In February of this year, the SEC issued a no-action letter to Fifth Street Finance Corp. (Fifth Street), a registered investment company (RIC) that sought to participate jointly in a restructuring transaction with a private fund managed by the same management company.  While the letter is explicitly limited to its unique facts, it nonetheless provides insight into the factors the SEC may consider when determining whether a RIC is getting a worse deal than a private fund where both funds are under common control and participate jointly in the same transaction.  The letter is relevant to the hedge fund community because a growing number of hedge fund managers are launching RICs, UCITS and other registered products.  See “Hedge Fund Managers Launching Mutual Funds in an Effort to Stay a Step Ahead of Regulatory Convergence,” Hedge Fund Law Report, Vol. 2, No. 15 (Apr. 16, 2009); “New Study Offers Surprising Findings on the Incentives Created by Concurrent Management of Hedge and Mutual Funds,” Hedge Fund Law Report, Vol. 2, No. 23 (Jun. 10, 2009).  To the extent the investment strategies of hedge funds and RICs overlap, managers may have occasion to allocate the same deals to both categories of funds.  In such circumstances, at least in the U.S., beyond the fiduciary duty and anti-fraud considerations always lurking in the background of allocation decisions, managers also must consider Rule 17d-1 under the Investment Company Act of 1940 (Investment Company Act).  See “Can Mutual Funds Rely on the Recent T. Rowe Price No-Action Letter to Invest in Hedge Funds?,” The Hedge Fund Law Review, Vol. 2, No. 49 (Dec. 10, 2009).  That Rule, its operation in concurrent management scenarios and its implications for hedge fund managers that also manage RICs are explored in this article.