What Legal Ammunition Is Available to Investors to Challenge Aggressive Liquidity Management by Hedge Fund Managers?

In August 2008 – at the height of the credit crisis – funds managed by Eden Rock Capital Management sought to redeem from funds managed by Stillwater Capital.  Stillwater refused to honor such redemption requests and allegedly engaged in a series of transactions intended to hinder such redemptions.  In March 2011, the Eden Rock funds sued Stillwater, the Stillwater funds and Stillwater’s successor, alleging fraudulent conveyance, fraud, breach of contract and related claims.  See “Investment Manager Eden Rock Financial Sues Hedge Fund Stillwater Capital and Gerova Financial Group in New York State Supreme Court,” Hedge Fund Law Report, Vol. 4, No. 14 (Apr. 29, 2011).  The New York State Supreme Court recently ruled on Eden Rock’s claims.  This article summarizes the factual background – focusing on the redemption dispute – and the Court’s decision.  The experience of the crisis – in particular, the combustible combination of investors seeking liquidity and managers unwilling to part with it – has already influenced hedge fund structuring, due diligence, side letters and many other aspects of the hedge fund business.  But even in non-crisis times, micro factors will result in occasional, fund-specific illiquidity that is hard to predict at the time of an investment.  Accordingly, it is important for hedge fund managers and investors to understand the viability of various legal claims available to contest liquidity management mechanisms.  While the liquidity management mechanisms at issue in this matter are complicated and unlikely to be reproduced verbatim, the matter nonetheless illuminates how a court will evaluate claims in the nature of fraudulent conveyance, fraud and breach of contract as applied to typical hedge fund structures and redemption-related disputes.

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