Is the In-House Marketing Department of a Hedge Fund Manager Required to Register as a Broker?
Hedge Fund Law Report
The hedge fund adviser registration provisions of Dodd-Frank have, deservedly, received considerable attention during the last year from hedge fund managers and other industry participants. However, there is another big registration question in the hedge fund industry – a question that predates Dodd-Frank by years; that has been discussed in hushed tones, for fear that regulators will overhear; and that may have consequences at least as powerful as the new adviser registration rule. The question is the title of this article: is the in-house marketing department of a hedge fund manager required to register as a broker? A closely related question is whether the members of such a department must register as associated persons of a broker. These questions do not lend themselves to conclusive answers, but this article seeks to provide a framework for analyzing the relevant issues. In particular, this article discusses: the general broker-dealer registration regime; SEC staff and court interpretations of the term “broker”; registration relief available to issuers and “finders”; the non-exclusive registration safe harbor for associated persons of an issuer; consequences of not registering as a broker if a person or entity is required to do so; specific challenges for hedge fund managers in complying with the safe harbor; how to structure in-house marketer employment agreements to fit within the safe harbor; and structuring alternatives for managers who elect to live with the broker registration regime. According to our research, while the SEC has brought enforcement actions against various types of entities for operating as unregistered brokers, the SEC has not, to date, brought an action against a hedge fund manager solely for operating its in-house marketing department as an unregistered broker. However, the SEC’s enforcement division is newly invigorated, with an asset management unit focused specifically on regulating hedge funds via enforcement. Moreover, the consequences for failing to register as a broker when required to do so can be dramatic. Finally, the “hushed tones” referenced above have not been entirely successful – we at the Hedge Fund Law Report have anecdotal and written evidence that the issue of broker registration of in-house hedge fund marketing departments is on the SEC’s radar screen. That is, this article is not alerting the SEC to an issue of which the agency is unaware. Rather, it is letting hedge fund managers know that they should be prepared – and offering guidance on how to prepare.