SEC No-Action Letter Suggests That There May Be Circumstances in which Recipients of Transaction-Based Compensation Do Not Have to Register as Brokers

In combination with other facts and circumstances, the receipt of transaction-based compensation may trigger a requirement on the part of the recipient to register with the SEC as a broker.  For hedge fund managers, this requirement has been considered problematic because in-house marketing professionals may be construed as brokering securities (i.e., fund interests) and receiving compensation that is based in whole or in part on transaction volumes.  For years, this was a quiet concern among managers, but the topic acquired urgency last April when David W. Blass, Chief Counsel of the SEC’s Division of Trading and Markets, addressed it in a speech.  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).  Since then, managers have been working to determine whether they, their in-house marketing departments or certain members of those departments need to register with the SEC as brokers, or how they should change their compensation or other practices to avoid a broker registration requirement.  See “How Can Hedge Fund Managers Structure Their In-House Marketing Activities to Avoid a Broker Registration Requirement? (Part Three of Three),” Hedge Fund Law Report, Vol. 6, No. 37 (Sep. 26, 2013).  A recent SEC no-action letter provides further insight into the SEC’s evolving thinking on this topic.  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).

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