Hedge fund management is a human capital business, and employees are (or should be) the key asset of a manager. See “Key Legal Considerations in Connection with the Movement of Talent from Proprietary Trading Desks to Start-Up or Existing Hedge Fund Managers: The Hedge Fund Manager Perspective (Part Three of Three)
,” Hedge Fund Law Report, Vol. 4, No. 4 (Feb. 3, 2011). However, employees can also be a manager’s most dangerous liability. One rogue employee can destroy or seriously damage even the best hedge fund franchise by, among other things, inviting a presumption that the employee is not rogue but representative of a culture of permissiveness. See “Rajaratnam Prosecutor and Dechert Partner Jonathan Streeter Discusses How the Government Builds and Prosecutes an Insider Trading Case against a Hedge Fund Manager
,” Hedge Fund Law Report, Vol. 5, No. 45 (Nov. 29, 2012). Recognizing the risks of picking bad apples, hedge fund managers are increasingly using employee background checks as a downside mitigation strategy. But the concept of a background check spans a wide range of activities – everything from a superficial online search to a deep, manual process. Whether to conduct a background check in the first instance, and what kind of background check to conduct, depends on dynamics specific to the industry, firm and prospective employee. To assist hedge fund managers in understanding the role of background checks in their hiring and “people” processes, the Hedge Fund Law Report is publishing a three-part series on the role of background checks in the hedge fund industry, with the three parts focusing on, respectively, three questions: Why, how and who. More specifically, this article – the first in the series – outlines the case for conducting background checks, cataloging the wide range of regulatory and other risks presented by employees (including discussions of insider trading, Rule 506(d), pay to play, track record portability, restrictive covenants and other topics). The second installment will describe the anatomy of an employee background check, highlighting mechanics, common mistakes and risks. And the third part will weigh the benefits and burdens of outsourcing background checks versus conducting them in-house.