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Cole-Frieman & Mallon LLP 4th Quarter Newsletter

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Below is our quarterly newsletter which was sent to our clients and friends last week. If you would like to receive this news letter, please contact us.

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Clients and Friends:

There have been a number of new regulatory developments over the past three plus months of concern to investment managers, namely:

  • California Private Fund Adviser Exemption
  • CFTC Regulatory Changes
  • Foreign Account Tax Compliance Act (“FATCA”)
  • JOBS Act

Below we detail these developments, provide some of our thoughts on the current regulatory environment and outline some items that managers should be aware of as this year comes to a close. Please feel free to contact us with any thoughts or questions on these matters.

California Private Fund Adviser Exemption

On August 27, 2012 the California Office of Administrative Law approved the long awaited private fund adviser exemption (“Private Fund Adviser Exemption”). The immediately effective exemption is only available to advisers who provide advice solely to “qualifying private funds,” which include venture capital funds, Section 3(c)(1) funds and Section 3(c)(7) funds. The Private Fund Adviser Exemption is not available to advisers who also manage separate accounts. Advisers to qualifying private funds who qualify for the Private Fund Adviser Exemption and manage less than $100,000,000 can file as “exempt reporting advisers” and thereby avoid the registration and compliance requirements in California. Specific requirements for advisers seeking to rely on the Private Fund Adviser Exemption can be found here.

CFTC Expanded Jurisdiction Over Certain Swaps

With the issuance of new rules from the CFTC affecting swaps, investment managers that trade swaps will need to determine whether the swaps they trade will subject the manager to CFTC regulation; and if so, whether CFTC registration is required or an exemption from registration is available. As of October 12, 2012 an investment manager that trades swaps covered by the new rules may find itself subject to regulation by the CFTC, even if the adviser does not trade futures or commodity interests. Similarly, an adviser to a commodity pool that trades swaps and is currently relying on Regulation 4.13(a)(3) – the “de minimis” exemption from CFTC regulation for advisers who trade only minimal futures, commodity interests and swaps – will need to reassess whether it can still fit within this exemption after taking into account its swaps trading.

CFTC Regulatory Changes

Recent regulatory changes, which become effective on December 31, 2012, require advisers to private funds or accounts using commodity futures, commodity options and other CFTC regulated derivatives to register with the CFTC or rely on an exemption from such registration. These changes include:

  • CFTC Regulation 4.13(a)(4) Exemption Rescinded: Managers to funds offered only to “qualified eligible persons” have previously relied on this exemption from CPO registration. This exemption will no longer be available as of December 31, 2012.
  • CFTC Regulation 4.13(a)(3) De Minimus Exemption: Managers to commodity pools with a limited use of commodity interests can rely on this exemption from registration as a CPO. However, with the CFTC’s extended jurisdiction over swaps, many pools may no longer qualify and must register as a CPO with the CFTC.
  • Annual Re-Certification: CPOs and CTAs relying on exemptions from registration will be required to re-certify their qualifications annually on a calendar-year basis, beginning on December 31, 2012.
  • New Reporting Requirements: Registered CPOs and CTAs must file certain new reports and include standardized risk disclosure to describe risks of swap transactions in the disclosure documents.

FATCA

Enacted by Congress as part of the HIRE Act of 2010 with the goal to combat tax evasion, FATCA will go into effect on January 1, 2013. The new regulations will require financial institutions to identify and disclose direct and indirect U.S. investors and withhold U.S. income tax on nonresident aliens and foreign corporations, or be subject to a 30% FATCA tax. Foreign financial institutions, which include hedge funds, funds of funds, commodity pools and other offshore investment vehicles, will be required to enter into an agreement with the IRS by June 30, 2013 to avoid being subject to the FATCA tax. Domestic funds will also need to determine the FATCA status of each of their investors and will be subject to new withholding and reporting requirements for any recalcitrant investors. Final regulations have not been promulgated, however, managers should discuss compliance methods with their administrators and other third party service providers.

Jumpstart Our Business Startups Act (“JOBS Act”)

The JOBS Act, signed into law in April 2012, has two big implications for the hedge fund industry:

  • The first, which was effective immediately, raised the maximum number of investors permitted in a 3(c)(7) fund from 499 to 1,999. Private funds relying on the 3(c)(1) exemption are still limited to 99 investors.
  • The second, which is still awaiting final rules by the SEC, lifts the ban on general solicitation and advertising under Rule 506 of Regulation D. The proposed amendments would allow issuers to use general solicitation and general advertising to offer securities, provided that the issuer takes reasonable steps to verify that the purchasers of the securities are accredited investors.

Managers should remember that while general solicitations may be allowable in the future, these rules are not yet final. In addition, all registered investment advisers will still be subject to applicable advertising regulations under the Investment Advisers Act. CFTC registered managers are still subject to certain CFTC regulations that prohibit marketing to the public, and managers that intend to rely on the 4.13(a)(3) “de minimus” exemption (discussed above) are also prohibited from marketing to the public.

Form PF

Managers to private funds who are registered (or required to be registered) as investment advisers with the SEC and have at least $150 million under management, will need to file Form PF with the SEC. The filings must be made either on a quarterly or annual basis, depending on the type of private fund and regulatory assets under management. For managers to hedge funds, the filings and compliance dates are as follows:

  • Greater than $5 billion regulatory AUM – The filing must be made on a quarterly basis, within 60 days of the end of each fiscal quarter, beginning on June 15, 2012.
  • At least $1.5 billion (but less than $5 billion) in regulatory AUM – The filing must be made on a quarterly basis, within 60 days of the end of each fiscal quarter, beginning on December 15, 2012.
  • At least $150 million (but less than $1.5 billion) in regulatory AUM – The filing must be made on an annual basis, within 120 days of the end of each fiscal year, beginning on December 15, 2012.

4th Quarter Items

  • January 1, 2013 Fund Launches – Managers seeking to launch a fund on the first of the year should begin the fund formation process as soon as possible in order to give themselves and service providers ample time to prepare during the busy season.
  • CFTC Regulatory Matters:
    • Managers should review the recently expanded list of CFTC regulated products to determine whether they will be subject to CFTC regulation. CPOs currently relying on CFTC Regulation 4.14(a)(4) will need to assess whether the commodity pool is eligible for the “de minimis” exemption or register with the CFTC as a CPO by December 31, 2012. CPOs currently relying on CFTC Regulation 4.13(a)(3) will need to evaluate whether the commodity pool is still eligible for the exemption.
    • CPOs and CTAs that have exemptive relief under CFTC Regulations will need to reconfirm their qualifications by December 31, 2012.
  • IARD Renewal – FINRA will be sending out notice reminders to facilitate the annual renewal of investment adviser registration. Preliminary Renewal Statements will be made available on IARD on November 12, 2012.
  • Form PF – As discussed above, managers to private funds with less than $5 billion regulatory AUM will need to make Form PF filings with the SEC beginning on December 15, 2012, on either a quarterly or annual basis, depending on the types of private funds managed and regulatory AUM.

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Cole-Frieman & Mallon LLP is a premier boutique investment management law firm, providing top-tier, responsive and cost-effective legal solutions for financial services matters. Headquartered in San Francisco, Cole-Frieman & Mallon LLP has an international practice that services both start-up investment managers as well as multi-billion dollar firms. The firm provides a full suite of legal services to the investment management community, including: hedge fund, private equity fund, and venture capital fund formation, adviser registration, counterparty documentation, SEC, CFTC, NFA and FINRA matters, seed deals, hedge fund due diligence, employment and compensation matters, and routine business matters. The firm also publishes the prominent Hedge Fund Law Blog (www.hedgefundlawblog.com) which focuses on legal issues that impact the hedge fund community. For more information please visit us at: www.colefrieman.com.

This newsletter is published as a source of information only for clients and friends of the firm and should not be construed as legal advice or opinion on any specific facts or circumstances. The mailing of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Circular 230 Disclosure: Pursuant to regulations governing practice before the Internal Revenue Service, any tax advice contained herein is not intended or written to be used and cannot be used by a taxpayer for the purpose of avoiding tax penalties that may be imposed on the taxpayer. Cole-Frieman & Mallon LLP is a California limited liability partnership and this publication may be considered attorney advertising in some jurisdictions.