This is the third article in our series – occasioned, in large part, by David Blass’ April 5, 2013 speech
before the American Bar Association, Trading and Markets Subcommittee – on broker registration considerations for hedge fund managers. The first article
in the series described the activities that could trigger a broker registration requirement, and the second installment
distilled best industry practices for determining when compensation paid to in-house hedge fund marketers constitutes transaction-based compensation. This article, the culmination of the analysis in the first two parts, is intended for managers that have taken a hard and candid look at their current marketing practices and determined that those practices may require broker registration. Such managers must answer at least five critical questions: What are the relevant state broker registration requirements and the consequences for failing to comply with them? What is involved in broker registration by a manager or an affiliate? How can managers structure third-party broker arrangements? How, if at all, can managers modify current marketing practices to sidestep a broker registration requirement? And, finally, can managers obtain comfort on this topic from the SEC’s no-action process? This article addresses each of these questions.