What Do Hedge Fund Managers Need to Know to Prepare For, Handle and Survive SEC Examinations?  (Part Three of Three)

By July 21, 2011, many hedge fund managers that previously were not required to register with the SEC as investment advisers will be required to register.  Specifically, two categories of hedge fund managers will be required to register with the SEC as investment advisers: (1) hedge fund managers with assets under management in the U.S. of at least $150 million that manage solely private funds; and (2) hedge fund managers with assets under management in the U.S. between $100 million and $150 million that manage at least one private fund and at least one other type of investment vehicle (for example, a managed account).  Registration will subject previously unregistered hedge fund managers to a range of new regulatory obligations and burdens.  One of the most notable new burdens is that registered hedge fund managers will be subject to SEC examinations.  (Generally, unregistered hedge fund managers are not subject to examinations, though they may be subject to subpoenas or information requests from the SEC where the agency suspects fraud or violation of the federal securities laws.)  To assist newly registered (or soon to be registered) hedge fund managers and other registered investment advisers in preparing for, handling and surviving SEC examinations, the Regulatory Compliance Association’s 2011 Spring Asset Management Thought Leadership Symposium will feature an extended 1.5 hour session entitled “Regulatory Examinations – Briefing on Latest Inquiries from SEC and NFA Staff.”  That RCA Symposium will take place on April 7, 2011 at the Marriott Marquis in Times Square in New York.  The Hedge Fund Law Report recently conducted detailed interviews with three of the thought leaders scheduled to participate in the Regulatory Examinations session at the RCA’s April Symposium: Steven A. Yadegari, Senior Vice President & General Counsel at Cramer Rosenthal McGlynn, LLC; Stephen A. McShea, General Counsel & Chief Compliance Officer at Larch Lane Advisors LLC; and Matthew Eisenberg, Partner at Finn Dixon & Herling LLP.  Those interviews provide a preview of the topics to be discussed at the RCA Symposium, and offer detailed insights, practical strategies and actionable recommendations for newly registered hedge fund managers facing the prospect of regulatory examinations – in many cases, for the first time.  We are publishing these interviews as a three-part series.  The full text of our interview with Steven Yadegari was included in our issue of February 3, 2011.  See “What Do Hedge Fund Managers Need to Know to Prepare For, Handle and Survive SEC Examinations?  (Part One of Three),” Hedge Fund Law Report, Vol. 4, No. 4 (Feb. 3, 2011).  And full text of our interview with Stephen McShea was included in our issue of February 10, 2011.  See “What Do Hedge Fund Managers Need to Know to Prepare For, Handle and Survive SEC Examinations?  (Part Two of Three),” Hedge Fund Law Report, Vol. 4, No. 5 (Feb. 10, 2011).  The full text of our interview with Matthew Eisenberg is included in this issue of the Hedge Fund Law Report, below.  The Eisenberg interview covered a wide range of relevant topics, including but not limited to: four principal areas in which the SEC has been focusing its enforcement activity of late; the relationship among SEC sweeps, examinations and enforcement actions; primary lessons for hedge fund managers from the SEC’s recent sweeps and enforcement actions; the impact of new leadership in key examination roles at the SEC (for example, Carlo di Florio as Director of OCIE) on examinations of hedge fund managers; the SEC’s goals in conducting examinations; suggested goals of hedge fund managers when undergoing examinations; lessons for both the SEC and hedge fund managers of the report by the SEC Inspector General on Westridge Capital Management and related matters; the likelihood that a self-regulatory organization (SRO) for investment advisers will be given authority to examine registered hedge fund managers; whether SRO examination authority over hedge fund managers would be better or worse than the current state of affairs; principal areas of focus of the CFTC and National Futures Association (NFA) in their enforcement efforts; authority of the CFTC and NFA to examine hedge fund managers; and specific steps that managers can take to create and demonstrate a commitment to compliance and to strike the right “tone at the top.”

To read the full article

Continue reading your article with a HFLR subscription.