By July 21, 2011, many hedge fund managers that previously were not required to register with the SEC as investment advisers will be required to register. Specifically, two categories of hedge fund managers will be required to register with the SEC as investment advisers: (1) hedge fund managers with assets under management in the U.S. of at least $150 million that manage solely private funds; and (2) hedge fund managers with assets under management in the U.S. between $100 million and $150 million that manage at least one private fund and at least one other type of investment vehicle (for example, a managed account). Registration will subject previously unregistered hedge fund managers to a range of new regulatory obligations and burdens. One of the most notable new burdens is that registered hedge fund managers will be subject to SEC examinations. (Generally, unregistered hedge fund managers are not subject to examinations, though they may be subject to subpoenas or information requests from the SEC where the agency suspects fraud or violation of the federal securities laws.) To assist newly registered (or soon to be registered) hedge fund managers and other registered investment advisers in preparing for, handling and surviving SEC examinations, the Regulatory Compliance Association’s 2011 Spring Asset Management Thought Leadership Symposium will feature an extended 1.5 hour session entitled “Regulatory Examinations – Briefing on Latest Inquiries from SEC and NFA Staff.” That RCA Symposium will take place on April 7, 2011 at the Marriott Marquis in Times Square in New York. The Hedge Fund Law Report recently conducted detailed interviews with three of the thought leaders scheduled to participate in the Regulatory Examinations session at the RCA’s April Symposium: Steven A. Yadegari, Senior Vice President & General Counsel at Cramer Rosenthal McGlynn, LLC; Stephen A. McShea, General Counsel & Chief Compliance Officer at Larch Lane Advisors LLC; and Matthew Eisenberg, Partner at Finn Dixon & Herling LLP. Those interviews provide a preview of the topics to be discussed at the RCA Symposium, and offer detailed insights, practical strategies and actionable recommendations for newly registered hedge fund managers facing the prospect of regulatory examinations – in many cases, for the first time. We are publishing these interviews as a three-part series. The full text of our interview with Steven Yadegari was included in last week’s issue of the Hedge Fund Law Report. See “What Do Hedge Fund Managers Need to Know to Prepare For, Handle and Survive SEC Examinations? (Part One of Three)
,” Hedge Fund Law Report, Vol. 4, No. 4 (Feb. 3, 2011); our interview with Stephen McShea is included in this issue; and our interview with Matthew Eisenberg will be published in next week’s issue. Our interview with Stephen McShea, included in full below, covered a wide range of relevant topics, including but not limited to: how the length, depth and coverage period of examinations of hedge fund managers have evolved; the average length of time between notification and initiation of an exam; grounds (if any) upon which the SEC may grant a delayed exam start date; trends with respect to the number of additional requests that hedge fund managers can expect during an exam; the role of presentations in the exam process (as distinct from interviews with key people); the advisability of creating a regulatory exam preparation team; the utility of mock examinations; the importance of getting all management company personnel on the same page with respect to the business of the management company and its products; the difference between compliance policies and procedures in theory and in practice; regulatory attention on the allocation of responsibility (internally and externally) for specific functions; creating a written matrix of responsibilities; steps hedge fund managers can take to strike the right “tone at the top”; how to use prior deficiency letters; what to say and not to say at exit interviews; and the relevance for examinations of resource constraints at the SEC.