Hedge fund managers that take personal loans from their hedge funds without the authority to do so, or without full disclosure of such loan arrangements, can trigger enforcement activity from regulators. For a discussion of such an action, 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). Such loans can also trigger rule violations, depending on the circumstances. Since 2009, commodity pool operators (CPOs) that are registered or required to register as such with the U.S. Commodity Futures Trading Commission and become members of the National Futures Association (NFA) have been subject to NFA Rule 2-45 (Rule), which generally prohibits CPOs from permitting the commodity pools (pools) they operate to make loans or advances to the CPO or any affiliated person or entity, which can include other pools operated by the CPO. In response to concerns raised by prospective CPO registrants who, in the ordinary course of their business, regularly effect transactions (such as repurchase agreements and securities lending transactions) with and among pools they operate “that have characteristics similar to a loan” and that may be deemed to be impermissible loans or advances from the pool to the CPO, the NFA recently amended Rule 2-45 to except certain delineated transactions from the Rule’s coverage. This article summarizes the changes to the Rule adopted by the NFA, including a discussion of the specific types of transactions that are no longer prohibited by the Rule. For a discussion of considerations for loan transactions between a hedge fund manager and its funds, see “Key Legal Considerations in Connection with Loans from Hedge Funds to Hedge Fund Managers
,” Hedge Fund Law Report, Vol. 3, No. 28 (Jul. 15, 2010).