Identifying and Addressing the Primary Conflicts of Interest in the Hedge Fund Management Business

Regulators are increasingly keen on scrutinizing how fund managers address conflicts of interest.  Norm Champ, then-Deputy Director of the SEC’s Office of Compliance Inspections and Examinations, spoke about conflicts at a May 2012 seminar held at the New York City Bar Association.  See “Davis Polk ‘Hedge Funds in the Current Environment’ Event Focuses on Establishing Registered Alternative Funds, Hedge Fund Manager M&A and SEC Examination Priorities,” Hedge Fund Law Report, Vol. 5, No. 24 (Jun. 14, 2012).  The SEC has indicated that it intends to scrutinize fund managers’ handling of conflicts of interest during “presence examinations” of newly registered managers to be conducted in the next two years.  See “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, Vol. 5, No. 48 (Dec. 20, 2012).  In addition, the FSA has expressed its own concerns with asset managers’ handling of conflicts of interest by penning a “Dear CEO” letter to asset managers identifying areas where it has particular concerns.  See “FSA Report Warns Investment Managers to Revise Their Compliance Policies and Procedures to Address Key Conflicts of Interest,” Hedge Fund Law Report, Vol. 5, No. 45 (Nov. 29, 2012).  Moreover, regulators have initiated enforcement actions to address conflicts of interest that were not appropriately managed, handled and documented.  The most notable of these actions was levied against Harbinger Capital Partners and its principal, Philip Falcone, in the summer of 2012.  See “SEC Charges Philip A. Falcone, Harbinger Capital Partners and Related Entities and Individuals with Misappropriation of Client Assets, Granting of Preferential Redemptions and Market Manipulation,” Hedge Fund Law Report, Vol. 5, No. 26 (Jun. 28, 2012).  Like regulators, hedge fund investors are concerned with conflicts of interest at managers.  See “Use of SSAE 16 (SAS 70) Internal Control Reports by Hedge Fund Managers to Credibly Convey the Quality of Internal Controls, Raise Capital and Prepare for Audits,” Hedge Fund Law Report, Vol. 5, No. 11 (Mar. 16, 2012).  Left unchecked, conflicts can ripen into legal violations and lost investments.  Accordingly, hedge fund managers must be vigilant in identifying and addressing conflicts.  While the details of conflicts may differ from firm to firm, certain general conflicts pervade the industry.  In a guest article, John Ackerley, a Director with Carne Global Financial Services in the Cayman Islands, provides a checklist of those pervasive conflicts, which are also those that matter most to regulators and investors.  In addition, Ackerley discusses specific measures that hedge fund managers can take to mitigate such conflicts.  Managers can expect questions from regulators and investors on each of the conflicts discussed herein.  Therefore, this article can be useful as a reference point in a mock examination, to prepare for marketing meetings and for other purposes.

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