A decision by the Delaware Court of Chancery points to certain issues that private fund general partners and managers must take into account when committing to agreements with investors. The decision exposes false assumptions as to the meaning and enforceability of side letters. Issues brought to light during the proceedings have ramifications for the hedge fund sector more generally, asserted a panel at the Ninth Annual Advanced Topics in Hedge Fund Practices: Manager and Investor Perspectives conference recently hosted by Morgan, Lewis & Bockius. The panel featured Morgan Lewis partners and co-heads of the firm’s global hedge funds practice Richard Goldman and Jedd Wider, as well as partner-elect Christopher Dlutowski. This article highlights the panelists’ key insights relevant to hedge fund and other private fund managers with respect to granting investors preferential rights in light of the Delaware decision, responding to requests for most favored nation status and providing investors with notice of material events. For another ruling affecting side letters, see “Cayman Islands Decision Highlights Three Questions That May Affect the Enforceability of Fund Side Letters
” (May 28, 2015). For additional insight from Morgan Lewis partners, see “Becoming a Plan Assets Fund May Limit Hedge and Other Private Funds’ Abilities to Charge Fees
” (Apr. 21, 2016); and “Under What Conditions Can a Hedge Fund Manager Present Hypothetical Backtested Performance Results?
” (Feb. 1, 2013).