Ongoing Legal Issues For Hedge Fund Managers
While many of the posts on this blog deal with start-up and regulatory issues that hedge fund managers face, we also are aware that there are many ongoing legal issues which affect the business of the fund. Below is a guest post from Karl Cole-Frieman on hedge fund rehypothication and the prime brokerage relationship.
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What is Rehypothication?
By Karl Cole-Frieman, www.colefrieman.com
One of the most frequent questions that I am asked these days is to explain the term “rehypothication” in the context of a prime brokerage agreement. The concept of rehypothication has been imbedded in the credit arrangements of prime brokerage agreements for years, but until 2008 and the collapse of Bear Sterns and Lehman Brothers, it was rarely discussed (except by certain lawyers who negotiate these agreements). In the simplest terms, hypothication is the posting of securities or other collateral to a prime broker in exchange for credit or margin. Rehypothication is the further pledging or lending by the prime broker of the already hypothecated securities or other collateral by the customer for its own purposes.
Prime Brokerage and Rehypothication
In modern prime brokerage, rehypothication is deeply ingrained in the business model of the major prime brokers. Typically, hedge fund customer assets are rehypothicated to other banks to raise cash for the prime brokers. Allowing the prime brokers to rehypothicate assets has historically kept down the cost of borrowing money for hedge fund managers. In recent years, hedge funds have benefited from this arrangement by obtaining very cheap margin pricing.
Bankruptcy of a Prime Broker
The problem for hedge fund managers is that if there is a bankruptcy filing of their prime broker, hedge funds may have difficulty getting their rehypothicated assets back, particularly if these assets are held by the prime broker’s London affiliate, as the UK has more relaxed rules regarding rehypothication. A number of highly successful managers had to literally shut their doors in September 2008 because their assets were tied up in Lehman Brothers’ London affiliate. Lehman filed for bankruptcy in September 2008, and Pricewaterhouse Coopers, Lehman’s European administrator, currently estimates that assets may be returned to clients in the first quarter of 2010 – a year and a half later.
Hedge Fund Managers and Rehypothication
It is important for hedge fund managers to understand this concept of rehypothication for several reasons. First, managers need to take ownership of their prime brokerage arrangements and understand them in general. It has been my experience that many managers that take extreme care in making portfolio decisions pay absolutely no attention to their prime brokerage or custody arrangements. As the events of 2008 demonstrated, they do so at their peril. Imagine being up for the year, and then losing everything because the manager neglected to monitor their prime brokerage and custody arrangements.
Second, investors are asking about it. The concept of rehypothication entered the hedge fund vernacular in 2008 and is here to stay. Investors now frequently ask about rehypothication, and other prime brokerage concepts/arrangements, in due diligence, and there are a lot of misconceptions about the term. Nevertheless, especially in the current environment, a lack of understanding about prime brokerage, custody, etc . . . can make the difference in receiving an allocation from an investor or cause a manager to fail operational due diligence. Managers need to be prepared to discuss these concepts and be aware of the terms in their own prime brokerage agreements.
To find out more about rehypothication and other topics relating to prime brokerage or custody, please contact Karl Cole-Frieman of Cole-Frieman & Mallon LLP (www.colefrieman.com) at 415-352-2300 or [email protected].
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Other related hedge fund law and start up articles include: