May 11, 2023
SEC Remains Focused on Off-Channel Communications
Maintaining appropriate business records is a fundamental compliance duty and a core component of the SEC’s examination and enforcement regime, stressed Seward & Kissel partner Russell Johnston in a recent firm presentation. Failure to preserve records undermines the agency’s ability to protect investors and ensure market integrity. In recent years, the SEC has zeroed in on how firms monitor and maintain records of so-called “off-channel” electronic communications, imposing $2 billion in penalties on firms that failed to do so. Johnston and Seward & Kissel partners Debra Franzese, Philip Moustakis and Michael Watling discussed the SEC’s recent enforcement actions involving off-channel communications, its pending sweep of investment advisers and what advisers can do to ensure they have appropriately addressed use of off-channel communications and prepared for the inevitable examination on the issue. This article distills their insights. See “Former SEC Enforcement Official Looks Back at 2022 and Forward to 2023” (Jan. 5, 2023); and “Present and Former SEC Officials Discuss Enforcement (Part Two of Two)” (Jun. 9, 2022).
Mar 16, 2023
A Roadmap to Valuation of Interests in Hedge Funds
It may be necessary to value an interest in a hedge fund for tax purposes or in connection with a business transaction or litigation. The approach used will depend on the context of the valuation and other considerations. A recent Marcum LLP program examined the unique considerations and common points of contention in valuing hedge fund interests. Marcum partner Elizabeth Ciccone moderated the discussion, which also featured partners Vladimir Korobov and Thomas Keane. This article distills their insights. See “Succession Planning Series: Selling a Hedge Fund Founder’s Interest to an Outside Investor (Part Two of Two)” (Jan. 16, 2014); and “Valuation and Confidentiality Concerns in Secondary Market Trading of Hedge Fund Interests” (Dec. 9, 2008).
Apr 21, 2022
Navigating Trade and Communications Surveillance Challenges
The amount of trade-related data available to advisers continues to grow, as does the number of available communications channels. The growing diversity and volume of trade and communications data is making surveillance even more challenging, and at the same time, the SEC has increasingly higher expectations for how advisers should be monitoring trading and communications. A recent ACA Group (ACA) program explored the growing challenges around trade and communications surveillance; regulatory expectations; and the availability of technological solutions, including holistic solutions that integrate trade and communications data to fine-tune surveillance. The program featured Suzan Rose, senior advisor to the Alternative Investment Management Association, and Marc Salter, director of business development at ACA. This article explores their insights. See “Preparing For and Facilitating the Digitization, Automation and Optimization of Compliance Programs” (Jan. 20, 2022); and “How to Avoid Five Common Duty to Supervise Traps: Conduct Proper Trade and Electronic Communications Surveillance (Part Two of Three)” (Sep. 13, 2018).
Apr 21, 2022
SEC’s Proposed Amendments to Form PF and Advisers Act Introduce Uncertainty, Increase Burden on Compliance Staff (Part One of Two)
After foreboding words at the end of 2021 about changes he would like to see to the private funds industry, SEC Chair Gary Gensler has followed up with a veritable avalanche of proposed amendments and regulations. Most prominently, the SEC proposed changes to Form PF along with new and amended rules for private fund advisers under the Investment Advisers Act of 1940 (Advisers Act). As drafted, the proposed amendments impose new – and, some have argued, unnecessarily onerous – reporting requirements, burdens and restrictions on fund managers. Morgan Lewis attorneys detailed the features and flaws of the SEC’s proposed amendments in a recent webinar featuring partners Christine M. Lombardo, Courtney C. Nowell, Jedd H. Wider and Joseph D. Zargari. This first article in a two-part series details key features of the proposed amendments to Form PF that are relevant to hedge fund managers, as well as those in the amendments to the Advisers Act relating to audits and annual compliance reviews. The second article will outline proposed changes to the Advisers Act to introduce new quarterly reporting requirements, as well as prohibit certain activities and types of preferential treatment of investors. See “Practical Impact of the Proposed Amendments to Form PF on Fund Managers and Reasons for Industry Backlash (Part Two of Two)” (Mar. 10, 2022).
Apr 21, 2022
How Recent and Proposed Interest Limitations Under Section 163 of the Internal Revenue Code Apply to Private Funds (Part Two of Two)
Since its introduction via the 2017 tax reforms, there have been a number of revisions to limitations on business interest deductions under Section 163(j) of the Internal Revenue Code. Those are particularly relevant in the context of “trading partnerships” (e.g., hedge funds, private equity funds, etc.), as the rules are murkier now as to how and when deductions are applied to business interests and investment interests. Those issues and others were addressed in a recent Troutman Pepper webinar on Section 163(j) featuring attorneys Steven D. Bortnick and Morgan Klinzing. This second article in a two-part series examines how Section 163 applies to trading partnerships, as well as the application of recent legislative proposals on controlled foreign corporations. The first article covered the tax provision’s posture on U.S. earnings stripping, business interest deduction limitations and the treatment of different types of partnership structures. For coverage of other relevant tax issues, see “Key Tax Issues Fund Managers Must Consider” (Jun. 10, 2021); and “Hot Tax Topics for Private Fund Investors and Managers” (Jan. 21, 2021).
Sep 09, 2021
Complications of Using Standard Form Provisions and Managing Administrative Burdens of Side Letters (Part One of Two)
The private funds industry is well past the point at which side letters have become ubiquitous. Fortunately, fund managers are now far more experienced and practiced at adopting techniques to mitigate some of the issues that can arise from juggling a surplus of potentially conflicting side letters – both at the front end of negotiating side letters and at the back end of managing the obligations contained therein over a fund’s life. The above issues were addressed by a panel at a recent Practising Law Institute (PLI) program, which was moderated by Skadden partner Anna Rips and featured Fola Adamolekun, executive director and assistant GC at J.P. Morgan Asset Management; Alison Horton, managing director and legal counsel at Davidson Kempner Capital Management; and Nicole Restivo, chief operating officer, GC and CCO at Key Square Capital Management. This first article in a two-part series discusses some complex issues from using form side letters for funds of funds (FOFs); difficulties for FOFs in simultaneous negotiations; and administrative challenges relating to side letters. The second article will highlight challenges of managing most favored nation provisions in side letters and current hot topics in negotiations, with particular emphasis on terms relating to environmental, social and governance investing. For coverage of a previous PLI program, see “SEC Chief Counsel Advises on Exemptive Applications and Requests for No‑Action Relief” (May 16, 2019).
Sep 09, 2021
Three Years In, GDPR Legal Landscape Remains in Flux
General Data Protection Regulation (GDPR) enforcement is increasing, and the law is changing, Latham & Watkins partner Gail Crawford said during a recent panel. She, along with her partners Myria Saarinen and Tim Wybitul, and Porsche chief privacy officer Christian Volkel, discussed the enforcement landscape; recent cases and fine proceedings; and how to prepare to defend GDPR fines and civil actions. This article distills their insights and analyzes – with input from Ropes & Gray partner Rohan Massey – a recent case in the European Court of Justice that has potentially altered the GDPR’s “one-stop-shop” mechanism. See “How Do You Put a System of Controls in Place When Your Target Keeps Moving?” (Jul. 22, 2021).
Aug 26, 2021
Measures Fund Managers Can Adopt to Factor Diversity Into Hiring and Investing Processes (Part Two of Two)
Although it has been widely acknowledged that the private funds industry needs to bolster its diversity and inclusivity, efforts to date have still lagged. There is reason to believe that is attributable to some legitimate factors, such as a limited pipeline of qualified candidates. There are plenty of other ways, however, that firms can still improve their diversity practices – both internally and in the industry as a whole – despite those limitations. Those and other matters were addressed in a New York Alternative Investment Roundtable webinar featuring Tracy McHale Stuart, CEO of Corbin Capital Partners; Nasrine Ghozali, chief risk officer at Oasis Management; and Imogen Rose‑Smith, co‑founder of Combinate Capital. This second article in a two-part series offers guidance for adjusting hiring practices to include diversity; thoughts on how to factor diversity into all stages of the investment process; and regional efforts in the U.S. and Asia. The first article summarized the immense value of improving diversity at firms and in the industry; suggested how firms could self-audit their existing diversity efforts; and provided guidance for how firms can approach diversity training. See “HFLR Webinar Explores Legal and Compliance Employment Trends, Including Compensation, Staffing, Diversity and the Pandemic’s Impact” (Oct. 15, 2020).
Aug 19, 2021
Morgan Lewis Attorneys Discuss the Global ESG Landscape
At the recent Morgan Lewis Advanced Topics in Hedge Fund Practices Conference, a panel of globally based Morgan Lewis attorneys, including partners Tomoko Fuminaga, Joel Seow, Alishia K. Sullivan and William Yonge, explored various aspects of the international hedge funds landscape. This article reviews the portions of the program devoted to sustainability and environmental, social and governance considerations in Europe, Asia and the Middle East. For coverage of the other elements of the global hedge funds landscape discussed in this panel, see our two-part series: “Accessing Non‑U.S. Institutional Capital” (Jul. 8, 2021); and “Europe, Asia and the Middle East” (Jul. 15, 2021).
Aug 19, 2021
Firms Must Self‑Evaluate Their Existing Diversity and Inclusivity to Incorporate Meaningful Improvements (Part One of Two)
Diversity, equity and inclusion (DEI) is a key agenda item for alternative asset managers in 2021 and the foreseeable future. Recently, there has been a keen focus on what DEI means and why it is important but perhaps less discussion about the practical steps and actions that managers can take to improve diversity within their organizations and industry as a whole. To provide alternative asset managers with guidance on how to create a more inclusive work environment, the New York Alternative Investment Roundtable hosted a webinar, which featured Nasrine Ghozali, chief risk officer at Oasis Management; Imogen Rose‑Smith, co‑founder of Combinate Capital; and Tracy McHale Stuart, CEO of Corbin Capital Partners. This first article in a two-part series highlights the importance of DEI at both a firm and industry level; the value of a firm’s self-evaluating its DEI status and practices; and how firms can approach diversity training. The second article will provide tips for incorporating diversity into hiring practices; insights on addressing diversity in a firm’s investments; and regional efforts in the U.S. and Asia. For additional coverage of actionable steps toward diversity, see “Practical Guidance for Advisers Seeking to Foster Diversity and Inclusion” (Jul. 14, 2020).
Jul 22, 2021
Recent Regulatory and Market Developments Affecting Digital Asset Funds and Digital Securities
The digital assets landscape continues to rapidly evolve. A recent program at the ACA Spring Conference examined the evolution of investment vehicles for digital assets; digital asset fund structures; custody, tax and other regulatory concerns associated with digital asset funds; regulatory developments affecting broker-dealers involved in digital asset transactions; digital securities; private permission blockchains; and stablecoins. The program featured Stephanie Breslow, partner at Schulte Roth & Zabel; Rashad Kurbanov, CEO and co‑founder of iownit capital and markets, Inc.; Pat LaVecchia, CEO and co‑chairman of Oasis Pro Markets, LLC; and Anthony Perez, director at ACA Group. This article distills their insights. See “HFLR Cryptocurrency Webinar Examines Regulatory Developments, ICOs, Cryptocurrency Sweep, Custody and Other Compliance Issues” (May 3, 2018).
Jul 22, 2021
How Fund Managers Can Ensure They Have Effective Tax Disclosures in PPMs
Tax considerations are a key driver of private fund structuring. A panel at the recent FRA Private Investment Fund Tax Master Class discussed the importance of ensuring that the tax disclosures included in a fund’s private placement memoranda match the structure and strategy of the fund set forth in its governing documents and explored the types of tax issues that are usually addressed in domestic funds, offshore funds and hybrid situations. The program featured David Benz, formerly a partner at Crowe LLP, and James C. Cofer, partner at Seward & Kissel. This article highlights the most relevant points from the discussion. For more from FRA, see “Hot Tax Topics for Private Fund Investors and Managers” (Jan. 21, 2021).
Jul 22, 2021
SEC Exam and Enforcement Priorities: Cybersecurity, Business Continuity and Conflicts of Interest (Part One of Two)
A recent program at Seward & Kissel’s Seventh Annual Private Funds Forum explored the current SEC examination and enforcement climate affecting private fund advisers. Seward & Kissel partner Christopher Riccardi moderated the discussion, which featured partners Debra Franzese and Kevin Neubauer, along with counsel Daniel Bresler. This first article in a two-part series discusses the key takeaways from the presentation on the agency’s continuing focus on cybersecurity, business continuity plans and conflicts of interest. The second article will present the speakers’ thoughts on the SEC’s interest in responsible investing and the new marketing rule, as well as other potential areas for SEC enforcement activity. See “CCOs Share Recent SEC Exam Experiences” (Apr. 15, 2021).
Jul 15, 2021
Current Insider Trading Regulatory and Enforcement Environments: Appropriate Policies and Procedures (Part Two of Two)
One issue that is always a priority for the SEC is insider trading. Thus, Seward & Kissel's Seventh Annual Private Funds Forum included a panel that examined the current regulatory and enforcement environment around insider trading. The discussion was moderated by Seward & Kissel partner Patricia A. Poglinco and featured partners Paul M. Miller and Jack Yoskowitz, as well as counsel Philip Moustakis. This second article in a two-part series presents the panelists’ observations on recent examination focus on insider trading policies and procedures; the development of appropriate policies and procedures for handling material nonpublic information; trade surveillance and monitoring; use of alternative data; and the prospects for enforcement activity under Chair Gary Gensler. The first article analyzed the panelists’ insights on the various ways that the SEC obtains information about potential insider trading; SEC requests for information about trading issues; and recent enforcement activity and litigation. See “How Fund Managers Can Handle Insider Trading Risks After U.S. v. Chow” (Jun. 24, 2021).
Jan 14, 2021
How to Handle Level 2 and 3 Asset Valuation Challenges
To shed light on valuation-related issues, the Hedge Fund Law Report hosted a webinar on November 18, 2020, that was moderated by Robin L. Barton, Associate Editor of the HFLR, and featured Benjamin Kozinn, partner in Lowenstein Sandler’s investment management practice group, and Hugh Nelson, director in Houlihan Lokey's portfolio valuation and fund advisory business.
Sep 17, 2020
Legal and Compliance Employment Trends in 2020: Staffing, Recruitment, Compensation and Diversity
What is the right size for a fund manager’s legal and compliance department? How has the market for in-house legal and compliance support compensation changed in recent years? What are best practices fund managers can use to address diversity issues in the current climate? How has the coronavirus pandemic affected – and, in some cases, helped – the above? These questions are only a few of the ones tackled during a webinar cohosted by the Hedge Fund Law Report (HFLR) and its sister product, the Private Equity Law Report (PELR). The program was moderated by William V. de Cordova, Editor-in-Chief of the HFLR and PELR, and featured Jennifer J. Pearson, head of human resources and employment counsel at Deerfield Management; David Claypoole, president and founder of Claypoole Executive Search; and Julie Siegel, executive managing director, chief administrative officer and deputy chief legal officer at Sculptor Capital.
Mar 20, 2020
Key Topics for Fund Manager GCs and CCOs in Light of Coronavirus
The ongoing coronavirus pandemic has led to a need for fund manager GCs and CCOs to step up and exhibit leadership, Stroock partner Michael Emanuel told the Hedge Fund Law Report in a popup webinar, entitled “Coronavirus: Practical Implications for Fund Manager GCs/CCOs.” During the fireside chat, which was moderated by William V. de Cordova, Editor-in-Chief of the Hedge Fund Law Report, Emanuel provided valuable insight for fund manager GCs and CCOs on ways the coronavirus has affected fund managers’ businesses, including with respect to operational due diligence, valuation, trading continuity and employment matters; issues relating to business continuity and disaster recovery planning; regulatory considerations triggered by the pandemic; concerns managers may face relating to third-party service providers; and factors regarding costs of mitigating the pandemic’s effects.
Jan 15, 2020
Best Practices for Private Fund Managers’ Use of Alternative Data
On Wednesday, January 15, 2020, the Hedge Fund Law Report hosted a webinar that addressed issues relating to the use of alternative data by private fund managers, including the pros and cons of generating or purchasing datasets; managing third-party data providers; complying with data privacy laws and cybersecurity guidance; and avoiding insider trading and other risks. The webinar was moderated by William V. de Cordova, Editor-in-Chief of the Hedge Fund Law Report, and featured Adam Reback, director at Optima Partners; Stacey M. Brandenburg, shareholder at ZwillGen; and Jeffrey Neuburger, partner at Proskauer.
Oct 03, 2019
“Fireside Chat” With SEC Commissioner Hester M. Peirce Focused on Private Funds
On October 3, 2019, the Hedge Fund Law Report presented a webinar, entitled “Focus on Private Funds: A Fireside Chat With SEC Commissioner Hester M. Peirce.” During the program, Robin L. Barton, Senior Reporter for the Hedge Fund Law Report, and Commissioner Peirce discussed topics of interest to private fund managers, such as the Interpretation Regarding Standard of Conduct for Investment Advisers; the Concept Release on Harmonization of Securities Offering Exemptions; chief compliance officers and the SEC’s focus on individual accountability; the SEC’s adaptation to the modern asset management industry, particularly in the application of the custody and advertising rules; and the SEC’s role as regulator versus enforcer. Commissioner Peirce also answered attendees’ questions during a Q&A session at the end of the webinar.
Jul 30, 2019
Strategies and Tactics for Conducting an Effective Tabletop Exercise
The Hedge Fund Law Report and our sister product, the Cybersecurity Law Report, hosted a webinar on Tuesday, July 30, 2019, discussing the strategies and tactics fund managers can employ to conduct an effective tabletop exercise. The webinar was moderated by Shaw Horton, Associate Editor of the Hedge Fund Law Report, and featured Luke Dembosky, partner at Debevoise, John “Four” Flynn, chief information security officer at Uber, and Jill Abitbol, Senior Editor of the Cybersecurity Law Report.
May 30, 2019
Best Practices for AML Compliance by Private Fund Managers
The Hedge Fund Law Report hosted a webinar on May 30, 2019, that discussed the key components of a robust AML program. The webinar was moderated by Kara Bingham, Senior Editor of the Hedge Fund Law Report, and featured Seetha Ramachandran, partner at Proskauer and former Deputy Chief in the Asset Forfeiture and Money Laundering Section at the DOJ’s Criminal Division; Lucy Frew, partner at Walkers and head of the firm’s global regulatory and risk advisory group; and Sarah Curran, director at Promontory Financial Group and former member of the SEC’s Private Funds Unit.
Nov 15, 2018
Pros, Cons and Trends in the Use of Subscription Credit Facilities
In addition to discussing key considerations and prevailing trends in the use of subscription credit facilities by private fund managers, this fireside chat touched on a range of topics related to subscription credit facilities, including the appeal of these facilities; ways they are used by managers; methods for addressing investor and SEC scrutiny of these facilities; trends in structuring and negotiating these facilities; their recent adoption by other private fund vehicles (e.g., hedge funds and direct lending funds); and an overview of other types of facilities commonly used by private funds (e.g., portfolio liquidity facilities and management company facilities). The webinar was moderated by Rorie Norton of the Hedge Fund Law Report and featured Thomas Draper, partner at Foley Hoag, and Michael Mascia, partner at Cadwalader.
Nov 08, 2018
Recent Trends in SEC Examinations of Private Fund Managers
In addition to discussing how examiners from the SEC’s Office of Compliance Inspections and Examinations are currently approaching examinations of private fund managers, this program addressed several examination-related topics, including: the life cycle of an SEC examination; recent SEC examination initiatives; key areas of focus during examinations of private fund managers; and ways fund managers can remain prepared for an SEC examination. Moderated by Kara Bingham, Senior Editor of the Hedge Fund Law Report, the webinar featured Andrew M. Calamari, partner at Finn Dixon & Herling and former Director of the SEC’s New York Regional Office; Patricia A. Poglinco, partner at Seward & Kissel; and Joel A. Wattenbarger, partner at Ropes & Gray.
Jun 28, 2018
How Fund Managers Should Respond to Recent Trends & Developments in Employment Law
Robin L. Barton, Senior Reporter at the Hedge Fund Law Report, hosted a one-on-one discussion with Richard J. Rabin, partner at Akin Gump and head of the New York office’s labor and employment group. In addition to discussing current trends and developments in employment law, the program tackled various pressing employment topics, such as sexual harassment in the workplace, including the #MeToo movement and associated legislation; pay equity and related lawsuits in the private funds industry; developments in arbitration and what they mean for fund managers; the Trump NLRB and its implications for the private funds industry; bans on requesting salary history information; and family-, sick- and safe-leave requirements. CLE credit is available in NY, NJ, CA and TX.
May 22, 2018
An Introduction to Fund Finance Structures
In this webinar, the panelists discussed the main features of the key financing options available to private funds, including prime brokerage financing; structured repurchase agreements; special purpose vehicle financing; total return swap financing; and subscription credit facilities, as well as recent developments in the fund finance market. The webinar was moderated by Kara Bingham, Senior Editor of the Hedge Fund Law Report, and featured Jeff Johnston, managing director at Wells Fargo Securities, LLC; Fabien Carruzzo, partner at Kramer Levin; and Matthew K. Kerfoot, partner at Dechert.
Apr 11, 2018
Cryptocurrency and Private Funds: What Investors and Managers Need to Know About Emerging Regulatory Trends
Blockchain technology and the related cryptocurrency asset class are rapidly evolving and present traps for unwary fund managers. In this presentation, the Hedge Fund Law Report examined regulatory developments affecting cryptocurrencies; scrutiny of initial coin offerings (ICOs); the recent SEC examination sweep of firms that trade cryptocurrencies; and custody and other compliance issues faced by advisers who hold digital currencies.
Nov 13, 2017
How Advisers Can Avoid Common Deficiencies Under the Advertising Rule
In this webinar, panelists discussed how advisers can avoid common deficiencies in their marketing materials and advertising practices under Rule 206(4)-1 of the Investment Advisers Act of 1940, commonly referred to as the “Advertising Rule.” This presentation offered a detailed review of the advertising deficiencies identified in the September 2017 Risk Alert issued by the SEC’s Office of Compliance Inspections and Examinations, discussed how advisers can avoid these sorts of deficiencies in their own marketing materials and built on the topics discussed in our three-part advertising compliance series: “Ten Best Practices for a Fund Manager to Streamline Its Compliance Review” (Sep. 14, 2017); “Five High-Risk Areas for a Fund Manager to Focus on When Reviewing Marketing Materials” (Sep. 21, 2017); and “Six Methods for a Fund Manager to Test Its Advertising Review Procedures” (Sep. 28, 2017). The webinar was moderated by Kara Bingham, Senior Editor of the Hedge Fund Law Report, and featured Christine M. Lombardo, partner at Morgan Lewis; Richard F. Kerr, partner at K&L Gates; and Todd Kaplan, founder and principal of Cloudbreak Compliance Group.
Oct 18, 2017
2016-17 Side Letter Trends: A Conversation With Seward & Kissel's Steve Nadel
The Hedge Fund Law Report and Seward & Kissel co-produced this webinar in which William V. de Cordova, Editor‑in‑Chief of the Hedge Fund Law Report, and Seward & Kissel partner Steve Nadel discussed issues fund managers commonly face with respect to side letters and how the side letter landscape evolved over the past year. As Seward & Kissel had completed its second annual study of side letters entered into by its hedge fund manager clients, considering the prevalence and features of common side letter provisions, the webinar provides valuable insights gleaned by Nadel – lead author of the study.
May 11, 2023
A Practical Approach to Navigating the New Cybersecurity Legal and Regulatory Landscape
May 11, 2023
SEC Remains Focused on Off-Channel Communications
May 11, 2023
Key Differences Between U.S. and U.K. Marketing Rules and Tips for Dual Compliance (Part One of Two)
May 25, 2023
Looking Beyond Blaszczak: Lessons for Hedge Fund Managers
May 25, 2023
Reconciling Disparate U.S. and U.K. Requirements for Preparing and Delivering Non‑Standard Track Records (Part Two of Two)