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

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.

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