates its compliance with the RPS requirement with these RECs.  RPS compliance relies on the market and therefore allows more price competition based on factors such as renewable energy source type and project size.  This in turn results in more energy efficiency projects that produce renewable energy at the lowest cost–making it more competitive with cheaper, traditional fossil-fuel sources.

RPS requirements encourage the development of more renewable energy projects.  RECs can be traded or sold on the market and as companies reduce their GHG emissions, emissions allowances can also be made available on the market for trading.

Important Carbon Trading Frameworks and Legislation

Regional exchanges –important regional exchanges include:

Regional Greenhouse Gas Initiative (RGGI) – the RGGI is the first mandatory, market-based effort to reduce green house gas emissions in the United States.  The 10 participating states in the Northeastern and Mid-Atlantic states include Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont.  Emissions allowances are sold through auctions and the target goal is to reduce CO2 emissions from the power sector 10% by 2018.

California – The California Air Resources Board, pursuant to AB 32, intends to develop a cap and trade system by 2012 for California.  AB 32 requires the reduction of GHG emissions to 1990 levels by the year 2020 and is similar to the Kyoto Protocol approach and standards.

Chicago Climate Exchange (CCX) – The CCX is a U.S.-based reduction and trading system.  Its participants include various major corporations including Ford, DuPont, and Motorola, as well as several universities including UC San Diego, Tufts University, Michigan State University, and University of Minnesota.  The CCX also supports renewable energy projects generated by offsets across North America and Brazil.  The Financial Industry Regulatory Authority (FINRA) acts as the independent, third party verification for the Chicago Climate Exchange even though the exchange is not regulated.  FINRA’s role is to verify and review emissions reports and offset projects, as well as monitor its trading activity.

Western Climate Initiative (WCI) – The WCI started in the western region of the United States and has spread across the United States and Canada.  Its U.S. partners include California, Montana, New Mexico, Oregon, Utah, and Washington, while its Canadian partners include British Columbia, Manitoba, Ontario, and Quebec.  Its observers include Alaska, Colorado, Idaho, Kansas, Nevada, and Wyoming, as well as various Mexican states.  The Initiative’s cap and trade proposal would help reduce carbon emissions from major sources of carbon emitters and also alleviate economic impacts on those regulated sources.  The program would begin in 2012.

Congressional Action

Currently, the federal government is actively working on energy issues, including the development of a cap and trade system.  The following summary is provided here to a comparison of the following legislation.

  • The Clean Energy Jobs and American Power Act (S. 1733 or CEJAPA or Power Act) was passed by the Senate Environment and Public Works Committee on November 5, 2009. This bill would create a federal GHG cap and trade system. The cap and trade program would be administered by the EPA and carbon market oversight would be delegated to the Commodity Futures Exchange Commission (CFTC) alone.
  • The American Clean Energy and Security Act of 2009 (HR 2454 or ACES) passed the House on June 26, 2009 by a vote of 219 to 212. ACES combines standards and incentives to promote clean energy and energy efficiency technologies with a firm cap on GHG emissions.  The cap and trade program would be administered by the EPA and deletes carbon market oversight to the Federal Energy Regulatory Commission and the CFTC.
  • The American Clean Energy Leadership Act (S. 1462 or ACELA) passed the Senate Energy and Natural Resources Committee on June 17, 2009 by a vote of 15 to 8. ACELA is an energy bill that incorporates many policies similar to those in ACES; the Senate is constructing a climate component to add to the bill, but currently ACELA does not include provisions to cap and trade greenhouse gas emissions. It does, however create federal RPS stnadards.

Cap and trade is not new.  What are some lessons learned?

As mentioned above, cap and trade is not new and the federal government is currently developing a cap and trade system, as evidenced in the Power Act.  The California Air Resources Board, pursuant to AB 32, intends to develop a cap and trade system by 2012 for California.  With all this legislative momentum, what are some of the lessons learned from the existing regional cap and trade frameworks mentioned above?

One panelist discussed the RGGI.  Unfortunately, the GHG prices are low because not all states connected to the grid participate in the program.  Power is therefore available outside of the RGGI framework and available at below-premium prices.  California needs to keep in mind that it can regulate prices within the state, but cannot regulate out-of-state power plants and the prices that are set.

Another panelist focused on the Clean Development Mechanisms of the Kyoto Protocol.  This mechanism encourages developed nations to invest in emissions reductions in developing nations.  But, as in any market-based system, one problem is gaming.  It is important that when the federal government develops a cap and trade system, it creates an infrastructure that guards against that possibility (e.g., ensure that third-party verification and certification processes are in place to ensure that reductions are legitimate).  Any cap and trade system must have built-in processes that preserve the integrity of the transactions that occur and the value of the underlying assets.

What does the future hold for the carbon trading market?

For the most part, the panelists seemed optimistic about a federal cap and trade system.  Regulatory uncertainty freezes markets and investments.  Once the government puts the appropriate regulatory framework in place, businesses are likely to have the confidence to make more investments, create more jobs, and spur the green economy.  While the federal government has unsuccessfully attempted to implement a cap and trade system in the past, this administration seems more receptive to passing comprehensive energy and climate legislation.

What will this mean for the carbon markets and as a result, the alternative investment industry?  If passed, the Power Act in its current form will allow entities to meet their emissions targets by submitting tradable emissions allowances.  It will grant the CFTC authority to regulate the GHG trading markets and amend the Commodity Exchange Act to regulate the trading of GHG instruments (including emission allowances, offset credits, and derivatives) in a manner similar to how agricultural commodities are regulated.  In particular, all trading of GHG instruments must take place on an exchange or be cleared through a carbon clearing organization.  Participation in the trading of allowances will be limited to CFTC-regulated carbon market participants and registered compliance entities.  Participants of derivative trading is not limited.  The Power Act would also prohibit short sales and sets position limits to prevent excessive speculation.  It is yet to be determined whether these provisions will restrict access to the market or adversely affect market liquidity.

The success of carbon trading in the investment management industry will depend greatly on the regulations put in place for the carbon markets.  It will be interesting to watch how the federal government and the CFTC work to create the framework for carbon and emissions trading.

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Cole-Frieman & Mallon LLP is able to provide the following legal services to both domestic and offshore hedge funds:

  • Offer investment advice to funds interested in the purchase of carbon offsets
  • Provide legal advice to clients in regards to carbon market regulations
  • Assist hedge funds with the creation of investment projects that generate carbon credits and offsets
  • Advise on marketing strategies for those clients interested in selling their carbon offsets or promoting their renewable energy projects
  • Provide networking opportunities with other lawyers engaged in the carbon market field
  • Advise clients on the policies and risks involved with credit trading

For more information, please call Bart Mallon Esq. at 415-868-5345.

CTA and CPO Registration Form 8-R Changes

Fingerprint Information Now Required in Form 8-R

As discussed below, the information which is included on an AP or Principal’s Fingerprint Cards (sex, race, eye color, etc) will now be part of the NFA Form 8-R.  Additionally, the NFA will now make certain notifications to NFA member firms with respect to their application.

The full notice from the NFA is reprinted below.

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Fingerprint Card Demographic Information and Email Notifications Enhancements

The Spring 2010 NFA Member Newsletter reported an Online Registration System (ORS) enhancement that will require fingerprint card demographic information (such as sex, race, eye color, hair color, height and weight) be entered on the Form 8-R application. This enhancement is scheduled to be deployed on June 17, 2010. The fingerprint card demographic information is used to conduct a criminal background check with the U.S. Federal Bureau of Investigations (FBI). Because this information is already collected on the FBI fingerprint card, it may be helpful to have the fingerprint card available when completing the Form 8-R application.

Collecting this information in the Form 8-R applications will allow NFA to electronically submit fingerprint cards to the FBI in a timelier manner by downloading the fingerprint card demographic information directly from the 8-R form.

A view and update page are also being developed to display and update, if necessary, the fingerprint card demographic information. These pages can be accessed using the “View Registration Information” or “Update/Withdraw Registration Information” menu under the “Personal Profile” section.

For Form 8-R applications completed prior to the implementation of this enhancement, the demographic fields on the view and update pages will be blank. However, this information is not required to be completed until such time as a new Form 8-R application is filed.

In addition to the fingerprint card demographic information enhancement, we have also added two new notification types to the NFA E-mail Notification Service:

  1. Firm or Individual registered, temporary licensed, approved or conditioned
  2. Firm Account Balance is below $1000

The Security Manager of the firm can add the new notification types for existing email recipients or can add and/or delete recipient(s) to receive email notifications by clicking on “NFA E-mail Notification Service” under the “Security” tab in ORS.

If you have any questions concerning this matter, please contact the Information Center by phone at 312-781-1410 or 800-621-3570 or send an email to [email protected]. Representatives are available Monday through Friday from 8:00 a.m. to 5:00 p.m. CST.

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Other related hedge fund law articles:

Cole-Frieman & Mallon LLP provides comprehensive hedge fund start up and regulatory support for commodity pool operators.  Bart Mallon, Esq. can be reached directly at 415-868-5345.

Positive 2010 Outlook for Investors and Hedge Funds

In March, Deutsche Bank’s Hedge Fund Capital Group presented a closer look at the current status of the hedge fund industry in its “2010 Alternative Investment Survey” report (see press release).  The report focuses on responses from 606 investors.  42% of the respondents were Fund of Funds, 21% were asset management companies, 12% were family offices/high net worth individuals, and the remaining group consisted of corporations, foundations and endowments, insurance companies, investment consultants, private banks, and private and public pensions.

This article summarizes the 2010 outlook from investors and the increasing relevance of the seeding business.  In particular, it presents the strategies being favored/disfavored, regional markets being favored/disfavored, predicted allocation amounts, and other information related to due diligence and reasons for investing in hedge funds.

For the most part, investors are optimistic about 2010 and money is flowing back into the industry.  Strategies for this year reflect concerns about the lack of transparency and protection in uncertain markets in 2008 and 2009.  Investors are making choices that ride on renewed confidence in the industry and that favor reduced volatility.

Investors

Investors Generally Optimistic for the Future

Investor sentiment about how the hedge fund industry will fare in 2010 has greatly improved.  In 2009, 41% predicted net asset outflows of over $150 billion and 30% predicted outflows of over $200 billion.  In contrast, 73% of investors surveyed this year predict net asset inflows of over $100 billion and fewer than 2% are predicting outflows.  Consistent with those percentages, investors are also predicting a positive 2010 performance on the leading indices (S&P500, MSCI World, and MSCI EM).

Favored and Disfavored Strategies

Surveyed investors predict that some of the best strategies for 2010 are global macro, equity long/short, distressed, and event driven.  In fact, equity long/short makes up the largest portion of hedge fund assets.  51% of investors plan to add assets to this strategy (an increase from 31% in 2009), 38% plan to maintain their assets in the strategy, and 5% plan to reduce assets.  Event driven also performed very well in 2009 with 42% of surveyed investors now planning to add assets to this strategy and 41% planning to maintain their assets.  Investor interest in merger arbitrage has also jumped greatly from 6% intending to increase exposure to 26% in 2010.  While 29% of investors planned to reduce exposure in 2009, only 4% now seek to reduce exposure.

The strategies that are anticipated to perform the worst in 2010 include cash, volatility arbitrage, CTA, convertible arbitrage, market neutral, and asset backed securities.  Market neutral was one of the worst strategies for 2009 when other strategies were bouncing back.  The percentage of investors seeking to add assets to this strategy has decreased from 26% in 2008 to only 17% this year.  In terms of cash allocation, only 3% of investors plan to increase exposure (a drop from 13% last year), 43% plan to maintain their assets, and a whopping 32% plan to reduce their assets.

Regional Allocations

Overall, investors predict that the Asia region (excluding Japan) will perform the best in 2010 and the Western European region will perform the worst.  This year, 45% of investors plan to invest in Asian (excluding Japan) funds–a significant jump from only 18% in 2009.  Interest in investing in Chinese and Japanese funds is high compared with other countries.  The percentage of investors that do not plan to allocate to each country is 22% and 23% respectively. In contrast, 52% of investors do not plan to allocate in Russia, 44% do not plan to allocate in Eastern and Central Europe (excluding Russia), and 37% of investors do not plan to allocate in India.

Surveyed investors expressed a similar interest in the Emerging Markets, with 38% wanting to increase exposure, 38% wanting to maintain exposure, and only 6% wanting to reduce exposure.  These findings are in response to the strong 2009 returns after a rough 2008 that saw many Emerging Market funds close.  In contrast, investors anticipate the Western European region will not fare well–with 56% seeking to maintain their current assets, 23% seeking to increase exposure, and 12% seeking to reduce exposure.

Hedge Funds

Investors are increasingly investing in hedge funds.  In fact, 76% of consultants surveyed indicated that their clients were increasing allocations to this investment vehicle.   When asked what the main benefit of investing in hedge funds was, 68% of the investors surveyed indicated that hedge funds provide “better risk adjusted returns.”  This benefit is particularly valuable in a volatile and uncertain market.   “Diversification,” which was previously the number one answer, remains a close second.

Amount Currently Invested in Hedge Funds

Currently, over 50% of surveyed investors still manage less than $1 billion in hedge funds.  The Hedge Fund Capital Group expressed concern about this figure, explaining that more than $1 billion AUM is often necessary to build the institutional infrastructure for greater investments and to perform vigorous due diligence.  On the other side of the range, the number of investors with under $100 million invested in hedge funds is decreasing.  The Hedge Fund Capital Group explains that these funds have likely simply shut down due to the economy and inability to attract institutional investors, pension funds, endowments, and other larger investors.

A majority of surveyed investors have track records of investing in hedge funds for longer than five years (only 17% have less than 5 years), with nearly all of those with 15 or more years of experience based in North America, compared with their European and Asian investor bases.

Hedge Fund Managers

Since 2008 and in part due to the market, investors have been reducing the number of managers they use.  They have also started disfavoring portfolios that are too diverse due to the fact that due diligence requirements are now more costly and timely.  In addition to reducing the number of managers investors place their money with, investors are also preferring to place their money in larger hedge funds with AUMs of over $1 billion.  Those investors focused on managers with smaller AUMs are generally based in Asia or Europe.

Allocations

In 2009, most investors made 5-10 initial allocations.  Those investors who made over 10 initial allocations in 2009 were concentrated in Europe–a total of 54%.  But in terms of follow-on allocations, U.S. based investors led the pack, with 50% making over 30 follow-on allocations.

Redemptions

Despite generally positive performance last year, investors are continuing to make redemptions–the Hedge Fund Capital Group explains this as a result of those managers who have not performed during the market bounce or those that froze assets and their investors are only now able to begin redeeming.  The investors that have made the most partial redemptions–30 or more in the last year, were primarily fund of funds and private banks.  This finding is consistent with the perception that these investors are performance chasers.

Available Cash to Allocate

Compared with 2009, surveyed investors are generally holding less cash.  50% of investors are either fully invested or only holding 0-5% cash.  But the good news is that 29% have 10% or more cash available for investment.

Following up on the previous findings, surveyed investors are confident for 2010.  Those that predict they will be fully invested in the next six months increased from 18% to 21%.  Those that predict they will hold 0-5% cash increased from 32% to 39%, demonstrating a goal of investing more.

Hedge Fund Managers

Challenges and Assessing a Manager

In terms of the biggest challenges investors faced in 2009 and 2010, “selecting and monitoring manager” posed the biggest challenge, with “lack of transparency” also ranking highly.  This year, “investments frozen with a manager” was a new category and also ranked very high.  When assessing a hedge fund manager, investors used to cite the 3Ps: performance, philosophy, and pedigree.   While those qualities continue to be important, investors have increasingly focused on risk management and transparency.     This reflects greater caution and less reliance merely on manager pedigree.  Performance ranks first, risk management ranks second, and philosophy ranks third in terms of importance.

Length of Due Diligence Process

The due diligence process has gotten more costly and timely.  For most investors–over 50%, need 3-6 months to conduct due diligence of a manager.  This statistic is consistent over the last three years.  The percentage of investors who can complete this in less than 3 months has increased slightly and so has the percentage of those who need 7-12 months.

Seeding Business

The institutionalization of hedge fund investing is making it increasingly difficult for new launches to attract investors. While a minimum of $50 million AUM was once sufficient, the critical minimum is now $100 million.  Emerging managers are therefore increasingly turning to the seeding business “to overcome the hurdle of reaching the critical size to gain visibility and profitability.”  17% of the investors surveyed seed managers.  The majority of seeders are U.S. based–59%, with 30% in Europe, 9% in Asia, and 2% in Australia.  Funds of funds are the primary investors that seed, with asset management companies and high net worth individuals following.

45% of fund of funds seed managers, followed 26% of asset management companies and 17% of family office/high net worth individuals.

There are three seeding business models: (1) revenue split, (2) equity split, and (3) platform.  Under the revenue split model, seeders provide capital in exchange for participation in management and incentive fees.  Nearly half of seeders surveyed use this model.  Seeders provide capital in exchange for equity ownership and generally take active partnership role under the equity split model.  19% of seeders surveyed adopt that model.  Finally, under the platform model, established hedge funds and financial institutions provide capital and “turnkey” solutions in exchange for profit share.  Only 9% of seeders surveyed adopt the platform model.  Before a manager turns to the seeding business, it should consider the support offered by the seeder, including the form of operations, risk management, marketing, strategic assistance and business development, and compliance and legal support.  In addition to providing funding, well-respected seeders can also provide reputational capital.

For the most part, the average seeding ticket ranges from $25 million to $75 million, with fewer under $10 million and even fewer greater than $100 million.

Consultants

6% of the surveyed investors consider themselves to be investment consultants.  The findings show that there has been an increasing presence of such consultants in the hedge fund industry.  These firms serve as the “bridge between investment managers and pension funds.”  The largest percentage of the consultants’ client base is the family office/high net worth individuals, followed by government funds, and fund of funds.

Hedge fund investors are also more frequently turning to consultants to perform extensive due diligence.  These investors do not have the resources to perform increasingly rigorous due diligence and rely on consultants.

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Other related hedge fund law articles:

Cole-Frieman & Mallon LLP provides comprehensive hedge fund start up and regulatory support for hedge fund managers.  Bart Mallon, Esq. can be reached directly at 415-868-5345.

Audit Issues from Due Diligence Provider

The following article is written by Chris Addy, president and CEO of Castle Hall Alternatives which is a hedge fund due diligence firm.

For funds raising assets from institutional investors, the due diligence process will be quite familiar and Chris describes some of the frustrations from the investor/due diligence standpoint.  I would imagine that these issues will continue to arise as more service providers strive to find ways to limit their potential future liability.  Please feel free to comment below.

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A recap on some audit issues

Looking back over our posts over the past year or so, we’ve commented on a number of issues which impact investors’ due diligence procedures when thinking about the audit process, the financial statements, and the auditor themselves.

We thought it would be useful to recap on a group of issues which continue to be troubling:

1) And why can’t the auditor identify themselves?

Back in November, we commented on the challenge of getting the Big 4 audit firms to admit that they are, actually, the auditor of the fund in question.  In the six months since then, practices appear to have standardized: typically, the Big 4 will now provide a form response, but only after the investor has signed an extensive disclaimer letter.  The slight snag?  The disclaimer is usually so wide ranging that it appears to materially impact the investors’ ability to sue the auditor in the event of audit failure (which, of course, is the idea).  We advise our clients not to sign it.

As a counterpoint, it is worth noting – and forcefully reminding the Big 4 – that every other auditor on the planet makes the confirmation process smooth and effective.  Castle Hall is particularly appreciative of the responsiveness and professionalism of Rothstein Kass each time we make an audit confirmation request.  In fact, that reminds me…do I actually need a Big 4 auditor?

2) And it’s pretty much the same for SAS 70s..

Unfortunately, the SAS 70 process is pretty much the same – it is becoming increasingly difficult for the end investor to obtain a copy of the SAS 70 document for many administrators.  This is, of course, despite the fact that the SAS 70 is now a key marketing point in the admin industry.

It’s particularly annoying when the SAS 70 is stated only to available (i) to the auditors of (ii) the administrator’s clients, the funds.  The first point makes the SAS 70 process seem more than a little self serving, as the auditors give each other work for the sake of it.  The second raises the broader issue (and one of our favorite topics) of who exactly is the administrator’s client – the fund or the investor?

A particular black mark goes to those administrators who will not provide investors with a copy of the SAS 70 under any circumstances, and insist on providing a summary of the SAS 70…prepared by themselves.  And exactly how is the investor supposed to place any reliance on that?

An honorable mention in the hall of shame must go, however, to those administrators who try to charge the costs of their SAS 70 review through to their fund clients as an out of pocket expense.  In other words, the admin expects the funds’ shareholders’ to pay for their own SAS 70.

And no, we still can’t see it.

3) Who distributes the financial statements?

While the confirmation issue above is tediously annoying, thinking practically, the risk that a hedge fund simply fabricates a relationship with PwC or KPMG is pretty remote.  What is more likely is that a reputable audit firm has been appointed and completes their work…but a manager then elects to change some or all of the financial statements and gives investors a set of fake accounts.  As we have said before, a copy of Adobe photoshop only costs $500.

The double irony is that, even with the audit confirmation we discussed above, the auditor does not send the investor the accounts directly.  There is, therefore, no way of getting a direct confirmation from the auditor that the accounts in your possession are, in fact, genuine.

One suggestion we have heard would be, in the offshore world at least, for investors to access financial statements direct from the Cayman Monetary Authority (perhaps via a secure website with appropriate authorizations).  This would draw on the requirement that the fund auditors must give the Cayman authority a copy of the (genuine) accounts themselves.  An excellent idea….Cayman?

As a more immediate solution, we are always anxious to confirm that the fund administrator receives the audited financials direct from the auditor and thereafter sends them to investors.  This is a great control – it ensures that the financial statements are authentic, and it also unequivocally confirms the identity of the auditor at the same time.

The snag?  While this is crucially important, administrators seem pretty casual about the whole process.  Admins are generally happy to do this, but only if a fund asks for this “service”, and many admins are certainly far from proactive on this topic.  There are some admins, mind you, that don’t want to get involved (we came across one admin that had decided, on a related point, that they would not send offering memos to investors.)

In our mind, this is a vital control and should be mandatory for every administrator.  Getting the financials from the admin is just as important as ensuring that the investor monthly NAV statements come from the admin and not from the manager.

4) And who is the audit report addressed to?

Another particular bugbear is the obsession of one of the Big 4 audit firms in Cayman to change the addressee of the audit report from “to the board of directors and shareholders” to just “to the board of directors”.  The objective, of course, is transparent and predictable – the auditor is looking to enhance the concept of privity and assert that the firm only has a relationship with the Board and no relationship – none, never, nada – with the investor.

The irony here – the directors who are now the sole recipient of the audit are usually our rent a director friends who sit on a few hundred other hedge fund boards.  And does anyone really think – including the partner at the Big 4 firm signing the opinion – that these guys really have time to read every set of audited financial statements from cover to cover?

One solution here – could the Cayman regulator mandate that the audit opinion must be addressed to the shareholders in order to be meet Cayman requirements?  Again, this would be a small change that would send a very helpful, investor friendly signal from this jurisdiction.

5) In fact, do you even have to leave the office?

A final observation reflects what seems to be an emerging trend over the past audit cycle – certain auditors (and certain offices of certain auditors in particular) seem to be adopting a desk fieldwork process.  We have recently completed due diligence on a number of funds – albeit usually long short equity – when both the administrator and the manager stated that the audit team had never came on site to do any audit work.  All work was done remotely from the auditor’s own offices.

Now, aside from the fact that fieldwork is called fieldwork for a reason (er…you’re in the field) we see this as a worrying trend.  It stands to question that the quality of the audit is not the same if you never look the individual responsible for preparing the accounts in the eye.

As a counterpoint to our observations, we do continue to recognize that the audit process is ever more challenging and that many skilled professionals work incredibly hard, especially during busy season. As just one example, we were recently speaking with the audit partner of a Big 4 firm discussing FIN 48 – a tortuous challenge for the profession.

At the same time, the audit process is critical for investors and we’re certainly entitled to ask tough questions – we are “sophisticated”, after all.

It’s also worth noting that the auditors’ ever increasing fees are, of course, borne by the end allocator.  We’re happy to pay….provided we get good value.  Net net, the hedge fund audit profession would certainly be well served to make things a little easier for the person cutting the pay cheque.

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Hedge Fund Operational Due Diligence
“Risk Without Reward” is a trademark of Entreprise Castle Hall Alternatives Inc.  All rights reserved.

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Other related hedge fund law articles:

Cole-Frieman & Mallon LLP is one of the top hedge fund law firms and provides comprehensive formation and regulatory support for hedge fund managers.  Bart Mallon, Esq. can be reached directly at 415-868-5345.

For more articles by Chris Addy, please see the Castle Hall Alternatives post where we have listed our reprinted articles.

State Budget Shortfalls and Investment Adviser Registration

Financial Reform Bill May Devastate Overburdened State Securities Divisions

As many states are facing huge budget shortfalls, government services have been cutback and certain states have furloughed workers in certain divisions. In a number of states (including California) these budget cuts have affected the state securities divisions and accordingly the many state securities divisions are running dangerously lean. For example, I just recently talked with an examiner in the Oregon Division of Finance and Corporate Securities regarding a state blue sky filing for a hedge fund manager. The examiner told me that because of budget cuts and furlough days, the division will not even have a chance to review the blue sky filing we submit for five months! (Of course, they will cash the check immediately.)

This is obviously a huge issue and is only one instance of a state which does not currently have the resources to adequately perform oversight of the investment and securities activity which occur within its borders. In fact, many states currently don’t have the staff or expertise to adequately oversee the investment advisers and brokers registered with their securities division. While this is troubling, the problem is only going to get worse if the Financial Reform Bill proceeds as currently drafted.

While many have lauded the Senate bill, which will require hedge fund registration for managers with $100MM in AUM or more, an important issue has been overlooked. All investment advisers (in addition to hedge fund managers) with AUM of less than $100MM will be subject to state and not SEC registration. The $100MM threshold is an increase from the current threshold of $25MM. This means that a financial planner overseeing $90MM in assets (which was previously subject to SEC registration and periodic examination) will now be subject to regulation, generally, by the state in which that manager resides.

This means that if the financial reform bill goes through as currently drafted in the senate, the states are suddenly going to be responsible for overseeing a larger pool of managers. Even though the state will have increased responsibility, it is unlikely that state budgets will provide the securities divisions with more funding to properly oversee the new managers the divisions will be responsible for regulating. We find this troubling for investor protection reasons and for manager business continuity – that is, managers would be better off registered at the SEC level and subject to examination by SEC staff better trained (presumably) than state regulators.

We concede that the SEC has its own problems with funding and this provision allows them to focus on larger, more systemically important managers. However, we believe that states are going to be greatly burdened by the increase in jurisdictional oversight. Accordingly, we believe either Congress or the SEC provide a grandfathering provision which would allow current managers who exceed the $25MM threshold (but not the new $100MM threshold) to register or remain registered with the SEC.

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Other related hedge fund law articles:

Cole-Frieman & Mallon LLP is one of the top hedge fund law firms and provides comprehensive formation and regulatory support for hedge fund managers.  Bart Mallon, Esq. can be reached directly at 415-868-5345.

Hedge Fund Events June 2010

The following are various hedge fund events happening this month.  Please email us if you would like us to add your event to this list.

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June 1

June 1

June 2

June 2

June 6-8

June 7-9

June 7-9

June 8

June 8

  • Sponsor: Roundtable Forum
  • Event: Roundtable Forum
  • Location: London, United Kingdom

June 8-9

June 8-9

June 8-9

  • Sponsor: MFA (Managed Funds Association)
  • Event: Forum 2010
  • Location: Chicago, Illinois

June 9

June 9-10

June 9-10

June 10

June 10

June 10

June 10

June 10

June 10

June 13-15

June 14-17

  • Sponsor: ICBI (The International Centre for Business Information)
  • Event: GAIM International 2010
  • Location: Monaco

June 15

  • Sponsor: Woodfield LLC
  • Event: Hedge Fund Networking Event
  • Location: Denver, Colorado

June 15

June 15

June 15-17

  • Sponsor: IIR (Institute for International Research)
  • Event: Family Office Forum
  • Location: Chicago, Illinois

June 16

June 16-17

June 16-18

June 17-18

June 20-22

June 21-22

June 22

June 22

June 22

  • Sponsor: FRA (Financial Research Associates, LLC)
  • Event: Hedge Fund Tax 101
  • Location: New York, New York

June 22-23

June 22-24

  • Sponsor: ISLA (International Securities Lending Association) /AFME (Association for Financial Markets in Europe)
  • Event: Securities Lending Conference
  • Location: Berlin, Germany

June 23-25

June 24

June 24-25

June 28-30

June 28-July 1

June 29-30

June 30

June 30

June 30

June 30-July 1

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Bart Mallon, Esq. runs the hedge fund law blog and provides hedge fund information and manager registration services through Cole-Frieman &  Mallon LLP He can be reached directly at 415-868-5345.

Hedge Fund Law Blog Notes For Week

Adviser Registration, Accredited Investors, Carried Interest, Insider Trading, Cap and Trade

Below are some thoughts on some of the major issues over the last couple of weeks.

Have a great Memorial Day Weekend!

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Hedge Fund Regulation and Registration – While the Private Fund Investment Advisers Registration Act of 2010 was passed this month in the Senate, there has not been as much discussion in the news about this issue and manager registration.  I expected that we would hear more, especially with regard to the following issues:

  • Section 407 – Exemption of VC Funds
  • Section 408 – Exemption from Reporting Requirements for Private Equity Funds
  • Section 410 – State Authority for Managers with AUM of up $100MM (this is generally a bad idea in my opinion and we will be writing a post about this soon…)
  • Section 412 – Adjusting Definition of Accredited Investor (see also below)

I imagine we will hear more as the Senate and House begin to reconcile their two bills and before President Obama signs the final Financial Reform bill into law, which some think may happen before the July 4th holiday.

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Definition of Accredited Investor – The Senate version of the Financial Reform bill will change the definition of an “accredited investor” in the future.  Generally “accredited investors” are those individuals with a net worth of $1,000,000.  Under current regulations, individuals can include the equity in their private residence when determining their net worth.  In the future, they will need to exclude the equity in their private residence when determining their net worth.  This potentially may have a deleterious effect on the hedge fund industry, but also on other industries which rely on private placements.

According to some sources, at least one Senator is asking that the definition of accredited investor be expanded to include state and local governments.  I agree with this approach – if the Senate is taking the time to mess with the definition right now then the Senate should spend a little time addressing other issues.  For instance, the definition of accredited investor should also be expanded to include Native American Tribes.  I have specifically talked with the SEC staff about this issue a couple of years ago and they have categorically refused to issue a no-action or other interpretive release on this issue – we believe that now is the time to include Native American Tribes in the definition of accredited investor.

For more information, please see the Native American Capital, LP policy briefing and the National Congress of American Indians letter to the SEC on this issue.

See also Perkins Coie discussion of this issue.

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Carried-Interest Issue -it looks like the carried interest tax laws will be changing in 2011.  In addition to hedge fund managers, managers to other pooled investment vehicles will be greatly affected (such as VC and private equity fund managers, as well as real estate fund managers).  The change in the laws will likely affect more VC and PE managers than hedge fund managers because of the nature of the underlying gains in the respective investment vehicles (VC and PE fund managers typically have mostly long term capital gains and hedge fund managers may have a combination of long term and short term capital gains).  There is likely to be a large number of industry groups which come out in opposition to the changes in the next couple of weeks.

We do not agree with the proposed changes – it seems as though Congress is specifically attacking an easy target  in the investment management community.

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Insider Trading Issue – just today the SEC announced an insider trading case brought against a hedge fund manager Pequot Capital Management, Inc., and its Chairman and CEO Arthur Samberg.  This issue has been thoroughly discussed most recently after the Galleon affair.  Hedge funds managers and compliance personnel need to be even more vigilant about establishing comprehensive compliance programs and making sure that traders are not engaging in insider trading.  Please see our previous thoughts on Hedge Funds and Insider Trading.

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Green Tech/ Cap and Trade – clean and green tech continue to gain traction in the investment management industry as a bill which would create federal carbon cap and trade system was introduced recently.  Next weekend the South Asian Bar in San Francisco will have a panel discussion. entitled “Green 2 Green: Carbon Credits, Renewable Energy Certificates and the New Markets driving the Clean Energy Economy”.  According to the program,

Attendees will receive a quick primer on market-based regulatory responses to climate change designed to foster the development of renewable power plants and spur long term investment in clean and sustainable energy. Panelists will address state and federal legislation setting green house gas emission caps, establishing renewable portfolio standards, and creating new markets for carbon credits and renewable energy certificates. We’ll discuss the regulatory origins and key characteristics of these and other green commodities, as well as the structure and rules of markets created to transition industry and consumers from the present carbon economy toward tomorrow’s clean energy economy.

Mallon P.C. will be represented at the panel discussion so please come and talk to us there.

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Other related hedge fund law articles:

Cole-Frieman & Mallon LLP works with many managers who invest in various commodities and with groups who work in the clean tech space.  Mallon P.C. is a top hedge fund law firm which provides comprehensive formation and regulatory support for hedge fund managers.  Bart Mallon, Esq. can be reached directly at 415-868-5345.