How Can Hedge Fund Managers Structure Their In-House Marketing Activities to Avoid a Broker Registration Requirement?  (Part One of Three)

In-house marketers play a central role in raising and retaining assets for hedge fund managers.  While the role means different things at different firms and even within a firm, the job of an in-house marketer often involves some combination of: directly sourcing investments; indirectly sourcing investments via investment consultants, third-party marketers and others; persuading investors to remain invested, especially during turbulent periods; persuading investors to make follow-on investments; crisis management of various kinds; management of side letter obligations; preparation of investor-facing materials (PPMs, pitchbooks, etc.); coordination of public communications, to the extent permitted by the JOBS Act and otherwise; and more.  Hedge fund managers have asked (usually in hushed tones) whether the activities of in-house marketers require the manager or its marketing department to register as a broker, or require members of the department to register as associated persons of a broker.  For years, there was essentially no regulatory activity on this topic – no enforcement actions or speeches by SEC officials – and many in the industry construed the absence of such activity as tacit approval of typical structures.  See “Is the In-House Marketing Department of a Hedge Fund Manager Required to Register as a Broker?,” Hedge Fund Law Report, Vol. 4, No. 10 (Mar. 18, 2011).  However, an April 5, 2013 speech by David W. Blass, Chief Counsel of the SEC’s Division of Trading and Markets, indicated that regulators are aware of this issue and provided some insight into how the SEC thinks about it.  The Blass speech refocused attention on this issue and highlighted some important questions to ask, but the speech did not provide conclusive answers to the hard practical questions being asked by hedge fund managers.  See “Do In-House Marketing Activities and Investment Banking Services Performed by Private Fund Managers Require Broker Registration?,” Hedge Fund Law Report, Vol. 6, No. 16 (Apr. 18, 2013) (analyzing the Blass speech).  In an effort to move the discussion further along and address important practice points, the Hedge Fund Law Report is publishing a three-part series outlining steps that managers can take to mitigate the risk of triggering a broker registration obligation based on in-house marketing activities.  This article, the first in the series, explores the activities that could trigger a broker registration requirement, as well as other factors that bear on the registration analysis, including the time devoted to marketing by an employee, the employee’s job title and the employee’s other responsibilities.  The second installment will evaluate whether specific types of compensation constitute “transaction-based compensation”; discuss the applicability of the Rule 3a4-1 issuer safe harbor; and advise on how managers can operate in-house marketing activities within the “spirit” of the safe harbor to minimize the risk of triggering a broker registration requirement.  The third installment will examine alternative solutions for managers looking to structure in-house marketing activities in a manner that accomplishes the fundamental business goals (most notably, capital raising) without triggering a broker registration requirement.

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