Investment Fund Law Blog

InvestmentFundLawBlog

Updates and Insights on Legal Issues Facing Fund Managers and Investors

Category Archives: Private Equity

Subscribe to Private Equity RSS Feed

CFTC Asserts Broader Jurisdiction over Digital Asset Exchanges, Levies $75,000 Fine

Posted in Advisory, Client Alert, Hedge Funds, Investment Advisers, Private Equity, Private Funds
The CFTC’s recent enforcement against Bitfinex’s financed trading activities demonstrates the Commission’s increasing interest in virtual currency and digital assets. The U.S. Commodity Futures Trading Commission (CFTC) is further expanding its oversight of virtual currency exchanges and digital assets in general. On June 2, 2016, Bitfinex (a Hong Kong-based bitcoin and cryptocurrency exchange) settled with… Continue Reading

SEC Issues Guidance Expanding the Private Fund and Venture Capital Fund Adviser Exemptions

Posted in Advisory, Hedge Funds, Investment Advisers, Private Equity, Private Funds
President Obama signed into law the SBIC Advisers Relief Act (as part of the Fixing America’s Surface Transportation Act of 2015—the FAST Act) on December 4, 2015.  (See also our Annual Compliance Alert)  After the enactment of the Dodd-Frank Act, advisers to Small Business Investment Companies (SBICs) were limited in their choice to one of… Continue Reading

Update Your Subscription Documents – FATCA and CRS

Posted in Advisory, Client Alert, Hedge Funds, Investment Advisers, Private Equity, Private Funds
The Cayman Islands Tax Information Authority advised yesterday that it will allow Cayman Islands Financial Institutions to rely on CRS due diligence procedures for new accounts opened on or after 1 January 2016 to identify specified/reportable persons for the purposes of UK FATCA and CRS reporting.  This means that, provided CRS compliant self-certification forms are… Continue Reading

Negotiating Cybersecurity Contractual Protections for Retirement Plans

Posted in Advisory, Client Alert, Hedge Funds, Investment Advisers, Private Equity, Private Funds
The ERISA Advisory Council recently announced that, as part of its goals for 2016, it will be focusing on cybersecurity issues affecting retirement plans and, in particular, the extent to which such issues relate to third-party administrators and vendors (TPAs) of retirement plans. By shining the spotlight on the role of TPAs in combatting cyber-related… Continue Reading

Sun Capital Court Finds that Common Industry Practices Exposed PE Funds to Pension Plan Liabilities

Posted in Advisory, Client Alert, Investment Advisers, Private Equity, Private Funds
A group of related private equity (“PE”) funds were found liable for a bankrupt portfolio company’s pension plan debts in the latest and most worrisome decision in the long-running Sun Capital Partners III, LP v. New England Teamsters and Trucking Industry Pension Fund dispute. The novel decision, if upheld on appeal, will trigger a reevaluation… Continue Reading

CA Legislation Would Require Pensions to Disclose Fees and Expenses of Alternative Investments

Posted in Advisory, Hedge Funds, Investment Advisers, Private Equity, Private Funds
In February, California State Treasurer, John Chiang along with State Assemblyman Ken Cooley sponsored Assembly Bill (AB) 2833 which, if enacted, would require private equity firms to disclose fees and expenses for public pensions or retirement systems in California. On March 17, 2016 Assemblyman Cooley submitted an amendment to the legislation that would include the… Continue Reading

SEC Reveals Wide-Ranging 2016 Examination Priorities

Posted in Advisory, Broker-Dealers, Client Alert, Hedge Funds, Investment Advisers, Private Equity, Private Funds, Registered Investment Companies
On January 11, the Office of Compliance Inspections and Examinations (OCIE) of the SEC announced its 2016 Examination Priorities (“Priorities”). To promote compliance, prevent fraud and identify market risk, OCIE examines investment advisers, investment companies, broker-dealers, municipal advisors, transfer agents, clearing agencies, and other regulated entities. In 2016, OCIE will continue to rely on the… Continue Reading

Changes in the IRS Partnership Audit Rules – Action You Need to Take Now

Posted in Advisory, Client Alert, Hedge Funds, Investment Advisers, Private Equity, Private Funds
Congress has replaced the TEFRA partnership audit rules with a new regime that redistributes the burdens of the audit process between partnerships and partners on the one hand and the IRS on the other, and also eliminates many rights that individual partners might previously have had in the audit process.  Even more troubling, these new rules… Continue Reading

SEC Risk Alert: Outsourced Chief Compliance Officers

Posted in Advisory, Hedge Funds, Investment Advisers, Private Equity, Private Funds
The Securities and Exchange Commission’s (“SEC”) Office of Compliance Inspections and Examinations (“OCIE”) released a “Risk Alert” on November 9, 2015, the purpose of which is to raise awareness of compliance issues observed in connection with the examination of registered investment advisers and investment companies that outsource their Chief Compliance Officers (“CCO”) to unaffiliated third… Continue Reading

The Dos and Don’ts of an SEC Examination

Posted in Advisory, Client Alert, Hedge Funds, Investment Advisers, Private Equity, Private Funds
The regulatory environment for SEC-registered advisers has become more complex as the result of a more aggressive and interconnected Securities and Exchange Commission (SEC). The connecting hub within the SEC is the Office of Compliance Inspection and Examination (OCIE), which serves as the “eyes and ears” of the SEC. The OCIE often is the first line… Continue Reading

SEC Finally Adopts “Regulation Crowdfunding”

Posted in Broker-Dealers, Client Alert, Hedge Funds, Investment Advisers, Private Equity, Private Funds
The SEC’s final crowdfunding rules, which are largely consistent with the proposed rules, provide broader access to capital for startups and small businesses, though concerns over cumbersome disclosure and regulatory requirements persist. On October 30, 2015, the Securities and Exchange Commission (SEC) voted to adopt final rules implementing Title III of the Jumpstart Our Business… Continue Reading

More Investment Advisers on the Hook for Failure to Disclose Conflicts of Interest

Posted in Investment Advisers, Private Equity, Private Funds
On November 3, 2015, the Securities and Exchange Commission (SEC) announced that Fenway Partners, LLC (Fenway Partners), a private equity fund adviser, agreed to pay more than $10 million to settle charges that it failed to disclose conflicts of interest to a fund client and omitted material facts to investors. SEC Findings Fenway Partner’s current… Continue Reading

SEC Adopts Final Crowfunding Regulation

Posted in Advisory, Broker-Dealers, Hedge Funds, Investment Advisers, Private Equity, Private Funds
On October 30, 2015, the Securities and Exchange Commission (SEC) adopted Regulation Crowdfunding. The final rule permits companies to offer and sell securities through crowdfunding. The “Regulation Crowdfunding Exemption” is created under Section 4(a)(6), Title III of the JOBS Act. The key features of the final rules Permit individuals to purchase securities in crowdfunding offerings… Continue Reading

CA Treasurer Calls for Legislation to Require Disclosure of Private Equity Fees

Posted in Private Equity
In a letter addressed to CalPERS and CalSTRS, California State Treasurer, John Chiang, has called for state legislation to require private equity firms to disclose all fees paid by California public pension funds.  According to the letter, the disclosure requirements should be applicable to the private equity investments of all public pension funds in California… Continue Reading

Warning to Fund Counsel – When It Comes to Conflicts, Leave Nothing Undisclosed

Posted in Advisory, Hedge Funds, Investment Advisers, Private Equity, Private Funds
The SEC, again, makes it clear:  all aspects of fee, expense and other arrangements must be disclosed accurately and in detail before commitments are accepted. The SEC recently announced a settlement with three investment advisor affiliates of The Blackstone Group (the Advisors) that were accused of breaching their fiduciary duty to funds they manage or… Continue Reading

Filing Deadline for Form BE-180 Is November 1, 2015

Posted in Advisory, Broker-Dealers, Client Alert, Hedge Funds, Investment Advisers, Private Equity, Private Funds, Registered Investment Companies
U.S. Investment advisers, other financial services providers, and pooled investment vehicles – private and public funds – involved in certain cross-border transactions must file. Background The U.S. Department of Commerce’s Bureau of Economic Analysis (“BEA”) is conducting its next five-year “Benchmark Survey of U.S. Financial Services Providers and Foreign Persons” on Form BE-180. The survey… Continue Reading

FinCEN Proposes to Regulate Investment Advisers under the Bank Secrecy Act

Posted in Advisory, Client Alert, Hedge Funds, Investment Advisers, Private Equity, Private Funds
The U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN) issued a notice of proposed rulemaking on August 25, 2015 which, among other things, would add SEC-registered investment advisers to the “financial institutions” regulated under the Bank Secrecy Act (BSA). This represents another step by the U.S. government to expand the professions and industries deemed anti-money… Continue Reading

FinCEN Proposes New AML Regulations for Investment Advisers

Posted in Advisory, Hedge Funds, Investment Advisers, Private Equity, Private Funds
In a release issued today, the Financial Crimes Enforcement Network (FinCEN) has proposed anti-money laundering (AML) regulations for investment advisers. The proposed rule requires investment advisers registered or required to be registered with the Securities and Exchange Commission (SEC) to establish AML programs and report suspicious activity to FinCEN pursuant to the Bank Secrecy Act… Continue Reading

PILLSBURY PARTNER QUOTED IN FUNDFIRE

Posted in Hedge Funds, Investment Advisers, Private Equity, Private Funds
Kimberly Mann, co-head of Pillsbury’s Investment Funds and Investment Management Group, was interviewed and quoted at length in an article published in FundFire this week. The article explored whether regulators should permit asset managers to settle cases without admitting culpability. In response to that question, Ms. Mann, who has expertise in investment advisor regulatory and… Continue Reading

Advisers Get Ready – New AML Requirements May Be on the Way

Posted in Advisory, Hedge Funds, Investment Advisers, Private Equity, Private Funds
The U.S. Treasury Department’s Financial Crimes Enforcement Network will soon propose new rules that may require investment advisers to establish and implement written anti-money laundering programs designed to prevent advisory clients from using advisers to launder funds or perpetrate other criminal activities. The rules also may require advisers to report suspicious client activity. The new… Continue Reading

Treasury Imposes Toll Charge on Some Transfers of Assets by U.S. Taxpayers to Partnerships with Their Foreign Affiliates

Posted in Advisory, Client Alert, Hedge Funds, Private Equity, Private Funds
On August 6, 2015, the Treasury and the IRS issued Notice 2015-54, which implements a Clinton-era tax provision intended to prevent U.S. taxpayers from using the partnership provisions of the Code to shift built-in gain on property contributed to a partnership to non-U.S. affiliates of the transferor that are partners in the transferee partnership. These… Continue Reading

Proposed Regulations Target Management Fee Waivers

Posted in Client Alert, Investment Advisers, Private Equity, Private Funds
In the Federal Register for July 23, 2015, the Treasury Department published proposed regulations regarding the circumstances under which partnership allocations and distributions will be treated as disguised payments for services. These proposed regulations are aimed at attempts by investment fund managers to convert ordinary, management fee income into tax-favored long-term capital gains through the… Continue Reading

Proposed Treasury Regulations May End Private Equity Management Fee Waivers

Posted in Investment Advisers, Private Equity, Private Funds
It has been a common practice of private equity firms to convert their right to receive management fees from the funds they manage into the right to receive profits and distributions from the funds through management fee waiver arrangements.  As a result of these arrangements, the firms achieve a lower tax rate because the profits… Continue Reading