General Solicitation Ban to be Lifted

Significant changes are imminent for the methods that may be used by private funds to market their products.  Congress has approved the bi-partisan HR 3606, the Jumpstart Our Business Startups (JOBS) Act, which President Obama is expected to sign in the near future.  The JOBS Act includes a provision of great interest to our private fund adviser clients: the easing of the general solicitation and general advertising ban in private offerings under Securities Act of 1993 Regulation D Rule 506 and the application of that amendment to other federal securities laws.  Also included is a provision raising the threshold for an issuer’s registration under the Securities Exchange Act of 1934 (the “Exchange Act”) from 500 “holders of record” to 2,000. Continue reading

SEC’s OCIE Issues Risk Alert on Unauthorized Trading and Activities

The Securities and Exchange Commission (SEC) Office of Compliance Inspections and Examinations (OCIE) recently released a National Examination Risk Alert  titled “Strengthening Practices for Preventing and Detecting Unauthorized Trading and Similar Activities.”

The Risk Alert is addressed to both broker-dealers and investment advisers. Carlo di Florio, Director of OCIE, suggested that firms consider the observations in the Risk Alert  “as they review their compliance and supervisory controls to detect and deter unauthorized trading” and other unauthorized activities.  As the SEC has repeatedly stated, a firm must set the tone from the top and create a culture of compliance. OCIE recommends involving management and non-management personnel in the efforts. Continue reading

Upcoming 2012 SEC Regulatory Deadlines

Congratulations to all newly registering investment advisers that have submitted their Forms ADV Part 1A and Part 2A via the Investment Adviser Registration Depository (“IARD”)  in anticipation of the March 30, 2012 deadline! The Securities and Exchange Commission (“SEC”) generally has up to 45 days after receipt of the Form ADV to declare the registration effective and generally will notify an adviser via email once its registration is declared effective.  Registrations may be declared effective at any time during that 45-day period. An adviser can also check on IARD under the heading “Registration/Reporting Status” to see if its registration has been declared effective.

Below is a review and reminder of certain of the annual regulatory requirements that may be applicable to investment advisers. This is not intended to be an exhaustive list of  SEC regulatory requirements and does not cover state-specific requirements.  In particular, it should be noted that the below information does not address any regulatory filings or reports required by the Internal Revenue Service, Department of the Treasury (such as TIC forms) or the Commodity Futures Trading Commission (“CFTC”).  We expect to release future articles on other required regulatory filings. The information below is for informational purposes only and is not legal advice. Continue reading

Recent SEC Investment Adviser Enforcement Cases – Deficient Compliance Programs and Aberrational Performance

HedgeOp would like to take the opportunity to highlight recent enforcement actions brought by the SEC Enforcement Division’s Asset Management Unit and remind all about the importance of  implementing a thorough compliance program and of maintaining a robust culture of compliance.

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Insider Trading Action: Exchange-Traded Funds (“ETFs”)

The SEC appears to be focusing on markets and products not previously investigated in the insider trading context. According to Sanjay Wadhwa, Associate Director of the SEC’s New York Regional Office and Deputy Chief of the Market Abuse Unit, the SEC is “aggressively working to identify and prosecute illegal insider trading across multiple markets and derivatives products regardless of the complexity of the trading pattern that we have to unravel in our investigations.”
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Primary Global Research Consultant Arrested Today in Continuing Insider Trading Probe

Today federal authorities arrested Winifred Jiau, a technology expert who was employed as a consultant at Primary Global Research LLC, on charges related to her alleged involvement in an insider trading scheme.  Jiau is the seventh individual associated with Primary Global Research to be charged of insider trading beginning last month.  Primary Global Research, an expert-network firm based in Mountain View, California, specialized in providing investors with information from public company employees.  Jiau, who was hired as a consultant at Primary Global Research, allegedly sold inside information to portfolio managers at hedge funds that paid her over $200,000 between 2006 and 2008.

Jiau has been charged with both conspiring to commit securities fraud and engaging in securities fraud by selling material nonpublic information about publicly traded companies.  The latter charge could potentially involve up to 20 years in prison and a $5,000,000 fine.

No New Funds Expected for SEC and CFTC

The Wall Street Journal Online reports that the Senate voted 82-14  this morning to end debate on a continuing resolution for $250 billion to fund the government through March 4, 2011.  It is expected that, after a final vote in the Senate, the resolution will be sent to the House of Representatives for a vote prior to the expiration of the current stop-gap measure at midnight tonight.

According to a Senate Appropriations Committee summary produced late Sunday, the resolution provides a small increase of $1.16 billion over 2010 spending, but it appears that there will be no new funds to help the SEC or CFTC with regulatory reform under Dodd-Frank.  According to the Wall Street Journal Online, the proposed spending plan would give the SEC authority to set up five offices mandated by Dodd-Frank, including a whistleblower office.

A $1.1 trillion omnibus bill, supported by the Democrats and hailed by the SEC and CFTC, would have included an 18% increase in the SEC’s budget ($200 million in new funding), and a 69% increase in the CFTC’s budget ($100 million of additional money).  That bill failed to garner sufficient support and, last Thursday night,  the Dow Jones Newswire reported that  Senate Majority Leader Harry Reid (D-Nev.) had announced that the Senate would focus instead on a short-term funding measure.  At that time, it was reported that the Senate Republicans were considering only a resolution proposed by Minority Leader Mitch McConnell (R-Ky.), which would have simply maintained funding at the 2010 budget levels until February 18, 2011.  The House’s version of a new measure, released in early December, would have shifted more funds to the SEC and the CFTC while maintaining the 2010 budget.

The SEC and CFTC had expected to use the new funding under the omnibus bill to allow the agencies to more  effectively carry out their new responsibilities and implement the many new rules under the Dodd-Frank Act.  These include both agencies’ supervision of the over-the-counter derivatives markets and the SEC’s new power to regulate and examine certain private fund advisers and municipal advisers.   Now, it appears that, despite these  new duties, which both SEC Chairman Mary Schapiro and CFTC Chairman Gary Gensler have said require hiring hundreds of new staff members and significant upgrades in technology, the SEC and CFTC will  be forced to operate within their 2010 budgets.

Although the Obama administration could shift money around to help the SEC and CFTC, it is likely that the Republicans, who did not support Dodd-Frank and will take control of the House of Representatives in January 2011, will attempt to block any such shifts through legislation.

The Wall Street Journal Online reports that Senate Finance Committee Chairman Max Baucus (D., Mont.) remains confident that the Democrats could still win funding battles for financial regulation.  Sen. Richard Shelby (R., Ala.), however, is quoted as  saying, “It’s going to be a big political fight. I think the odds shift toward Republicans.”

Civil, Criminal Insider Trading Investigations Target Hedge Funds, Others

According to a Wall Street Journal  report, federal authorities are conducting civil and criminal investigations of insider trading that could involve hedge funds, mutual funds, research consultants, investment bankers, and analysts.  The scope of the investigations appears to be exceptionally broad and has several areas of focus, including whether:

(1) independent analysts and consultants working with expert networks provided material non-public information to hedge funds and mutual funds;

(2) investment bankers selectively leaked material non-public information about transactions;

(3) independent analysts and research boutiques provided non-public information to clients; and

(4) traders at hedge funds and trading firms improperly gained material non-public information about merger deals.

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Hedge Fund Charged with Multiple Violations of Rule 105 of Regulation M; Insufficient Policies and Procedures; $2.6 Million Settlement

The SEC has fired a warning shot to hedge funds and other market participants that it will target Rule 105 violations in its enforcement efforts and that hedge funds are expected to have robust policies and procedures for preventing and detecting Rule 105 violations.  On Thursday, the SEC charged Dallas-based hedge fund manager Carlson Capital, L.P. with four violations of Rule 105 of Regulation M.  The regulation prohibits purchases of an equity security made available through a public offering from an underwriter or broker or dealer participating in the offering after having sold short the same security during a restricted period (which is generally five business days before the pricing of the offering).  Rule 105 is designed to prevent market participants from selling short a security just before a company prices a public offering, thereby artificially depressing the market price of the security and allowing the short seller to purchase the security at a lower price.  Rule 105 applies irrespective of a trader’s intent.  Carlson agreed to settle the charges for more than $2.6 million dollars and was also censured and ordered to cease and desist from further violations. Continue reading

Insider Trading Case Against Mark Cuban Gets New Life; Implications for Hedge Funds

In a case that should be watched closely by hedge fund managers, a federal appellate court has revived the SEC’s insider trading case against billionaire Dallas Mavericks owner Mark Cuban.  The appellate court found that there was “more than a plausible” basis to find in the SEC’s favor.  The case will now go back to the lower court for further litigation or settlement discussions.

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