U.S. District Court Dismisses All Claims by Seattle City Employees’ Retirement System Against Hedge Fund Epsilon Global in Pension Fund’s Suit Seeking to Compel Epsilon to Produce Audited Financial Statements

Plaintiff in this action is the Seattle City Employees’ Retirement System (SCERS) which, from December 2003 through December 2004, had invested $20 million in defendant hedge fund Epsilon Global Active Value Fund II, Ltd. (Epsilon or Fund).  Epsilon was a feeder fund that invested substantially all of its assets in defendant Epsilon Global Master Fund II, Ltd. (Master Fund).  The Fund’s offering documents required it to provide an annual report and an annual audited financial statement to each investor within 120 days after the end of its fiscal year.  Following the liquidity crises of 2008, Epsilon failed to produce an annual report or audited financial statements.  In January 2010, as Epsilon continued to fail to produce the requisite reports, SCERS notified Epsilon that it desired to redeem its entire investment.  Epsilon responded that it had suspended redemptions pending completion of its audit.  After negotiations for a partial redemption of SCERS’ position failed, SCERS commenced this action against the Master Fund, Epsilon, its general partner, its investment manager and one of the Fund’s principals.  SCERS sought a temporary restraining order and preliminary injunction directing the Fund to produce the requisite annual reports and prohibiting the Fund from paying fees to its manager pending redemption of SCERS’ interest in the Fund.  By the time of the Court’s hearing on the preliminary injunction request, Epsilon had provided SCERS with unaudited financial statements for 2008 and 2009 and other financial information for the Fund.  In May 2010, the Court ruled that, since completion of the audit was solely in the hands of the Fund’s auditor, it was impossible to order the Fund to complete the audit.  In addition, the Court noted that Epsilon had already provided SCERS with all available information in its possession.  Consequently, the Court denied SCERS’ request for a preliminary injunction.  The parties eventually agreed to dismiss the action without prejudice.  We summarize the claims in the suit and the Court’s decision.

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