On November 1, 2010, the Municipal Securities Rulemaking Board (MSRB) filed proposed rule changes with the Securities and Exchange Commission (SEC). See “Third-Party Marketers that Solicit Public Pension Fund Investments on Behalf of Hedge Funds May Have to Register with the SEC within Three Weeks
,” Hedge Fund Law Report, Vol. 3, No. 35 (Sep. 10, 2010). Those proposed rule changes are of interest to the hedge fund community for five primary reasons. First, they clarify the definition of a “municipal advisor” for purposes of Section 975 of Dodd-Frank. That definition likely encompasses placement agents providing services to hedge funds and other entities that provide similar services to hedge funds but call themselves something else (such as “finders,” “solicitors” or “cash solicitors”). Second, the proposed rule changes impose three procedural requirements on municipal advisors. Third, they impose two substantive requirements on municipal advisors. Fourth, the MSRB’s Notice 2010-47
(Notice), announcing the filing of the proposed rule changes, includes a roadmap of the MSRB’s rulemaking agenda for “the coming months and years,” including rules that will directly affect hedge fund placement agents. Fifth, the Notice contains a portentous endnote relating to the “federal fiduciary duty” of municipal advisors, and the entities to whom that duty is owed. This article discusses each of these five points – and identifies the questions that placement agents have to ask and answer today based on these points.