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Hedge Fund Report - Summary of Key Developments - Spring 2012

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Hedge Fund Report - Summary of Key Developments - Spring 2012 March 2012 Hedge Fund Report - Summary of Key Developments - Spring 2012 BY THE INVESTMENT MANAGEMENT, SECURITIES LITIGATION & TAX PRACTICES This continues to be a time of rapid change for the hedge fund industry, as the Securities and Exchange Commission (the “SEC”), the Commodity Futures Trading Commission (the “CFTC”), and various other regulatory agencies, including the Federal Reserve Board (the “Federal Reserve”) and the Department of the Treasury (the “Treasury”), continue to propose and finalize rules to implement provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). There have also been a number of significant developments in the hedge fund tax area, and the SEC and private plaintiffs have continued to bring enforcement actions and litigation involving hedge funds and other types of private investment funds and fund managers. This Report provides an update since our last Hedge Fund Report in November 2011 and highlights recent regulatory and tax developments, as well as recent civil litigation and enforcement actions as they relate to the hedge fund industry. Paul Hastings attorneys are available to answer your questions on these and any other developments affecting hedge funds and their investors and advisers. I. SECURITIES-RELATED LEGISLATION AND REGULATION ........................................................................... 2 A. Dodd-Frank Rulemaking ................................................................................................................. 2 B. Other New and Proposed Securities-Related Legislation and Regulation ................................................ 5 C. Other Updates............................................................................................................................... 7 II. TAXATION........................................................................................................................................... 9 A. White House Budget Proposal.......................................................................................................... 9 B. Carried Interest Legislation ........................................................................................................... 10 C. Capital Gains Rates Set to Rise...................................................................................................... 10 D. Recent Foreign Account Tax Compliance Act Developments............................................................... 10 E. Recent FBAR Developments .......................................................................................................... 11 F. New Reporting Requirement for Individuals with Foreign Financial Assets ........................................... 12 G. IRS Releases Guidance on Providing Schedules K-1 Electronically to Recipients ................................... 15 H. Proposed New York City Audit Position............................................................................................ 15 III. CIVIL LITIGATION.............................................................................................................................. 16 A. Update on Previously Reported Cases............................................................................................. 16 1 B. New Developments in Securities Litigation ...................................................................................... 16 IV. REGULATORY ENFORCEMENT .............................................................................................................. 19 A. Insider Trading............................................................................................................................ 19 B. Expert Network Firms................................................................................................................... 20 C. Valuation of Illiquid Assets ............................................................................................................ 23 D. Ponzi Schemes ............................................................................................................................ 24 E. Fraudulent Misrepresentations....................................................................................................... 26 I. SECURITIES-RELATED LEGISLATION AND REGULATION A. Dodd-Frank Rulemaking The following is the status of various proposed and final rules and regulations implementing the Dodd- Frank Act that are most relevant to the hedge fund industry. 1. SEC and other Financial Regulators’ Extension of the Comment Period on the Jointly Proposed Volcker Rule On December 23, 2011, the SEC, jointly with the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, and the Federal Reserve (collectively, the “Agencies”) issued a notice extending the comment period for their jointly proposed rule implementing Section 619 of the Dodd-Frank Act, also known as the “Volcker Rule.” On February 14, 2012, the CFTC also issued a proposal for implementing the Volcker Rule separate from the Agencies which adopts the entire text of the Agencies’ proposed rule and adds additional CFTC-specific rule text. More information on the CFTC’s proposed rule is available here. The Volcker Rule generally prohibits a banking entity from (i) engaging in short-term proprietary trading of any security, derivative, and certain other financial instruments for the banking entity’s own account; or (ii) owning, sponsoring, or having certain relationships with a hedge fund or private equity fund. The Agencies received more than 14,000 comments since they proposed the rule implementing the Volcker Rule on October 12, 2011. The proposed regulations have garnered significant criticism from the financial industry, primarily on the grounds that the Rule is overbroad and would reduce liquidity in the markets. Due to the complexity of the issues involved and to facilitate coordination of the rulemaking among the Agencies, the Agencies extended the comment period 30 days until February 13, 2012. The deadline for comments on the CFTC’s proposed Volcker Rule is April 16, 2012. Additional information on the Agencies’ proposed regulations implementing the Volcker Rule is available here. 2. SEC’s Final Rule Amending Definition of “Qualified Client” On February 15, 2012, the SEC adopted its final rule codifying its final order of July 12, 2011 increasing the dollar thresholds of the assets under management and net worth tests in the definition of “qualified client” in Rule 205-3 under the Investment Advisers Act of 1940, as amended (the “Advisers Act”). On that same date, the SEC also adopted final rules amending Rule 205-3 to (i) provide that the SEC will adjust the dollar amount tests for inflation on a five-year basis (as required by the Dodd-Frank Act), (ii) exclude the value of a person’s primary residence from the net worth test, and (iii) add certain transition provisions to Rule 205-3. As amended, the assets under management threshold for qualified clients is $1 million (up from $750,000) and the net worth threshold for qualified clients is $2 million (up from $1.5 million). The revised dollar amounts, which took effect on September 19, 2011, reflect inflation from 1998 to the end of 2010. The first scheduled adjustment to the dollar amount thresholds will take place in 2016. The final rule adopts certain 2 transition provisions, which ensure that the heightened standards for performance fee arrangements apply only to new contractual arrangements, substantially as proposed, and adds an additional provision to allow for limited transfers of interest (e.g., by gift or bequest, or pursuant to an agreement related to a legal separation or divorce) from a qualified client to a person that was not a party to the contract and is not a qualified client at the time of the transfer. The final rule differs from the proposed rule regarding the primary residence exclusion in one respect: under the final rule, any increase in the amount of debt secured by the primary residence in the 60 days before the advisory contract is entered into will be included as a liability. This change is intended to prevent debt that is incurred shortly before entry into an advisory contract from being excluded from the calculation of net worth merely because it is secured by the individual client’s home. The final rule, including the primary residence exclusion and transition provisions, will become effective on May 22, 2012. Additional information on the SEC’s final rule amending the definition of “qualified client” under the Advisers Act is available here. 3. SEC’s Final Rule Revising Definition of “Accredited Investor” On December 21, 2011, the SEC adopted final amendments to its rules to exclude the value of a person’s home from the net worth calculation used to determine whether an individual may invest in certain unregistered securities offerings. The amended rule codifies changes to the definition of “accredited investor” under the Securities Act of 1933, as amended (the “Securities Act”), made effective upon the passage of the Dodd-Frank Act. The final rule differs from the rule proposed by the SEC on January 25, 2011 in three respects: the final rule (i) includes transition provisions which permit the application of the former net worth test for an accredited investor in certain limited circumstances, (ii) treats certain indebtedness secured by the person’s primary residence in the 60 days prior to the sale of securities to that individual
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