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San Francisco Corporate & Securities partner Jay Gould is quoted in Compliance Week on new investor accreditation practices associated with the JOBS Act.

JOBS Act Puts Spotlight on Investor Accreditation Practices

Compliance Week
January 23, 2013

When the Jumpstart Our Business Startups Act, known as the JOBS Act, was enacted last year, a key piece was eliminating solicitation and advertising restrictions on hedge funds and private securities offerings.

Jay Gould, a partner with the law firm Pillsbury Winthrop Shaw Pittman, says the renewed focus on investor accreditation follows years of the private fund industry sliding into a mere cursory “check-the-box” approach. While 20-30 years ago, thorough pre-evaluation of clients or targeting only those with pre-existing relationships was the norm, more recent years have seen evaluation standards decline. “When hedge funds really proliferated in the last 15 years or so, a lot of that stuff just didn’t get done any more,” he says.

Instead, funds began to rely primarily on the representations in subscription agreements. “You sent out a questionnaire, people answered the questions, and unless the guy was pushing a Safeway cart down skid row there was really no reason to think he or she was not an accredited person or a qualified client.”

The requirement of having a pre-existing substantial relationship with the investor similarly fell by the wayside or became loosely interpreted, all under the blinking eyes of regulators. Brazen fund managers even began to brag openly that “nobody checks this stuff any way” and “nobody really knows if anyone is accredited.”

A few years ago, such talk began to wake up regulators, who then began to once again pay more attention to procedures for verification, Gould says. By the time the JOBS Act was enacted last April it became clear that these laissez faire approaches were coming to an end.

At the time, Gould expected that the Commission would go back to some of these old standards of requiring a balance sheet or income statement, or some kind of independent verification. “But they really didn’t do that in the rule,” he says. “They just said it is mushy, so if somebody has a job where it is obvious they make $200,000 a year then you can rely on that, or you can outsource it, or rely on third parties. You just have to come up with something that makes sense for you.”

This has led to considerable debate about whether a principle-based approach is preferable to having hard-and-fast rules. Some contend that issuers want clear-cut rules “so they know how to avoid them,” says Gould.

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By:  Jennifer Jordan McCall, Ellen Harrison, Elizabeth Fry, Kim Schoknecht, Hiram Powers-Heaven

On New Year’s Day 2013, to avoid the so-called “fiscal cliff,” Congress passed the American Taxpayer Relief Act of 2012 (“2012 Act”). The 2012 Act raises taxes on some taxpayers while retaining most of the provisions enacted by the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA,” generally referred to as the “Bush tax cuts”) and the two-year extension of EGTRRA enacted at the end of 2010. Most of the changes introduced by the 2012 Act relate to income tax; however, there are important changes to the gift, estate, and generation-skipping transfer tax provisions as well.

Under the 2012 Act, the gift, estate, and generation-skipping transfer tax provisions of Internal Revenue Code are now “permanent,” meaning that the sunset provisions of EGTRRA have been repealed. The current law has no expiration date. The $5 million exemptions for the gift tax, estate tax and the generation-skipping transfer tax (collectively, the “transfer taxes”) are still provided and are to be indexed for inflation. The exemptions are indexed to $5.25 million this year, so that taxpayers who gave away the full $5.12M in 2012 can still give an additional $130,000 this year sheltered by the gift tax and/or generation-skipping transfer tax exemptions. To the extent that gift tax or estate tax is incurred under the 2012 Act, the top marginal rate was increased from 35% to 40%. In addition, “portability,” which permits a surviving spouse to use any unused estate tax exemption of the deceased spouse, has been made permanent.


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By Joseph T. Lynyak III and Rodney R. Peck

This Alert analyzes steps that officers and directors of bank and non-bank financial companies and their holding companies and affiliates can take to address personal liability for alleged breaches of duty to manage and supervise a financial company’s operations, allegations which are being made in an increasing number by federal and state regulatory agencies, including the federal banking agencies and the U.S. Consumer Financial Protection Bureau (CFPB).

On December 10, 2012, a California jury returned a verdict of $169 million in a case brought by the FDIC against three former IndyMac Bancorp Inc. executives after determining that those officers were negligent in making loans to homebuilders by continuing to push for growth in loan production without proper regard for creditworthiness and market conditions. Soon thereafter, the former CEO of IndyMac Bank agreed to pay $1 million from his personal assets in addition to available insurance proceeds to settle another FDIC claim related to the failure of IndyMac Bank. In an unrelated yet problematic series of developments, the newly formed CFPB recently assessed civil money penalties against three holding companies for aggressive marketing practices in an aggregate amount exceeding $500 million.


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Institutional Investor’s 19th Annual Alpha Hedge East Conference is excited to announce New Orleans’ own James Carville as a keynote speaker. Mr. Carville will present his views on American and international politics, with a focus on the second administration of Barack Obama, the divided Congress, and the challenges facing the major political parties and players.

CarvilleJames Carville
Political Consultant

Join us February 5-7, 2013 in New Orleans as we kick-off the 2013 conference season in style at the most educational and business-driven event on the winter calendar.

Be sure to reference code ‘PWS10‘ to receive 10% discounted rate!*

Speakers Include:

  • Scott S. Cowen, President of Tulane University, TULANE UNIVERSITY 
  • Chris J. Acito, Chief Executive Officer and Chief Investment Officer, GAPSTOW CAPITAL PARTNERS
  • Fred Brettschneider, President, LIBREMAX CAPITAL, LLC
  • Michael Dieschbourg, Managing Director, BROADMARK ASSET MANAGEMENT
  • Chad Earnst, Assistant Director, U.S. SECURITIES & EXCHANGE COMMISSION
  • Michael Gaviser, Managing Director, KOHLBERG KRAVIS ROBERTS & CO. L.P.
  • Richard Howard, Global Strategist, HAYMAN CAPITAL MASTER FUND
  • Jason Huemer, President, VISIUM ASSET MANAGEMENT
  • Mark Jurish, President & Chief Executive Officer, LARCH LANE ADVISORS, LLC
  • Steve Kuhn, Partner & Head of Fixed Income Trading, PINE RIVER CAPITAL MANAGEMENT
  • David Kupperman, Managing Director, NEUBERGER BERMAN GROUP, LLC
  • Jon Levin, Strategy and Corporate Development, GROSVENOR CAPITAL MANAGEMENT, L.P.
  • Amin Majidi, Chief Risk Officer, PREMIUM POINT INVESTMENTS
  • Jonathan Wood, President, WHITEBOX ADVISORS
  • Paul Zummo, Chief Investment Officer, J.P. MORGAN ALTERNATIVE ASSET MANAGEMENT

Sessions Include:

  • Credit Investing: Redefining the Credit Universe
  • Pairing the Investment Thesis with the Proper Infrastructure Requirements: Manager Due Diligence
  • Mortgage Investing: A 10 Trillion Dollar Universe in Need of Navigation
  • Risk Management from Institutional Investors’ Perspective
  • Seeding; a “growth” industry


Recognizing the budgetary restraints in the industry, Institutional Investor is proud to offer a high-quality conference at an affordable rate.

View Early Confirmed Attendees Here

A limited number of complimentary passes are available for qualified Public and Private Pension Funds, Pension Consultants, Foundations, Endowments, Family Offices and High Net Worth Investors. For more information, please contact Rinaldo Crassa at or 212.224.3510. All passes are subject to approval.

We look forward to hosting you next month!


Institutional Investor

*Discount is only valid on registrations after January 9, 2013 and cannot be applied to prior purchases





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Pillsbury will be hosting a Managers Only program on Wednesday, January 23, 2013.  The program entitled “Challenges and Opportunities for Starting a Hedge Fund in 2013” starts at 3:30 p.m. and will be held at Pillsbury’s San Francisco office at Four Embarcadero Center, 22nd Floor.  This event will be divided into two seminars.  Panel 1 seminar – “Organizing and Operating a Startup Fund” will start at 4:00 p.m. to be followed by Panel 2 seminar – “Effective Capital Raising for Emerging Manager” at 5:15 p.m.  For more information about this event and to register, please click HERE.