Applicability of New Disclosure Obligations Under ERISA to Hedge Fund Managers

More and more ERISA-covered benefit plans (especially defined benefit pension plans) are becoming interested in alternative investments, including hedge funds, and assets under management in the hedge fund industry are growing.  The U.S. Department of Labor (DOL) recently reported that the total amount of assets held by private pension plans increased to about $5.5 trillion by the end of the plans’ 2009 plan years (including about $2.2 trillion held by defined benefit pension plans).  Private Pension Plan Bulletin, DOL, Employee Benefits Security Administration (2011).  (The DOL’s numbers do not include the amount of assets in public pension plans and individual retirement accounts.)  And a recent survey conducted by Credit Suisse found that assets under management in hedge funds globally are on track to reach $2.13 trillion by the end of 2012.  Given these numbers and trends, hedge fund managers are increasingly likely to consider marketing their funds to benefit plans as investment opportunities.  However, if ERISA-covered benefit plans (and certain other tax-exempt retirement vehicles) own 25% or more of any class of equity interest in a hedge fund, an undivided portion of all of the underlying assets of the hedge fund becomes “plan assets” subject to ERISA, and the manager of the hedge fund becomes a fiduciary under ERISA to the ERISA-covered benefit plan investors.  See “How Can Hedge Fund Managers Accept ERISA Money Above the 25 Percent Threshold While Avoiding ERISA’s More Onerous Prohibited Transaction Provisions? (Part One of Three),” Hedge Fund Law Report, Vol. 3, No. 19 (May 14, 2010).  This raises a number of issues for such a “covered” hedge fund manager.  One of those issues that will arise this year for the first time is a final rule released by the DOL on February 2, 2012 under ERISA §408(b)(2) regarding fee disclosures by service providers to ERISA plans.  In a guest article, Fred Reish, Bruce Ashton and Gary Ammon, all Partners in the Employee Benefits & Executive Compensation Group at Drinker Biddle & Reath LLP, analyze, with respect to the final rule under ERISA §408(b)(2): covered plans; covered service providers; covered services; disclosure requirements; the effective date for compliance; the definition of compensation for purposes of the rule; how to handle changes in information or status; disclosure errors; and related topics.  This article is relevant to hedge fund managers that have ERISA investors or are considering marketing to such investors.

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