Liability and Incentive Fee Considerations Under ERISA for European Hedge Fund Managers (Part One of Three)

As European hedge fund managers recognize the increasing concentration of investment capital in U.S. pension funds subject to the Employee Retirement Income Security Act of 1974 (ERISA), their appetite for unlocking access to such capital has grown.  This has led a number of European managers to actively seek investment from ERISA plans, notwithstanding the heightened compliance obligations which have traditionally deterred them from accepting ERISA plan assets into their funds.  This article, the first in a three-part series, discusses recent trends in ERISA fundraising by hedge fund managers based in the U.K. and other European jurisdictions and looks at the pertinent issues affecting those managers.  Specifically, it examines key difficulties relating to liability standards and incentive fees and analyzes various approaches to overcoming those issues.  The second article will explore issues relating to prohibited transactions, reporting requirements and side letters under the ERISA regime, and the final article will address concerns relating to indicia of ownership requirements, bond documentation and other overarching issues.  For more on ERISA, see “Structuring Hedge Funds to Avoid ERISA While Accommodating Benefit Plan Investors (Part Two of Two),” Hedge Fund Law Report, Vol. 8, No. 6 (Feb. 12, 2015); and “What Should Hedge Fund Managers Expect When ERISA Plans Conduct Due Diligence On and Negotiate For Investments in Their Funds?,” Hedge Fund Law Report, Vol. 6, No. 25 (Jun. 20, 2013).

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