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

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

SEC Provides Guidance on Registration of Advisers Related to Registered Investment Advisers

On January 18, 2012, the Securities and Exchange Commission (the “SEC”)  issued a No-Action letter (the “2012 ABA Letter”) to the American Bar Association (the “ABA”), Business Law Section, providing guidance as to when certain entities affiliated with a registered investment adviser would be permitted to rely on the registered investment adviser’s registration, and would not be required to register separately as investment advisers under the Investment Advisers Act of 1940 (the “Advisers Act”).  The 2012 ABA Letter confirms the SEC’s guidance on these issues in Question and Answer G.1. of its December 8, 2005 letter addressed to the ABA’s Subcommittee on Private Investment Entities and responds to additional related questions.  Question and Answer G.1. is referred to as the “2005 ABA Letter” and is further described below.  The continued applicability of the 2005 ABA Letter had been called into question by the amendments resulting from the repeal of the section 203(b)(3) private adviser exemption under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). Continue reading

SEC To Propose Hedge Fund Manager Registration Rules

The SEC continues to closely follow its calendar of anticipated Dodd-Frank rulemaking activity and has posted a notice of an Open Meeting, to be held on Friday,  November 19, 2010 at 10:00 a.m.

The SEC plans to propose  Investment Advisers Act of 1940 rules:

  • requiring advisers to hedge funds and other private funds to register with the SEC;
  • addressing reporting by certain investment advisers that are exempt from registration;
  • increasing the statutory threshold for SEC  registration of investment advisers from $25 million in assets under management to $100 million;
  • implementing new exemptions from the registration requirements  for advisers to venture capital funds and advisers with less than $150 million in private fund assets under management in the United States; and
  • clarifying the meaning of certain terms included in a new exemption for foreign private advisers.

The SEC will consider proposed security-based swaps rules: Continue reading

Hedge Funds: When To Register

If you read our post on the hedge fund registration bills that are currently in congress, you may start to get the feeling that hedge fund registration is all but inevitable.   The question that a lot of hedge fund managers are now facing is: when should I pull the trigger on registration?  Do I wait until legislation is passed or do I get ahead of the curve and register now? Continue reading

Hedge Fund Registration – A Summary

There has obviously been a lot of talk lately about hedge fund registration.  There are several bills that are currently pending in congress right now, so we thought that we would take this opportunity to summarize those bills and give you an idea of where things might ultimately land.  Additionally, we have provided links to more in-depth Summary Memo’s which provide more details on each bill. Continue reading