Implications for Hedge Fund Managers of Recent Insider Trading Enforcement Initiatives (Part Two of Three)

Recent criminal and civil enforcement actions allege that hedge fund manager personnel obtained material nonpublic information from employees and experts of at least one expert network firm.  See “How Can Hedge Fund Managers Avoid Insider Trading Violations When Using Expert Networks?  (Part One of Two),” Hedge Fund Law Report, Vol. 4, No. 5 (Feb. 10, 2011).  While the merits of these actions remain to be determined, the impact of these actions on the hedge fund industry has already been considerable.  At least one hedge fund management firm that was raided by the FBI has announced that it will wind down, and other firms that were raided by the FBI have sustained sizable redemptions.  Even for managers that have not been directly involved, the renewed focus of the SEC, DOJ and FBI on insider trading has caused hedge fund managers to revisit their insider trading compliance policies and procedures.  See “The SEC’s New Focus on Insider Trading by Hedge Funds,” Hedge Fund Law Report, Vol. 3, No. 22 (Jun. 3, 2010).  While the legal principles and theories of insider trading have not changed, the application of those principles and theories to new methods of investment research may be redefining the scope of permitted activity.  To assist hedge fund managers in understanding what is permitted and what is prohibited in the current environment, how to conduct investment research without violating insider trading law and how to design compliance policies and procedures that reflect the new enforcement reality, the Regulatory Compliance Association’s 2011 Spring Asset Management Thought Leadership Symposium will feature a session entitled “Insider Trading – Analyzing and Addressing the Latest Enforcement Initiatives.”  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 Insider Trading Enforcement session at the RCA’s April Symposium: Robert B. Van Grover, Partner at Seward & Kissel LLP; John Robbins, Managing Director and Global Head of Compliance at Babson Capital Management LLC; and Adam J. Wasserman, Partner at Dechert LLP.  The goal of these interviews is to enable hedge fund managers to continue performing rigorous and productive research while avoiding insider trading violations.  We are publishing these interviews as a three-part series.  The full text of our interview with Robert Van Grover was included in last week’s issue of the Hedge Fund Law Report.  See “Implications for Hedge Fund Managers of Recent Insider Trading Enforcement Initiatives (Part One of Three),” Hedge Fund Law Report, Vol. 4, No. 7 (Feb. 25, 2011).  The full text of our interview with John Robbins is included in this issue, and our interview with Adam Wasserman will be published in next week’s issue.  Our interview with John Robbins, included in full below, covered a wide range of relevant topics, including but not limited to: typical ways in which a hedge fund manager might acquire material nonpublic information (MNPI) about an issuer that would inhibit trading; designing “wall crossing” policies and procedures; the possibility of automating analysis of wall-crossing inquiries; points that CCOs should keep in mind when designing and implementing effective information walls; what exactly inclusion of a name on the restricted list means; how managers can enforce the prohibition on trading names on the restricted list in funds and personal accounts; the utility of Big Boy letters in SEC and private actions (including a reference to an important SEC enforcement action involving Big Boy letters); the possibility of complying with SEC Rule 10b5-1 through the use of “information walls”; the difference between a restricted list and a watch list; who at a hedge fund management company should have access to a watch list; and how to determine when a name should be added to or removed from a restricted list.

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