Former SEC Asset Management Unit Co-Chief Robert Kaplan and Former NYS Insurance Superintendent Eric Dinallo, Both Current Debevoise Partners, Discuss the Purpose, Process and Consequences of Presence Examinations of Hedge Fund Managers
Hedge Fund Law Report
On October 9, 2012, the SEC’s Office of Compliance Inspections and Examinations (OCIE) sent a letter to senior management of newly registered private fund advisers noting that such managers imminently may be subjected to so-called “presence examinations.” See “OCIE Warns Newly Registered Hedge Fund Advisers to Watch Out for ‘Presence Examinations,’” Hedge Fund Law Report, Vol. 5, No. 39 (Oct. 11, 2012). The letter provided some information on how presence examinations would work and what examiners would be looking for, but the letter also left many important questions unanswered. To fill in the gaps left by the letter and round out the industry’s understanding of what presence examinations will mean for registered hedge fund managers, Hedge Fund Law Report recently conducted an interview with Robert Kaplan and Eric Dinallo. Kaplan is the former Co-Chief of the SEC’s Asset Management Unit within the Division of Enforcement and Dinallo is the former New York State Superintendent of Insurance; both are currently partners at Debevoise & Plimpton LLP. Our interview covered, among other things: what presence examinations are; how OCIE evaluates the risk of hedge fund managers when allocating examination resources; the impact of a whistleblower on a manager’s risk profile; whether and how managers should approach mock examinations; whether self-reporting of violations found during mock examinations is advisable; how managers should approach senior management interviews with OCIE staff; how managers can ensure consistency across various fund documents and examination interview responses; key conflicts of interest OCIE will focus on during presence examinations; other key focal areas for presence examinations; whether managers must disclose the initiation of routine OCIE examinations to investors; whether managers must disclose unremediated material deficiencies to prospective fund investors; how OCIE approaches referrals of matters to the Division of Enforcement; and steps a manager can take to speed up an OCIE examination.