Articles Posted in Private Funds

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Written by Jay B. Gould and Michael Wu

On October 9, 2011 Governor Brown signed into law Senate Bill 398 which is intended to clarify the current law regarding placement agents and lobbyist requirements.

In 2009, AB 1584 was enacted.  AB 1584 imposed disclosure requirements for investment placement agents associated with public pension funds in California.  It required public employee pension funds to adopt a disclosure policy requiring the disclosure of fees paid to investment placement agents and contributions and gifts made by placement agents to board and staff members.

In 2010, AB 1743 was passed.  That bill subjected investment managers and placement agents to lobbyist registration.  It also defined “placement agents” and revised the definition of “lobbyist” to include a placement agent.  A placement agent includes employees of an external manager unless the employee spends more than 1/3 of his time managing assets for the external manager.  AB 1743 also exempts from lobbyist registration requirements those advisers and broker-dealers who are registered with the SEC, obtained the business through competitive bidding process, and agreed to the California fiduciary standard imposed on public employee pension fund trustees.

The newly enacted and immediately effective SB 398 changes the current law to this extent:

1.  It revises the definition of “external manager” to mean a person or an investment vehicle managing a portfolio of securities or other assets, or a person managing an investment fund offering an ownership interest in the investment fund to a board or an investment vehicle.

2.  It revises the definition of “placement agent” to include an investment fund managed by an external manager offering investment management services of the external manager and an ownership interest in an investment fund managed by the external manager.

3.  It defines “investment fund” and includes private equity fund, public equity fund, venture capital fund, hedge fund, fixed income fund, real estate fund, infrastructure fund, or similar pooled investment entity.  It excludes an investment company that is registered with the SEC pursuant to the Investment Company Act of 1940 and that makes a public offering of its securities.

4.  It defines “investment vehicle” to mean a “corporation, partnership, limited partnership, limited liability company, association, or other entity, either domestic or foreign, managed by an external manager in which a board is the majority investor and that is organized in order to invest with, or retain the investment management services of, other external managers.”

5.  The exemptions from lobbyist registration for managers of local retirement system funds are extended to include the three exemptions similarly available to managers of state retirement system funds.

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Written by Michael Wu

On September 29, 2011, the SEC’s examination staff issued a Risk Alert warning of significant concerns regarding trading through sub-accounts, and offered suggestions to help securities industry firms address these risks.  In the alert, the staff identified certain risks associated with the master/sub-account trading model such as: i) money laundering, ii) insider trading, iii) market manipulation, iv) account intrusions, v) information security, vi) unregistered broker-dealer activity, and (vii) excessive leverage.  The alert is the first in a continuing series of Risk Alerts that the staff expects to issue.

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Written by Michael Wu

The SEC is recommending filing fees related to the new report filing on Form ADV for exempt reporting advisers and Form PF filing for private fund advisers.  The filing fee for exempt reporting advisers is expected to be $150 for each initial and annual report on Form ADV.  The filing fee for private fund advisers’ Form PF filing is expected to be $150 for each quarterly and annual filing.  Both Form ADV report and Form PF filings will be submitted through FINRA’s Investment Adviser Registration Depository system (IARD).

A full text of the SEC notice is available here.

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Written by Michael Wu

Foreign Account Tax Compliance Act (FATCA), comprising of sections 1471 through 1474 of the Internal Revenue Code, was enacted in March 2010 as part of the Hiring Incentives to Restore Employment (HIRE) Act.  FATCA imposes information reporting requirements on foreign financial institutions (FFIs) and withholding, documentation, and reporting requirements with respect to certain payments made to certain foreign entities.  IRS Notice 2010-60 was released on August 29, 2010 to provide preliminary guidance regarding the implementation of FATCA.  IRS Notice 2011-34 was released on April 8, 2011 which modified and supplemented Notice 2010-60.  On July 14, 2011, the IRS released IRS Notice 2011-53 (the “Notice”).  This Notice provides and describes the timeline for FFIs and U.S. withholding agents to implement the various FATCA requirements.

Phased Implementation

The IRS anticipates issuing proposed regulations incorporating guidance provided in all three notices by December 31, 2011 and final regulations along with final form of FFI Agreement and reporting forms in the summer of 2012.

In summary, the phased implementation of FATCA is as follows:

January 1, 2013:  IRS will begin accepting FFI Applications no later than this date.

June 30, 2013:  FFIs must register with the IRS and enter into FFI Agreement by this date to avoid the 30% withholding tax.

  • By entering into FFI Agreements by June 30, 2013, withholding agents are given sufficient time to refrain from withholding on those participating FFIs by January 1, 2014.
  • The effective date of FFI Agreements entered into on or before June 30, 2013 will be July 1, 2013.
  • The effective date of FFI Agreements entered into after June 30, 2013 will be the date the FFIs entered into such agreements.
  • FFIs who enter into FFI Agreements after June 30, 2013 but before January 1, 2014 will be considered FFIs for 2014 but might not be identified as FFIs in time to prevent withholding beginning January 1, 2014.

January 1, 2014:  IRS begins 30% withholding tax on certain payments by non-participating FFIs and account holders who are unwilling to provide the required information.

January 1, 2015:  Withholding on all withholdable payments will be fully phased in.

Due Diligence

Due diligence procedures are required in order for FFIs to identify U.S. accounts.  These procedures were prescribed in the prior IRS notices and will be finalized in forthcoming regulations.  The Notice provides phased implementation of these due diligence procedures.  A participating FFI with pre-existing private banking accounts with a balance or value equal to or greater than $500,000 on the FFI Agreement’s effective date has one year from its FFI Agreement’s effective date to complete its due diligence procedures.  Those with pre-existing private banking accounts with a balance or value of less than $500,000 must have completed their due diligence procedures by December 31, 2014 or within one year following their FFI Agreements’ effective date.  For all other pre-existing accounts, a participating FFI has two years from its FFI Agreement’s effective date to complete due diligence procedures.

Reporting

FATCA requires a participating FFI to annually report to the IRS certain information regarding its U.S. accounts.  An account for which a participating FFI has received a Form W-9 from the account holder (or if the account is held by a U.S. owned foreign entity, from the substantial owner of such entity) by June 30, 2014, must report the account to the IRS as a U.S. account by September 30, 2014.  By this first reporting deadline, a participating FFI needs to report only: i) the name, address and TIN of the U.S. account holder, ii) the account balance as of December 31, 2013, or if the account was closed after the effective date of the FFI’s FFI Agreement, the account balance immediately before such account closure, and iii) the account number.

Additional information will be required in subsequent reporting years.

Withholding

The Notice provides delayed implementation of the 30% withholding requirement.  For withholdable payments made on or after January 1, 2014, withholding agents will be obligated to withhold the 30% tax only on U.S. source FDAP payments.  (FDAP means fixed, determinable, annual or periodical income or payments and includes interest and dividends.)  For payments made on or after January 1, 2015, withholding agents will be obligated to withhold the 30% tax on all withholdable payments, including gross proceeds.

The Notice also provides that a participating FFI is not obligated to withhold with respect to passthru payments made before January 1, 2015.  (A passthru payment is a withholdable payment or other payment to the extent attributable to a withholdable payment.)  FATCA requires a participating FFI to withhold the 30% tax on passthru payments made to a recalcitrant account holder or non-participating FFI.

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Written by Jay Gould

Pillsbury’s Investment Funds & Investment Management team has submitted a comment letter to the California Department of Corporations (the “DOC”) on behalf of the California Hedge Fund Association in connection with the DOC’s recently proposed amendments to the California custody rule.

In its letter to the Commissioner, Pillsbury requested that the DOC amend the California custody rule in a manner that balances investor protection and the need for fund managers to maintain confidentiality of certain portfolio positions.  Specifically, the letter requested  that the quarterly reports California-registered advisers to private funds are required to send to their investors be required to disclose only those positions that comprise more than 5% of the fund’s assets, and that the names of short positions not be disclosed at all, but be provided as an aggregate number.  “Implementing our suggestions would be consistent with the quarterly disclosure of schedule of investments based on the FASB’s U.S. financial reporting standards, and would also protect fund investors from short squeezes,” explained Jay Gould, head of the Pillsbury Investment Funds & Investment Management team.

The letter was provided in response to the  DOC Commissioner’s invitation for comment on the proposed changes to the California custody rule that will apply to California-registered investment advisers, including those investment managers that are currently either registered with the Securities and Exchange Commission or are not registered at all.  By February 15, 2012, investment advisers to private funds with less than $100 million under management will need to register with the DOC, if they have not already done so.

“The California Hedge Fund Association expects to provide comments to the DOC in connection with future rulemaking proposals and encourages California-based fund managers to become active in this process,” explains Chris Ainsworth, President of the Association.

A full text of the letter to the Commissioner is available here.

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Written by Bruce Frumerman, guest contributor

Bruce Frumerman is the CEO of Frumerman & Nemeth Inc., a communications and sales marketing consultancy that assists financial services firms create brand identities for their organizations and develop and implement effective new marketing strategies and programs.

In the article below, Mr. Frumerman offers effective marketing strategies for hedge fund managers to stay competitive and successful in the business.  This article first appeared in Reuters HedgeWorld on July 18 and is re-printed with permission below.

Rising competition among money managers is one of the key topics covered in Boston Consulting Group’s recently released ninth annual study of the worldwide asset management industry, Building on Success: Global Asset Management 2011…

A full text of the article is available here.

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Written by Jay Gould, Ildiko Duckor and Michael Wu

Effective on September 19, 2011, investors that pay performance fees to an adviser must either have at least $1 million managed by the adviser or a net worth of at least $2 million.

As mandated by the Dodd-Frank Act, the SEC today issued an order that raises two of the thresholds that determine whether an investment adviser can charge its clients performance fees.  As discussed in the article we posted here on May 11, under the current Rule 205-3 of the Investment Advisers Act of 1940, an investment adviser may charge its investors a performance fee if (i) the investor has at least $750,000 under management with the investment adviser (“asset-under-management test”), or (ii) the investment adviser reasonably believes that the investor has a net worth of more than $1.5 million (“net worth test”).  Today’s SEC order adjusted the amounts for the asset-under-management test to $1 million and the net worth test to $2 million.  The SEC order is effective on September 19, 2011.

Accordingly, it is important for investment fund managers to amend their offering materials to comply with the new requirements of Rule 205-3 under the Advisers Act.

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Written by Jay Gould and Michael Wu

On June 22, 2011, the Securities and Exchange Commission (SEC) adopted final rules that implement provisions of Title IV of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) amending the Investment Advisers Act of 1940 (the “Advisers Act”).   The amendments include:

  • Statutory Threshold for SEC Registration.   The Dodd-Frank Act increases the threshold for SEC registration by creating a new category of advisers called “mid-sized advisers.”  A mid-sized adviser has assets under management between $25 million and $100 million.  If the mid-sized adviser’s principal office and place of business is located in a state that requires it to register as an investment adviser, the adviser must register with the state.  A mid-sized adviser must register with the SEC if it is not required to register in the state where it maintains its principal office and place of business, or if registered with that state, the adviser would not be subject to examination by that state’s securities commissioner.
  • Transition to State Registration, Registration Deadline.

    Existing SEC-registered adviser as of January 1, 2012 – must amend its Form ADV no later than March 30, 2012.Mid-sized adviser no longer eligible for SEC registration – must amend its Form ADV no later than March 30, 2012 to switch to state registration and withdraw its SEC registration by filing Form ADV-W no later than June 28, 2012.

    New Applicants.  Until July 21, 2011 (effective date of the final rules), advisers applying for registration that qualify as mid-sized advisers may register with either the SEC or the appropriate state securities authority.  Thereafter, mid-sized advisers must register with the appropriate state securities authority.

  • Exempt Reporting Advisers.  These are advisers that rely on either the venture capital exemption or the private fund advisers exemption.  The final rules require these exempt reporting advisers to submit an annual report with the SEC by filing an abbreviated Form ADV Part 1 completing only Items 1 (Identifying Information), 2.B (SEC Reporting by Exempt Reporting Advisers), 3 (Form of Organization), 6 (Other Business Activities), 7 (Financial Industry Affiliations), 10 (Control Persons), 11 (Disclosure Information), and any corresponding section of Schedules A, B, C and D.  There will be fees associated with the filing which will be the same as those for registered advisers.
  • Form ADV.  The SEC is amending Part 1 of Form ADV to require advisers to provide additional information: 1) about private funds they advise, 2) about their advisory business and business practices that may present conflicts of interest, and 3) about their non-advisory activities and financial industry affiliations.
  • Family Office exemption.  By defining “family office,” the SEC is allowing family offices to continue to be exempt from regulation of the Advisers Act.  The final rules expanded the exemption by including additional categories of family members and key employees as family clients.
  • Pay-to-Play Rule.  The final rules permit an adviser to pay a registered municipal advisor, or an SEC registered investment adviser or broker-dealer, to act as placement agent to solicit government entities on its behalf, so long as the municipal advisor is subject to the MSRB-adopted pay-to-play rule, or the SEC registered adviser or broker-dealer is subject to a FINRA-adopted pay-to-play rule, that is at least as stringent as the investment adviser pay-to-play rule.

The SEC also adopted final rules that eliminated the private adviser exemption under the Advisers Act and created three new exemptions from SEC registration for:

  • Advisers solely to venture capital funds (venture capital fund exemption).  The final rules define “venture capital fund” as a private fund that: 1) holds no more than 20% of the fund’s capital commitments in non-qualifying investments (other than short-term holdings); 2) does not borrow or is not leveraged except for a limited short-term borrowing; 3) does not offer redemption or liquidity rights to its investors; 4) represents itself to investors as pursuing a venture capital strategy; and 5) is not registered under the Investment Company Act of 1940 and is not a business development company.The SEC also adopted the grandfathering provision for this exemption provided the following three requirements are met by the fund: (i) represented to investors that it pursues a venture capital strategy; (ii) has sold securities prior to December 31, 2010; and (iii) does not sell securities to, or accept any capital commitments from, any person after July 21, 2011.
  • Advisers solely to private funds with less than $150 million in assets under management in the U.S. (private fund adviser exemption).  The instructions to Form ADV will be revised to provide a uniform method of calculating assets under management for regulatory purposes.
  • Certain foreign advisers without a place of business in the U.S.  A non-U.S. adviser that has no place of business in the U.S. is not required to register with the SEC if it has fewer than total 15 U.S. clients and private fund investors, has less than $25 million in aggregate assets under management from U.S. clients and private fund investors, and does not hold itself out to the public as an investment adviser.
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Written by Jay Gould and Michael Wu

On March 2, 2011, Pillsbury’s Investment Fund and Investment Management group (“Pillsbury IFIM Group”) submitted a comment letter to the North American Securities Administrator’s Association (the “NASAA”) on behalf of the California Hedge Fund Association and the Florida Alternative Investment Association.  The letter to the NASAA was intended to provide comments regarding the proposed model custody rule of the NASAA that was released on February 17, 2011.  A copy of the March 2, 2011 comment letter was posted here on March 8, 2011.

On May 23, 2011, Pillsbury IFIM Group submitted a second comment letter on behalf of the California and Florida fund groups to the NASAA commenting on the re-proposal of the model custody rule on April 18, 2011 (the “Re-Proposed Rule”).  The Re-Proposed Rule reflected certain suggestions made in the first letter to the NASAA, but would require that all portfolio positions be provided to all fund investors at the end of each quarter.  The letter requested that the NASAA limit quarter end disclosure to positions that comprise 5% or more of a fund’s portfolio and exclude all disclosure with respect to short positions.  Pillsbury believes that it is critical for fund managers and hedge fund industry groups to comment on the NASAA rule proposals, as it is likely that many states will simply adopt the NASAA rules without providing a robust public comment process as a result of the many new registrants for which the states will be responsible when the investment adviser registration provisions of Dodd Frank Act are fully implemented.

A full text of the second letter can be found here.

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Written by Michael Wu

The Securities and Exchange Commission (“SEC”) has adopted rules implementing the Dodd-Frank Wall Street Reform and Consumer Protection Act’s (“Dodd-Frank Act”) Whistleblower Program.  The Whistleblower Program requires the SEC to pay awards, under regulations prescribed by the SEC and subject to certain limitations, to eligible whistleblowers who voluntarily provide the SEC with original information about a violation of the federal securities laws, or a rule or regulation promulgated by the SEC, that leads to the successful enforcement of a covered judicial or administrative action, or a related action that results in monetary sanctions of more than $1,000,000.  Dodd-Frank Act also prohibits retaliation by employers against individuals who provide the SEC with information about possible securities violations.

To view a full text of the Final Rule, please click here.