New RulesISSUE Jan 2019 Conformity360 Newsletter on How Regulatory Changes Impacting the Investment Managers FAMILY OFFICES A NEW DISRUPTOR? Are family offices a new trend ? Recently, several hedge funds have reported that they plan to return client money and turn into family offices. These include Astellon Capital Partners, Ascend Capital LLC and Omega Advisors. Typically, family offices are advisory firms that manage financial assets and investments of an affluent individual or family usually referred to as Ultra-High-Net-Worth investors and also advise on personal matters such as insurance, philanthropical charities, estate planning or tax services. The minimum amount for this set-up usually ranges around $250 million. The recent motivation for this trend seems to result mostly from hostile markets, regulatory considerations, investor pressures, and operational costs. But this trend has already been in place for almost a decade : since 2011, when the SEC adopted the “Family Office Rule” in result of Dodd-Frank. Since then, close to three dozen hedge funds have changed into family offices after returning their clients’ money, according to the Wall Street Journal. Unprincipled Investment Policies Family offices differ from hedge funds, and all seem to favor (i) a lower level of complexity of investment products, (ii) geographic proximity, (iii) the possibility of having a tangible influence on the investment, and (iv) near secrecy. For example, Bezos-Expeditions, the family office of Amazon’s founder Jeff Bezos, makes venture capital investments in seed, early, and late-stage startups from a wide range of sectors. Other Silicon Valley family offices are focusing on new tech (video and sensing, data center management, social media, data security) or also healthcare, SaaS, and financial services. Let’s not forget that these family strongholds are not subject to the investment (and liquidation) calendars of standard private equity funds. New York | London New Rules | JAN 2019 2 They are considered by some general partners as more reliable than an individual investor and more understanding than institutional LPs. But they may be also feared, as they do not have boundaries: they can opt for private debt or act as activist shareholders. Weakness to watch : complex regulation In 2011, the SEC adopted the “Family Office Rule” which excludes family offices from having to register with the SEC as an “investment adviser”. On the other hand, in case of a breach of the Family Office Rule the family office loses its favorable status and has to register with the SEC. The family office status is rather complex and requires strict vigilance in order to be maintained. The “Family Office Rule” has set the following requirements: the family office must (1) provide investment advice exclusively to “family clients”; (2) be wholly-owned by family clients and exclusively controlled by family members/family entities; and (3) not hold itself out to the public as an investment adviser. Exclusively limited to “Family Clients” The Family Office Rule is applicable to a large group of beneficiaries qualified as “Family Clients”, which is a notion including several different types of entities, such as “current” and “former” family members, or key employees, their companies as well as their estates, trusts and even charitable organizations as long as they are exclusively funded by one or more other family clients. The “family members” definition includes family members related through a common ancestor within 10 generations, as well as adopted, foster and step children and spouses and “spousal equivalents”, with a favorable status maintained even in case of divorce. A certain number of exclusions can result in the loss of the family office status in case of breach. For example, multi-family entities are excluded and so will be several single-family offices sharing the same staff. Also, in-laws cannot be included as family members. Finally, the notion of “Key employees” does not include : (i) employees performing solely clerical, secretarial, or administrative functions; and (ii) key employees of a family-owned operating company. Strict Ownership and Control Rules Any family client (including key employees) may hold an ownership interest in the family office, but control must be carried out exclusively by family members/family entities. “Control” means the power to exercise a controlling influence over the management or policies of a company. Therefore, special shareholders agreements with non-family members are excluded and boards without any family members will not satisfy the “exclusively controlled” standard. No Holding Out as Investment Adviser Last but not least : the family office must not hold itself out to the public as an investment adviser. For such purpose, family offices should have their legal counsel verify that non-advisory services (tax filing, accounting…) provided to non-family members can’t be requalified as advisory services. New York | London New Rules | JAN 2019 3 Compliance recommendation From a compliance perspective, family offices need to apply a strict vigilance on the following matters: (i) investment processing and oversight; (ii) ownership and governance: (iii) reputational risks ; (iv) privacy breaches; and (v) additional services provided to family clients Finally, being exempt from registration under the Advisers Act doesn’t exclude other regulations, such as the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940 and the Commodity Exchange Act. These laws can apply to such matters as client qualifications, product registration, transactional filings or public reporting. In addition, certain market-protective rules can apply to family offices, such as the anti-fraud provisions of the Securities Exchange Act of 1934 or insider trading restrictions. Family offices which are currently in compliance with the Family Office Rule must remain vigilant and have policies in place to avoid inadvertent disqualification from the exclusion. SEC Office of Compliance Inspections and For 2019, OCIE’s announcement included the Examinations Announces 2019 Examination followings details: Priorities Compliance and Risks in Critical Market The SEC’s Office of Compliance Inspections and Infrastructure – OCIE will concentrate on Examinations (OCIE) announced on December clearing agencies, national securities 20, 2018, its 2019 examination priorities. This exchanges, and transfer agents. year’s priorities will be digital assets, cybersecurity, and matters of importance to Retail Investors, Including Seniors and Those retail investors, including fees, expenses, and Saving for Retirement –Examinations will focus conflicts of interest. A focus will be maintained on fees and expenses charged to investors, and on “critical market infrastructure and Main the usual key players : representatives selling Street investors in 2019.” products, broker-dealers, portfolio management and trading. OCIE is responsible for conducting examinations of entities registered with the Cybersecurity – Cybersecurity will remain a key SEC, including more than 13,200 investment item, with an emphasis on “proper advisers, approximately 10,000 mutual funds configuration of network storage devices, and exchange traded funds, roughly 3,800 information security governance, and policies broker-dealers, about 330 transfer agents, and procedures related to retail trading seven active clearing agencies, 21 national information security”. securities exchanges, nearly 600 municipal advisors, FINRA, the MSRB, the Securities AML Programs – Examinations will concentrate Investor Protection Corporation, and the Public on the revising of AML procedures to comply Company Accounting Oversight Board, among with regulatory requirements. others.. New York | London New Rules | JAN 2019 4 EU prepares for a hard Brexit: temporary The plan covers financial services, air and measures are unveiled freight transport, customs, climate policy, and citizens. The European Commission disclosed, on December 19, 2018, a series of measures to Regarding financial services, these measures safeguard "vital interests" of the European are intended to mitigate financial stability risks Union in case of a “Hard-Brexit” (i.e. exit in areas where an action plan needs to be in without any Withdrawal Agreement). Within a place by the withdrawal date. Therefore, the hundred days of the Brexit, set for March 29, current EU plan presented temporary measures 2019, the 27 EU countries (the “EU27”) no intended to last between 12 to 24 months, longer seem to believe in any real ratification regarding Central clearing of derivatives, by the British Parliament of the “Withdrawal Central securities depositories and OTC Agreement” which was endorsed on November derivatives. Those measures should allow 25 with in Brussels. "The risks of a chaotic exit temporarily UK counterparties to keep by the United Kingdom of the European Union providing their services in the Union until are clear. It would be an absolute disaster, viable alternatives to UK operators are in place. "worried Wednesday the President of the Clients in the European Union of UK firms are European Commission, Jean-Claude Juncker. warned to prepare for a scenario in which their provider is no longer subject to EU law. Regarding financial services, the Commission stated that if the Withdrawal Agreement was Given the urgency of the situation, the not ratified, financial operators established in Commission, in a statement issued