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Family Office Definition

SEC Releases New Rule on Family Offices for IA Registration Exclusion

The Dodd-Frank Act created a new “family office” exclusion from the definition of investment adviser because the private advisor exemption was repealed.  While Congress believed that family offices should not be subject to the SEC registration requirements, it did grant authority to the SEC to define what constitutes a “family office”.  On June 22, 2011 the SEC issued a final rule which narrowly defined a family office to essentially include only an office which represents a single family that does not exceed 10 generations.  The new regulation takes effect on August 29, 2011 and those companies which do not fall within the new family office definition will be required to register with the SEC by March 30, 2012.

Family Office Definition

The term “family office” means a company that :

  • provides investment advice only to certain “family clients”;
  • is wholly owned by the “family clients” and controlled by family members or family entities; and
  • does not hold itself out to the public as an investment adviser.

The term “family clients” includes:

  • current and former family members,
  • certain employees of the family office (and, under certain circumstances, former employees),
  • charities funded exclusively by family clients,
  • estates of current and former family members or key employees,
  • trusts existing for the sole current benefit of family clients,
  • revocable trusts funded solely by family clients,
  • certain key employee trusts, and
  • companies wholly owned exclusively by and operated for the sole benefit of, family clients.

The term “family member” includes:

  • all lineal descendants of a common ancestor (who may be living or deceased)*
  • current spouses or spousal equivalents of those descendants
  • former spouses or spousal equivalents of those descendants

* The common ancestor cannot be more than 10 generations removed from the youngest generation of family members.  For an example of how this works, please see this ancestor diagram.

Notably, the exclusion does not extend to family offices serving multiple families.

Also, it is important to note that family offices are excluded from the definition of investment adviser as opposed to being exempted from registration requirements.  Previously family offices would have been exempt from registration because of the private adviser exemption.

Grandfathering Provision & Exemptive Orders

The Dodd-Frank Act included a grandfathering provision that precluded the SEC from excluding certain persons from the definition of “family office” solely because those persons provide investment advice to certain clients and provided that advice prior to January 1, 2010. The SEC’s rule incorporated that grandfathering provision such that employees of a family officer who are accredited investors (as defined by Regulation D) and companies controlled by a family member are permitted clients of a family office.

A family office that previously received a SEC exemptive order under section 202(a)(11)(G) of the Advisers Act will be able to continue to rely on the exemptive order and will thus not be required to register as an investment adviser.

Our Thoughts

The family office definition may have received more attention recently than it normally would have because of the Soros news.  However, it seems more important that the new rule does not include in the definition those groups which provide advisory services to more than one family.  This means that groups traditionally deemed to be family offices (albeit that services were provided to multiple families) will need to register with the SEC by March 30, 2012.  While we encourage managers to begin the registration process as soon as possible, we believe that managers will not begin the process en mass until the fourth quarter of 2011 and into the first quarter of 2012.

The full rule is reprinted below.

The full adopting release can be found here: IA-3220 – Final Family Office Rule.

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§ 275.202(a)(11)(G)-1 Family offices.

(a) Exclusion. A family office, as defined in this section, shall not be considered to be an investment adviser for purpose of the Act.

(b) Family office. A family office is a company (including its directors, partners, members, managers, trustees, and employees acting within the scope of their position or employment) that:

(1) Has no clients other than family clients; provided that if a person that is not a family client becomes a client of the family office as a result of the death of a family member or key employee or other involuntary transfer from a family member or key employee, that person shall be deemed to be a family client for purposes of this section 275.202(a)(11)(G)-1 for one year following the completion of the transfer of legal title to the assets resulting from the involuntary event;

(2) Is wholly owned by family clients and is exclusively controlled (directly or indirectly) by one or more family members and/or family entities; and

(3) Does not hold itself out to the public as an investment adviser.

(c) Grandfathering. A family office as defined in paragraph (a) above shall not exclude any person, who was not registered or required to be registered under the Act on January 1, 2010, solely because such person provides investment advice to, and was engaged before January 1, 2010 in providing investment advice to:

(1) Natural persons who, at the time of their applicable investment, are officers, directors, or employees of the family office who have invested with the family office before January 1, 2010 and are accredited investors, as defined in Regulation D under the Securities Act of 1933;

(2) Any company owned exclusively and controlled by one or more family members; or

(3) Any investment adviser registered under the Act that provides investment advice to the family office and who identifies investment opportunities to the family office, and invests in such transactions on substantially the same terms as the family office invests, but does not invest in other funds advised by the family office, and whose assets as to which the family office directly or indirectly provides investment advice represents, in the aggregate, not more than 5 percent of the value of the total assets as to which the family office provides investment advice; provided that a family office that would not be a family office but for this subsection (c) shall be deemed to be an investment adviser for purposes of paragraphs (1), (2) and (4) of section 206 of the Act.

(d) Definitions. For purposes of this section:

(1) Affiliated Family Office means a family office wholly owned by family clients of another family office and that is controlled (directly or indirectly) by one or more family members of such other family office and/or family entities affiliated with such other family office and has no clients other than family clients of such other family office.

(2) Control means the power to exercise a controlling influence over the management or policies of a company, unless such power is solely the result of being an officer of such company.

(3) Executive officer means the president, any vice president in charge of a principal business unit, division or function (such as administration or finance), any other officer who performs a policy-making function, or any other person who performs similar policy-making functions, for the family office.

(4) Family client means:

(i) Any family member;

(ii) Any former family member;

(iii) Any key employee;

(iv) Any former key employee, provided that upon the end of such individual’s employment by the family office, the former key employee shall not receive investment advice from the family office (or invest additional assets with a family office-advised trust, foundation or entity) other than with respect to assets advised (directly or indirectly) by the family office immediately prior to the end of such individual’s employment, except that a former key employee shall be permitted to receive investment advice from the family office with respect to additional investments that the former key employee was contractually obligated to make, and that relate to a family-office advised investment existing, in each case prior to the time the person became a former key employee.

(v) Any non-profit organization, charitable foundation, charitable trust (including charitable lead trusts and charitable remainder trusts whose only current

beneficiaries are other family clients and charitable or non-profit organizations), or other charitable organization, in each case for which all the funding such foundation, trust or organization holds came exclusively from one or more other family clients;

(vi) Any estate of a family member, former family member, key employee, or, subject to the condition contained in paragraph (d)(4)(iv) of this section, former key employee;

(vii) Any irrevocable trust in which one or more other family clients are the only current beneficiaries;

(viii) Any irrevocable trust funded exclusively by one or more other family clients in which other family clients and non-profit organizations, charitable foundations, charitable trusts, or other charitable organizations are the only current beneficiaries;

(ix) Any revocable trust of which one or more other family clients are the sole grantor;

(x) Any trust of which: (A) each trustee or other person authorized to make decisions with respect to the trust is a key employee; and (B) each settlor or other person who has contributed assets to the trust is a key employee or the key employee’s current and/or former spouse or spousal equivalent who, at the time of contribution, holds a joint, community property, or other similar shared ownership interest with the key employee; or

(xi) Any company wholly owned (directly or indirectly) exclusively by, and operated for the sole benefit of, one or more other family clients; provided that if any such entity is a pooled investment vehicle, it is excepted from the definition of “investment company” under the Investment Company Act of 1940.

(5) Family entity means any of the trusts, estates, companies or other entities set forth in paragraphs (v), (vi), (vii), (viii), (ix), or (xi) of subsection (d)(4) of this section, but excluding key employees and their trusts from the definition of family client solely for purposes of this definition.

(6) Family member means all lineal descendants (including by adoption, stepchildren, foster children, and individuals that were a minor when another family member became a legal guardian of that individual) of a common ancestor (who may be living or deceased), and such lineal descendants’ spouses or spousal equivalents; provided that the common ancestor is no more than 10 generations removed from the youngest generation of family members.

(7) Former family member means a spouse, spousal equivalent, or stepchild that was a family member but is no longer a family member due to a divorce or other similar event.

(8) Key employee means any natural person (including any key employee’s spouse or spouse equivalent who holds a joint, community property, or other similar shared ownership interest with that key employee) who is an executive officer, director, trustee, general partner, or person serving in a similar capacity of the family office or its affiliated family office or any employee of the family office or its affiliated family office (other than an employee performing solely clerical, secretarial, or administrative functions with regard to the family office) who, in connection with his or her regular functions or duties, participates in the investment activities of the family office or affiliated family office, provided that such employee has been performing such functions and duties for or on behalf of the family office or affiliated family office, or substantially similar functions or duties for or on behalf of another company, for at least 12 months.

(9) Spousal equivalent means a cohabitant occupying a relationship generally equivalent to that of a spouse.

(e) Transition.

(1) Any company existing on July 21, 2011 that would qualify as a family office under this section but for it having as a client one or more non-profit organizations, charitable foundations, charitable trusts, or other charitable organizations that have received funding from one or more individuals or companies that are not family clients shall be deemed to be a family office under this section until December 31, 2013, provided that such non-profit or charitable organization(s) do not accept any additional funding from any non-family client after August 31, 2011 (other than funding received prior to December 31, 2013 and provided in fulfillment of any pledge made prior to August 31, 2011).

(2) Any company engaged in the business of providing investment advice, directly or indirectly, primarily to members of a single family on July 21, 2011, and that is not registered under the Act in reliance on section 203(b)(3) of this title on July 20, 2011, is exempt from registration as an investment adviser under this title until March 30, 2012, provided that the company:

(i) During the course of the preceding twelve months, has had fewer than fifteen clients; and

(ii) Neither holds itself out generally to the public as an investment adviser nor acts as an investment adviser to any investment company registered under the Investment Company Act of 1940 (15 U.S.C. 80a), or a company which has elected to be a business development company pursuant to section 54 of that Act (15 U.S.C. 80a-54) and has not withdrawn its election.

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Cole-Frieman & Mallon LLP is a hedge fund law firm which provides investment adviser registration and compliance services to hedge fund managers and other members of the investment management community such as family offices.  Bart Mallon can be reached directly at 415-868-5345; Karl Cole-Frieman can be reached at 415-352-2300.

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SEC Proposes "Family Office" Definition

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In Section 409 of Dodd-Frank Act, Congress required the SEC to define “family office” for the purpose of exempting such groups from the registration requirements under the Advisers Act.  Section 409 provides that any definition the SEC adopts should be “consistent with the previous exemptive policy” of the SEC and recognize “the range of organizational, management, and employment structures and arrangements employed by family offices.”

The public will have the ability to comment on the SEC’s proposed rule until November 18, 2010.  After that time the SEC will take public comments into consideration and then promulgate a final rule sometime thereafter.

The SEC notice can be found here and we have also provided a link to the full Proposed Family Office Rule.

The proposed definition is reprinted below in full.

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§ 275.202(a)(11)(G)-1 Family offices.

(a) Exclusion. A family office, as defined in this section, shall not be considered to be an investment adviser for purpose of the Act.

(b) Family office. A family office is a company (including its directors, partners, trustees, and employees acting within the scope of their position or employment) that:

(1) Has no clients other than family clients; provided that if a person that is not a family client becomes a client of the family office as a result of the death of a family member or key employee or other involuntary transfer from a family member or key employee, that person shall be deemed to cialis price in canada be a family client for purposes of this section 275.202(a)(11)(G)-1 for four months following the transfer of assets resulting from the involuntary event;

(2) Is wholly owned and controlled (directly or indirectly) by family members; and

(3) Does not hold itself out to the public as an investment adviser.

(c) Grandfathering. A family office as defined in paragraph (a) above shall not exclude any person, who was not registered or required to be registered under the Act on January 1, 2010, solely because such person provides investment advice to, and was engaged before January 1, 2010 in providing investment advice to:

(1) Natural persons who, at the time of their applicable investment, are officers, directors, or employees of the family office who have invested with the family office before January 1, 2010 and are accredited investors, as defined in Regulation D under the Securities Act of 1933;

(2) Any company owned exclusively and controlled by one or more family members; or

(3) Any investment adviser registered under the Act that provides investment advice to the family office and who identifies investment opportunities to the family office, and invests in such transactions on substantially the same terms as the family office invests, but does not invest in other funds advised by the family office, and whose assets as to which the family office directly or indirectly provides investment advice represents, in the aggregate, not more than 5 percent of the value of the total assets as to which the family office provides investment advice; provided that a family office that would not be a family office but for this subsection (c) shall be deemed to be an investment adviser for purposes of paragraphs (1), (2) and (4) of section 206 of the Act.

(d) Definitions. For purposes of this section:

(1) Control means the power to exercise a controlling influence over the management or policies of a company, unless such power is solely the result of being an officer of such company.

(2) Family client means:

(i) Any family member;

(ii) Any key employee;

(iii) Any charitable foundation, charitable organization, or charitable trust, in each case established and funded exclusively by one or more family members or former family members;

(iv) Any trust or estate existing for the sole benefit of one or more family clients;

(v) Any limited liability company, partnership, corporation, or other entity wholly owned and controlled (directly or indirectly) exclusively by, and operated for the sole benefit of, one or more family clients; provided that if any such entity is a pooled investment vehicle, it is excepted from the definition of “investment company” under the Investment Company Act of 1940;

(vi) Any former family member, provided that from and after becoming a former family member the individual shall not receive investment advice from the family office (or invest additional assets with a family office-advised trust, foundation or entity) other than with respect to assets advised (directly or indirectly) by the family office immediately prior to the time that the individual became a former family member, except that a former family member shall be permitted to receive investment advice from the family office with respect to additional investments that the former family member was contractually obligated to make, and that relate to a family-office advised investment existing, in each case prior to the time the person became a former family member; or

(vii) Any former key employee, provided that upon the end of such individual’s employment by the family office, the former key employee shall not receive investment advice from the family office (or invest additional assets with a family office-advised trust, foundation or entity) other than with respect to assets advised (directly or indirectly) by the family office immediately prior to the end of such individual’s employment, except that a former key employee shall be permitted to receive investment advice from the family office with respect to additional investments that the former key employee was contractually obligated to make, and that relate to a family-office advised investment existing, in each case prior to the time the person became a former key employee.

(3) Family member means:

(i) the founders, their lineal descendants (including by adoption and stepchildren), and such lineal descendants’ spouses or spousal equivalents;

(ii) the parents of the founders; and

(iii) the siblings of the founders and such siblings’ spouses or spousal equivalents and their lineal descendants (including by adoption and stepchildren) and such lineal descendants’ spouses or spousal equivalents.

(4) Former family member means a spouse, spousal equivalent, or stepchild that was a family member but is no longer a family member due to a divorce or other similar event.

(5) Founders means the natural person and his or her spouse or spousal equivalent for whose benefit the family office was established and any subsequent spouse of such individuals.

(6) Key employee means any natural person (including any person who holds a joint, community property, or other similar shared ownership interest with that person’s spouse or spousal equivalent) who is an executive officer, director, trustee, general partner, or person serving in a similar capacity of the family office or any employee of the family office (other than an employee performing solely clerical, secretarial, or administrative functions with regard to the family office) who, in connection with his or her regular functions or duties, participates in the investment activities of the family office, provided that such employee has been performing such functions and duties for or on behalf of the family office, or substantially similar functions or duties for or on behalf of another company, for at least 12 months.

(7) Spousal equivalent means a cohabitant occupying a relationship generally equivalent to that of a spouse.

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

Hedge Funds and Bloomberg

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Many hedge fund managers were introduced to the Bloomberg terminal when they began their trading careers.  The terminal, with its iconic user interface which has changed only by small increments over time, can be found in most large asset management companies as well as in smaller groups like family offices, fund of hedge funds, hedge funds and even single manager investment advisory firms.  The breadth and depth of the Bloomberg services may be matched by other similar financial information and news services (like Thompson/Reuters), but managers and traders seem to be drawn to the Bloomber services nonetheless.  Below is an overview of information we compiled on the Bloomberg services – please feel free to share any thoughts in the comments below.

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Bloomberg Terminal Information Overview

What is Bloomberg?

The Bloomberg terminal is a computer system that enables financial professionals to access the Bloomberg Professional service through which users can monitor and analyze real-time financial market data movements and place trades. The system also provides news, price quotes, and messaging across its proprietary and secure network. Most large financial firms have subscriptions to the Bloomberg Professional service, and many exchanges charge their own additional fees for access to real-time price feeds across the terminal.

What services does Bloomberg offer?

Bloomberg offers financial professionals access to a top-of-the-line financial, regulatory, and market database. The system is of particular benefit to investors, as it allows them to simultaneously:

  1. access, process, and store information on the companies they wish to monitor;
  2. teleconference with colleagues around the world; and
  3. monitor the relationship between domestic and foreign currencies.

The activities for which Bloomberg users most commonly subscribe to the service include, but are not limited to:

  • Earnings Estimates
  • Analyst  Recommendations
  • Related Securities
  • Various graphs of a company’s stock price
  • Stock screening search: Search for equities based on user-defined criteria
  • Corporate Actions: Calendar of events that might impact markets
  • Corporate actions of a specific company
  • Broad information on U.S. Treasury and Money Markets
  • U.S. Economic surveys and releases
  • Mergers & Acquisitions Home Page
  • Current news and deals

Bloomberg Mobile, which is a free mobile application for iPhone and Blackberry users,  doesn’t offer quite the same level of functionality as the full Bloomberg terminal, but it is a beautifully designed app that provides up-to-the-minute news, stock quotes, company descriptions, and price chart and market trend analysis. The My Stocks feature is a more detailed replacement for Apple’s Stocks app. Additionally, Bloomberg Mobile takes full advantage of the iPhone’s position sensor by providing larger charts when you rotate the phone to a horizontal position.

The Bloomberg Platform & Equipment

The Bloomberg terminal implements a client-server architecture with the server running on a multiprocessor UNIX platform.  Although the look and feel of the Bloomberg keyboard is very similar to the standard computer keyboard, there are several enhancements that help a user navigate through the system.  Originally a self-contained operating system running on custom hardware, the Bloomberg Terminal now functions as an application within the Windows environment.  There are essentially three levels to the system:

(1) The Core Terminal:

This is the original system, consisting typically of 4 windows, each containing a separate instance of the terminal command line. By entering tickers and functions, data can be displayed and programs run to analyze it. This seemingly large number of windows allows users to call up several entirely different sets of data, and compare it quickly; for those users who have more than one computer display, each terminal window can be assigned independently, creating, in effect, four terminals.

(2) The Launchpad:

Launchpad is a customizable display consisting of a number of smaller windows, called ‘components’, each of which is dedicated to permanently displaying one set of data. A typical user would be a stockbroker who wishes to keep a list of 30 stocks visible at all times: Launchpad creates a small component which will show these prices constantly, saving the broker from having to check each stock independently in the terminal. Other functions, such as email inboxes, calculation tools and news tickers can be similarly displayed. The Instant Bloomberg messaging/chat tool is another Launchpad component that allows brokers to communicate instantly with other Bloomberg users.

(3) Application Programming Interface:

The final level of the Bloomberg system is the ability to export data from the terminal to 3rd party applications, such as Microsoft Excel. A user might wish to use Bloomberg data from the terminal to create his or her own calculations; by exporting the live data into another program, they can build these formulae. Bloomberg supports this through a range of add-ins which are packaged with the terminal software.

How much does Bloomberg cost?

While Bloomberg offers a great variety of services, it is relatively expensive.  Monthly rates can be as high as $1,500 – $1,800 per month.  However, as Bloomberg saw a decline in revenue over 2007 and 2008, it is to be expected that the rates will come down  by the end of 2009.  Although Bloomberg has become an institutional cornerstone in the finance world, leading competitors for electronic financial data provision include Thomson/Reuters, Morgan Stanley, FactSet Research Systems, Jackson Terminal, Advantage Data Inc., Fidessa and Dow Jones.

Conclusion

Bloomberg Terminal currently caters to more than 300,000 users worldwide, and is highly regarded by financial professionals as a powerful data-warehouse for institutional investors.  Since the relatively high ongoing cost makes it unfeasible for individual investors with relatively small amounts of capital to purchase, the product targets a unique subsector of investors with the purchasing power to enjoy the benefits of comprehensive access to the financial marketplace.

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Please contact us if you have any questions or would like to start a hedge fund.  Other related hedge fund law articles include:

Hedge Fund Service Providers Expanding During Market Turmoil

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If you read a lot of the stories which have been coming out in the last couple of weeks, you would think that the hedge fund industry was about to go the way of the dinosaur.  (See NYT Deal Book Article)  Personally, I think the exact opposite – that the hedge fund industry, after a bit of a cooling off period, will see assets come back to the table in greater force than before.  I also believe that hedge funds will become more institutionalized products with more robust due diligence procedures as a standard practice and that hedge funds will (eventually) emerge as retail products.  Whether any of the above happens quickly or slowly remains to be seen, but there were four separate press releases we published last week that shows hedge fund service providers are especially bullish on the industry.

The four press releases deal with (1) expanding hedge fund due diligence; (2) increased investment from single family offices; (3) prime brokers continuing expansion based on industry changes and (4) a hedge fund administrator moving into the prime brokerage arena.  I’ve highlighted the takeaways from the press releases below.

1.  Hedge Fund Due Diligence Firm Expands. (Link to release)  The press release below provides details on a hedge fund due diligence firm which is expanding its operations.  In the coming months and years hedge fund due diligence is poised to become a central part of the hedge fund investing process. Specifically, the press release quotes the new hire as saying… “in the current markets, hedge fund investors face multiple challenges that, more than ever, involve operational risk. Investors must understand many new issues, including counterparty risks, the impact of FAS 157 and how to deal with funds which impose gates, suspend redemptions or restructure. Castle Hall helps investors enhance their due diligence program and better respond to these new challenges.”  I completely agree.  For more information on due diligence, please see the following HFLB articles:

2.  Single family offices to increase hedge fund investing in the next year. (Link to release) Rothstein Kass, a well known hedge fund audit and administration firm, released a study which indicates that Single Family Offices will continue to invest in hedge funds.  This press release states two interesting items from the report:

Good Performance and Additional Investment – family offices are generally happy with the performance of hedge funds and will commit more money to funds within the next twelve months.

Transparency – the release states that more than 70% of single family offices said that a lack of transparency in their hedge fund investments is concerning.  Additionally, a director of Rothstein Kass is quoted as saying  “while high-net-worth individuals generally recognize advantages of hedge fund investing, they are frequently confounded by the growing roster of products and services available.”  This really comes as no surprise and signals that hedge fund due diligence will become a major focus from here on out.  Transparency is achieved not only through the hedge fund manager, but also through hedge fund service providers who have developed technology solutions to offer to hedge fund managers.  On a going forward basis hedge funds are going to need to be more transparent.  For more information, please also see:

3.  Prime Broker continues to expand during industry changes. (Link to release) The prime brokerage industry is going through a lot of changes currently as the biggest prime brokerage firms, Goldman and Merrill have changed into bank holding companies.  Additionally, with the collapse of Lehman, the conventional wisdom is for larger hedge funds to prime with multiple brokers.  As this trend continues to develop I expect that more firms will jump into the prime brokerage business and that prime brokers will begin to offer more back office and administration services to hedge funds.  New and surviving hedge funds should benefit as prices decrease and quality of services increase.

4.  Hedge fund administration and back office firm, announced that it is expanding into hedge fund prime brokerage. (Link to release) This press release highlights two specific interesting trends in the hedge fund industry.  The first is the move from segregated service providers to shows which provide a whole suite of services including back office, admin and prime brokerage.  The second trend is the move from one main prime broker to housing assets at many prime brokerage firms.  We saw with the collapse at Lehman and the corresponding freeze of some hedge fund assets, that small and large funds alike want to diversify across brokers and custodians.  I believe Conifer is the first in a wave of admin/ back office firms which will put a shingle out as a mini-prime or introducing prime broker.

Conclusion

While none of these individually provide conclusive evidence that the industry will remain strong in the coming months, it does show that people in the industry are investing in the infrastructure which will allow the industry to expand in the coming years. Please feel free to contact us if you have questions or comments on any of the above.