Tag Archives: cybersecurity

Hedge Fund Bits and Pieces for May 26, 2017

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Happy Friday.  Best wishes for a happy and safe Memorial Day weekend!

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Initial Coin Offerings – Bitcoin and other cryptocurrencies took center stage this weeks as new high prices were reached in volatile trading and euphoria around the Consensus Conference earlier this week. Initial coin offerings (or ICOs) were a major topic discussed and should be a major topic going forward.

Artificial Intelligence Hedge Funds – perhaps lost over the last couple of weeks in the discussion of cryptocurrencies has been the general movement in finance toward utilizing artificial intelligence in the investment process. We recently wrote about artificial intelligence hedge fund strategies and detailed the issues that managers should consider when launching a fund in this space.

DOL Rule Effective June 9 – the delay of the DOL rule was short lived.  The DOL recently published a news release announcing that initial implementation of the rule would begin on June 9 (as opposed to April 10, the originally scheduled implementation date) and that “advisers to retirement investors will be treated as fiduciaries and have an obligation to give advice that adheres to “impartial conduct standards” … [t]hese fiduciary standards require advisers to adhere to a best interest standard when making investment recommendations, charge no more than reasonable compensation for their services and refrain from making misleading statements.”

For hedge fund managers, life does not change to a large extent (managers will likely need to update their subscription documents and may need to obtain additional representations from IRA and ERISA investors for any new investment made after June 9, 2017).  SMA managers will need to be careful and should review their relationship with retirement investors.  More information on this will be forthcoming on this blog and in our client updates.

CFTC Focus on FinTech – the CFTC launched a LabCFTC Initiative which “aimed at promoting responsible FinTech innovation to improve the quality, resiliency, and competitiveness of the markets the CFTC oversees.”  The overall goal of the program is to promote innovation for new FinTech products while providing the sponsors of such products more insight into the potential regulatory oversight of those products.  Central to that goal will be GuidePoint which will act as “dedicated point of contact for FinTech innovators to engage with the CFTC, learn about the CFTC’s regulatory framework, and obtain feedback and information on the implementation of innovative technology ideas for the market.”  This sort of proactive approach to innovation by regulators should be a welcome sight to new product sponsors.

Other Items

Cooperman Insider Trading Settlement – Leon Cooperman settled his insider trading case with the SEC, which released an interesting statement on the settlement.  While the settlement allows Cooperman’s fund, Omega, to continue operating, Cooperman and Omega were subject to a $1.7M fine for insider trading.  More importantly, the firm must retain an onsite independent consultant for the next 5 years to guard against insider trading.  There were a couple of additional requirements of the settlement which, with the various fines and independent consultant requirement, have to make the SEC feel like they got a big win here.  It will be interesting to see how or if this settlement is used as precedent in future cases.

SEC Issues Cybersecurity Alert – on the heels of the WannaCry ransomeware attack, the SEC issued a Cybersecurity Alert.   The alert is geared more towards smaller broker-dealers and investment advisory firms and provides background and links to other SEC resources on this issue.

New York Employers Cannot Ask About Salary History – on May 4, New York Mayor de Blasio signed a bill making it illegal (and subject to fines) for an employer to ask questions about a candidate’s prior compensation.  Hedge fund managers located in New York will want to discuss this issue with their internal HR persons, as well as their outside counsel.  The bill is called “Intro. 1253” and  goes into effect 180 days after the signing. A cached version of the de Blasio press release can be found here.

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Bart Mallon is a founding partner of Cole-Frieman & Mallon LLP and focuses his legal practice on the investment management industry. He can be reached directly at 415-868-5345.

Hedge Fund Bits and Pieces for May 12, 2017

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Happy Friday.

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SEC New Chairman Jay Clayton Sworn In – last week Justice Anthony Kennedy swore in Jay Clayton as the new SEC Chairman.  Clayton has a long background working in the the securities industry at a large law firm and has acted as a law school professor with respect to various aspects of the securities industry.  Clayton begins the Chairmanship during rapidly changing times – technological innovation is changing both the products in the securities industry as well as how market participants interact with those products.  We are both excited and hopeful that he will be able to lead the SEC in this this environment to adequately protect investors while also encouraging innovation and growth within the industry.  More information on his background can be found in the SEC press release.

State Cybersecurity Workshop – we hear about cybersecurity threats on an almost daily basis now; last week introduced a phishing scam involving Google Docs.  As this issue continues to be a forefront issue, the regulators and states are trying to help industry participants become better prepared in this area.  As an example, Washington state just announced that it will hold a “Cyber Security Workshop for Small & Medium Businesses”  in Washington state in conjunction with the National Cyber Security Alliance (NCSA).  We anticipate we will see more initiatives like this for investment managers going forward and encourage all managers to continue their education in this area.

CFTC Reduces Burden for Swap CCOs – last week the CFTC published in the Federal Register amendments to regulations applicable to certain chief compliance officers of firms that engage in swaps.  We recognize that these CCOs have a very difficult job (especially as the products become more and more complex) and we applaud the CFTC for attempting to identify areas where regulatory burdens can be lifted.  We anticipate there will be a number of comments in this area, which are due by July 7, and we will provide updates as applicable.

Other Items

AI Trend Continues – we note that a number of the legal projects we are currently working on deal with Artificial Intelligence (AI) in some way.  A service provider to the investment management industry, Orbital Insight, showcase that AI is front and center on the minds of the industry when it announced a $50M Series C round.

State Carried Interest Tax Changes? – according to this update a number of states are contemplating changes to the manner in which carried interest is taxed.  It seems like it will be a bit of a waiting game until a Federal tax bill is proposed, but it is interesting to note that there seems to be some kind of momentum toward changing the manner of taxation.

CFTC Requests Public Input on Simplifying Rules – the CFTC announced that it is asking for input on how regulations should be modified to better address regulatory items and to reduce costs.  We think this is a step in the right direction and also mirrors the initiative by FINRA (which we reported on earlier).  We believe that investor protection is paramount, but we also believe that modifications to certain investment regulations can increase efficiency and reduce costs for market participants which would be a benefit for everyone.  For more information see the CFTC’s ProjectKiss site; comments are generally due by September 30.

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Bart Mallon is a founding partner of Cole-Frieman & Mallon LLP and focuses his legal practice on the investment management industry. He can be reached directly at 415-868-5345.

Hedge Fund Bits and Pieces for March 31, 2017

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Happy Friday and congrats to everyone on making it though the first quarter!  Our firm will be sending out a 2017 first quarter update sometime in the next couple of weeks – if you are not on the distribution list and would like to be, please contact us.  We will also post the update to this blog.

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Annual ADV Update – due TODAY by 11pm ET (when IARD system shuts down).  The ADV annual updates are due today.  Most firms have submitted their updates by now but if you have not done so, please call your legal or compliance professional immediately.  Additionally, fund managers generally will have their audits completed by today and those should be sent to investors as per the firm’s compliance procedures.

Another Bitcoin Trust Rejected by SEC – on Tuesday the SEC rejected an application by NYSE Arca to list shares of SolidX Bitcoin Trust.  The trust was set to a publicly traded vehicle designed to track the price of bitcoins as measured by an index of unregulated bitcoin exchanges (Bitfinex, Bitstamp, GDAX, itBit, and OKCoin International).  In rejecting the application, the SEC stated that it believes that the bitcoin markets are unregulated.  This is the second rejected listing of a bitcoin product for retail investors (see earlier post discussing the rejection of the Winklevoss bitcoin ETF).

SEC Focus on FinTech – it is abundantly clear that technology is beginning to change the capital markets in profound ways.  As practitioners, we are working with our clients to figure out how new ways of investing fit within the current regulatory structures applicable to both products and managers.  As these changes take deeper root, there will be growing pains and the SEC realizes this – below are recent remarks made on Monday in Washington by acting SEC Chairman Michael Piwowar about the FinTech industry and how the SEC will be working in the space in the future.  The full speech, made at the beginning of the SEC’s 27th Annual International Institute for Securities Market Growth and Development, can be found here.

Financial technology (“FinTech”) is also revolutionizing our industry. FinTech can bring tremendous benefits – streamlined market operations and more affordable ways to raise capital and advise clients.  Fifty-nine percent of all adults in developing nations do not have a bank account – but this is changing fast. With cell phones now in the pockets of many individuals in even the poorest of nations, mobile technology has greatly cut down on barriers to accessing capital. In Kenya, for example, I saw firsthand the transformative power of FinTech. Sixty-eight percent of Kenyan adults use their mobile phones for monetary transactions. In 2013, over 25% of the Kenyan GNP was transferred via M-PESA, the leading mobile money transfer service in the country. Services like M-PESA are not only for the transfer of money, but also can be used to take out micro-loans that would have been previously unavailable to small businesses.  The question for us regulators is how can we encourage this innovation and all the potential benefits that it promises, while also managing the risks? At the SEC, we started a FinTech working group. Not surprisingly, FinTech firms report that their greatest struggle is navigating a complex regulatory environment. The SEC, and other securities regulators, should take the leading role in working with the FinTech community to adapt longstanding laws and regulations to newfangled technology. (footnotes omitted)

Other Items:

  • CFTC Announces Committee Meeting on Cybersecurity – the CFTC just announced that the Market Risk Advisory Committee (MRAC) will meet on April 25, 2017 to discuss a number of important issues related to the futures and commodities markets.  A central focus of this meeting will be focused on cybersecurity trends in the futures markets.  The discussion will also cover “how well the derivatives markets are currently functioning, including the impact and implications of the evolving structure of these markets on the movement of risk across market participants” – we anticipate that some part of the discussion will focus on certain new instruments like cryptocurrencies and the emerging derivate products linked to such instruments.  The MRAC’s meeting will be public and be held at the CFTC’s Washington, DC, headquarters.
  • Adidas Trademark Issue – while not directly related to the investment management industry, this blog post (produced by our Of Counsel trademark attorney Bill Samuels) highlights the technical nature of the enforcement of trademarks.  It also highlights the strength of a registered mark (the sale of only two hats, which contain a trademarked phrase, are enough to implicate interstate commerce and allow a trademarked phrase to be protected under the trademark laws).  It is important for managers with questions on their trademarks and other intellectual property to discuss these matters with counsel.

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Bart Mallon is a founding partner of Cole-Frieman & Mallon LLP and focuses his legal practice on the investment management industry. He can be reached directly at 415-868-5345.

Hedge Fund / Investment Adviser Updates for March 10, 2017

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Happy Friday.  Below are some recent updates that we thought were relevant and/or interesting.  Please contact us if you have any questions on the below.

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IA Annual Update – a reminder to investment advisers that the annual ADV update will be due in 3 weeks.  If you have not already begun the process, you should start working with your fund attorney or compliance consultant to finish the update which is due by March 31, 2017.  Please see our earlier post on the IA update process for more information.

Cybersecurity watch for fund managers – the SEC recently sent a note out to EDGAR users about a phishing email scam.  Emails were purportedly sent from the SEC about changes to the Form 10-K; the emails in fact were part a phishing scam.  A reminder for all to be vigilant with inbound emails.  For the release from the SEC, please click here.

DOL Fiduciary Rule – whether the Department of Labor’s new fiduciary rule will be enacted has been subject to constant speculation since the election of President Trump.  Speculation continues in the wake of the March 2nd notice by the DOL asking for comments on whether to delay application of the rule by 60 days (the rule is/was supposed to be applicable as of April 10, 2017).  Interestingly enough, the request for comments on whether to delay the application of the rule comes from pressure from the current administration; as specifically noted by the DOL in the Federal Register:

The President by Memorandum to the Secretary of Labor, dated February 3, 2017, directed the Department of Labor to examine whether the final fiduciary rule may adversely affect the ability of Americans to gain access to retirement information and financial advice, and to prepare an updated economic and legal analysis concerning the likely impact of the final rule as part of that examination.

Comments on the proposal to delay the rule are due to the DOL by March 17, 2017.   Expect to see a number of stories on this topic over the next couple of weeks.  For more information, see the notice in the Federal Register.

Marijuana / Cannabis Hedge Funds – we recently wrote a post about the legal and operational issues for hedge fund managers in the cannabis space.  We think there will be a lot of stories about this sector in the next few months as the Trump administration sorts out whether and how to enforce federal prohibitions against marijuana.

Other items of interest – we think there will continue to be interesting stories that affect the investment management industry, especially with respect to regulations and taxes (we’re hoping for more news on tax cuts, instead of news related to “closing the carried interest loophole”).  Always of interest are discussions related to the decrease of hedge fund management and performance fees – I’m sure we’ll see more stories and anecdotes likes these.

Have a great weekend!

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Bart Mallon is a founding partner of Cole-Frieman & Mallon LLP and focuses his legal practice on the investment management industry.  He can be reached directly at 415-868-5345.