In the absence of an exemption, a manager of a fund that trades in “commodity interests” (including swaps) may be required to register with the U.S. Commodity Futures Trading Commission (CFTC) as a commodity pool operator (CPO) and become subject to the Commodity Exchange Act and the CFTC’s “Part 4” regulations (which specify a CPO’s disclosure, financial reporting and recordkeeping obligations). See “Do You Need to Be a Registered Commodity Pool Operator Now and What Does It Mean If You Do? (Part Two of Two)
,” Hedge Fund Law Report, Vol. 5, No. 19 (May 10, 2012). For managers of alternative mutual funds or other registered investment companies (RICs), the CFTC regime is yet another set of rules to navigate; such managers are already subject to the Securities Act of 1933 (Securities Act), the Securities Exchange Act of 1934, the Investment Company Act of 1940 (Company Act), the Investment Advisers Act of 1940, and rules under those statutes. See “How Can Hedge Fund Managers Organize and Operate Alternative Mutual Funds to Access Retail Capital (Part Two of Two)
,” Hedge Fund Law Report, Vol. 6, No. 6 (Feb. 7, 2013). To mitigate administrative and coordination challenges associated with duplicative or conflicting CFTC and SEC obligations impacting registered CPOs, on August 13, 2013, the CFTC issued an Adopting Release (Adopting Release) in which it amended existing CFTC rules to create a “substituted compliance” regime (harmonization rules). Through these harmonization rules, compliance with designated SEC rules will be deemed to satisfy obligations imposed under corresponding CFTC rules. A recent K&L Gates LLP seminar reviewed the Adopting Release, the harmonization rules and their impact on RICs. As an increasing number of hedge fund managers have launched or are contemplating launching registered funds, this relief is welcome news in the hedge fund industry. This article summarizes the key insights from that seminar. For a discussion of the substituted compliance regime and its impact on managers of hedge funds and other entities not registered pursuant to the Company Act, see “What Do the CFTC Harmonization Rules Mean for Non-Mutual Fund Commodity Pools, Including Hedge Funds?
,” Hedge Fund Law Report, Vol. 6, No. 40 (Oct. 17, 2013).