For Hedge Fund Managers, How Would a Statutory Definition of “Fiduciary Duty” Affect the Scope of the Duty and the Standard for Breach?

In its first meeting, the SEC’s recently convened Investor Advisory Committee identified defining fiduciary duty as one of its discussion topics.  In response, four financial planning and investment advisory industry groups sent a letter to the Investor Advisory Committee opposing a definition of fiduciary duty and supporting the “workability” of the current approach which, according to the letter, involves applying common law principles to specific facts and circumstances.  This debate over whether to define fiduciary duty has been given added relevance by the Obama administration’s proposal on July 10, 2009 of the Investor Protection Act of 2009 (IPA), which would for the first time define fiduciary duty by statute.  See “What Precisely Is ‘Fiduciary Duty’ in the Hedge Fund Context, and To Whom is it Owed?,” Hedge Fund Law Report, Vol. 2, No. 29 (Jul. 23, 2009).  For hedge fund managers, there are two primary questions arising out of this debate: (1) to whom is a fiduciary duty owed; and (2) what is the standard for breach of fiduciary duty?  The answers to these questions can dramatically alter the legal landscape in which hedge funds operate.  Accordingly, this article addresses both questions, both under current law and as the law may evolve following passage of the IPA.

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