If ever there was an argument for the advertising ban on Hedge Funds to be lifted it is this one. Over three years a brazen group of New York scam artists raised about $30 million from unsuspecting investors by posing as principals of a successful hedge fund and then fled with the loot.

Investments from $5,000 to $500,000 were obtained from college professors and educated professionals. It took the group a little more than three years, from early 2003 September 2006 to raise the $30 million.

A grand jury empaneled by Michael J. Garcia, the U.S. Attorney in Manhattan, is said to have handed up a sealed indictment in the case, according to a lawyer hired by 10 of the victims, who said that the FBI was investigating the matter.

The criminals are clearly to blame here, however, this is a problem that, in our opinion, is caused in part, by the regulators themselves.

There is a scam out there that is based on “Prime Bank Guarantees” or “Medium Term Notes” that has taken billions from investors with promises of astronomical returns. The SEC web site says:

“Lured by the promise of astronomical profits and the chance to be part of an exclusive, international investing program, investors are once again falling prey to bogus “prime bank” scams. These fraudulent schemes involve the purported issuance, trading, or use of so-called “prime” bank, “prime” European bank or “prime” world bank financial instruments, or other “high yield investment programs” (“HYIP”s). The fraud artists who promote these schemes often use the word “prime” ? or a synonymous phrase, such as “top fifty world banks” ? to cloak their programs with an air of legitimacy.”

The thing that allows the bogus ‘brokers’ and ‘investment managers’ of this fraud to operate is that they have created a veil of secrecy over the whole operation. The SEC says:

“Promoters claim that transactions must be kept strictly confidential by all parties, making client references unavailable. They may characterize the transactions as the best-kept secret in the banking industry, and assert that, if asked, bank and regulatory officials would deny knowledge of such instruments. Investors may be asked to sign nondisclosure agreements.”

This ‘secrecy’ is what perpetuates the fraud. Simply put, the peddlers of this scheme will tell you that when you do your research that you will find everyone denying the existence of the scheme. They will say that those not in the industry don’t know about it because there would be outrage that rich people could make so much money and those in the industry will deny it because they either aren’t high enough up or are trying to keep it a total secret. They will also tell you that a minimum investment of $10mn is the norm, but they have split up that $10mn to allow their investors in.

This secrecy is the perfect cover, and I speak from personal experience, 15 years ago as an investment pup, to my eternal shame, I got caught in a the same scam.

So we have an ‘investment’ that is supposed to be super secret, has a minimum investment and is not advertised anywhere. Do elements of this ring any bells?

Simply put, the regulators are perpetuating the ‘secrecy’ of hedge funds by not allowing advertisement of the funds. Their rules about only being able to invest a certain amount of money did not protect the people in this case who invested $5000, did it? Something tells me the scammers did not check to see what the net worth of the investors was either.

How would advertising funds have helped? As with everything, the fact that advertising is allowed generates an awareness of a particular industry. How many of you knew how to play poker before the online casinos plastered the web with advertising? My limit was ‘Snap’, now I am a stone cold poker shark.

By the very nature of advertising and, therefore, informative web sites, brochures etc etc, this kind of fraud would be more difficult to perpetrate because the veil of secrecy would be lifted for all to see.

Of course, there will always be criminal elements who will attempt to subvert whatever rules are out there but the regulators throughout the world don’t need to make it easy by perpetuating a secrecy myth that can be exploited by the criminal element.

WHAT ARE HEDGE FUNDS????

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In the securities world, the term “Hedge Fund” does not necessarily imply any use of “hedging” as commonly understood; for example where commodity traders use options to “hedge” a commodity position. Presently, in the securities world the term “hedge fund” refers to any type of Private Investment Company operating under certain exemptions from registration under the Securities Act of 1933 and the Investment Company Act of 1940. “Hedge Funds” are often referred to as “alternate investment vehicles” and are tailored to the needs of sophisticated, high net worth private investors. A Hedge Fund is generally structured as a limited partnership having a general partner responsible for the investment activities and day-to-day operation of the fund, and limited partners who are the investors supplying capital but not participating in trading or operations of the fund. The limited partners have limited liability. That is, their exposure to loss is limited to their investment. The General Partner has unlimited liability and is liable for the activities of the partnership. The General Partners principals limit their liability through the use of a corporation or limited liability company as the General Partner. (Of course, the principals cannot limit their liability from the application of the anti fraud provisions of the Federal Securities Laws.) All of the investors’ capital is pooled and is utilized by the General Partner or Investment Manager to implement its trading or investment strategy.

?Hedge Funds are “Non-Public Offerings.” The private offering exemption prohibits Hedge Funds from making any public offering. Therefore, Hedge Funds are prohibited from general advertising and generally secure investors through word of mouth, consultants, registered representatives, brokers or investment advisors. Hedge Funds have investors that are either “accredited investors” or “qualified purchasers.” In general, the Federal Securities Laws define the terms “accredited investor” and “qualified purchaser” in terms of minimum asset and income threshold that must be met before they qualify to be investors in the Hedge Fund. Since the Hedge Fund generally limits investment to “accredited investors” or “qualified purchasers” both of whom are required to meet certain minimal asset and/or income thresholds, the Fund Manager or administrator must gather background information on potential investors to determine whether they meet the minimum requirements to be “accredited investors” or “qualified purchasers.” By making a non-public offering to certain kinds of investors, (accredited investors or qualified purchasers) the investment vehicle will be exempt from registration requirements of The Securities Act of 1933 pursuant to the safe harbour provisions of Rule 506 of Regulation D. Where the investment vehicle is limited to no more than 100 investors, and otherwise complies with the safe harbour provisions of Regulation D, such an investment entity is exempt from the extensive regulation pursuant to Section 3(c)1 of The Investment Company Act. Section 3(c)7 of The Investment Company Act offers a similar exemption to private investment companies with “qualified purchasers” as investors.

As an unregulated entity, the Hedge Fund Investment Manager is free to undertake greater risk on more volatile positions thereby exposing investors to potential substantial profit as well as substantial losses.

?Typically, Hedge Funds provide for the payment of an Incentive Allocation or Performance Fee to the hedge Fund Manager/General Partner. Performance Fees range from 20% to 40% depending on the strategy employed by the Hedge Fund Manager. Typically, the Performance Fee provides for a “high water mark” structure which provides that incentive fees are paid only to the extent that the fund continues to meet or exceed the “high water mark.” Additionally, typical Hedge Funds include Management Fee of 1% to 2% of all assets under management.

?Generally there are two kinds of Hedge Funds. On the one hand, there are the huge worldwide funds operated by charismatic managers such as George Soros. On the other hand, there are small boutique-styled Hedge Funds identified with a particular segment or investment strategy. The Fund Manager’s expertise, experience and background in recognizing investment opportunity will dictate that fund’s particular niche. For example, there are the “Biotech Hedge Funds” which are managed by experienced and highly qualified investment managers who may also hold advanced degrees in science and medicine. There are “Tech Hedge Funds” specializing in the technology sector managed by individuals having specialized experience trading in that sector. With the emergence of day trading and the availability of the trading technology, a number of floor traders and brokers are leaving the traditional brokerage and exchange venue to participate in the computer screen trading phenomena.

?The boutique “Hedge Fund” typically relies on the particular skill and expertise of the Investment Manager or Trader. The highly specialized Investment Manager may utilize a “Sector” style of investing focusing on a particular industry or economic sector. Conversely, an Investment Manager utilizing a “Market Neutral” style will maintain a portfolio of securities which are generally ? short and ? long. Some Investment Managers utilize a “Value” investment style based upon assets, cash flow and book value; while other Investment Managers follow the “Emerging Markets” style and invest in emerging and foreign market equity and debt. “Trading” funds utilize an opportunistic investment style taking advantage of market trends, events and opportunities for short term profits. Each Fund Manager develops and uses a particular investment style that is unique to the experience, expertise and personality of its manager.

?Unlike Hedge Funds, Mutual Funds raise money publicly; are highly regulated by the Securities and Exchange Commission, the Internal Revenue Service and other agencies; and offer investment diversification and are restricted from purchasing many types of derivative instruments, leveraging, short selling and other kinds of transactions.

?Unlike the Mutual Fund Managers, the Hedge Fund Manager generally invests in the fund that they manage and participate in profits as well as risks with their investors. Unlike the Mutual Fund fee structure (which is determined on assets under management) the Hedge Fund Manager receives incentive allocations on performance.

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SPOT CURRENCY TRADING “FX” IS THE NEWEST AND FASTEST GROWING INVESTMENT VEHICLE IN THE HEDGE FUND INDUSTRY.?

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ForEx, hedge funds.?Registering with the Commodity Futures Trading Commission

Generally, the Commodity Futures Trading Commission has jurisdiction over transactions in ForEx futures and options contracts offered to retail customers, and the only counterparties that can lawfully enter into these contracts with retail customers on an off-exchange basis are persons that are: (i) registered with the Commission as a futures commission merchant (FCM); (ii) certain affiliates of a registered FCM;, or (iii) otherwise regulated, e.g., as a securities broker-dealer, a bank, a financial institution or an insurance company.

On May 22, 2008, the Congress passed the Farm Bill which, in Title XIII, contains several amendments to the Commodity Exchange Act involving the retail trading of foreign exchange.

Under the CFTC Reauthorization Act, a person operating pool solely trading spot ForEx is not required to register as a CPO at this time (but may be so required in the future upon promulgation of regulations by the CFTC).?

If?I?start up a Fund of Funds and allocate among equity?and futures funds what? kinds of registration issues do I need to be concerned with??

As a Fund of Funds you must be aware of each particular states Investment Advisor rules. Many states have exemptions from registration. Also if you intend to invest in futures or commodity funds, you should register with the National Futures Association (NFA) and the Commodity Futures Trading Commission (CFTC) as a Commodity Pool Operator (CPO). This?CPO’s?associated person?must successfully complete the NASD Series 3 examination.?

Must a finder be registered as a broker-dealer??

Generally, No.?Generally?a finder does not have to be registered as a broker-dealer if its finder’s activities are limited. A “broker” under the Securities Exchange Act of 1934 is “any person engaged in the business of effecting transactions in securities for the account of others.” The SEC staff has found activities such as (a) participating in presentations or negotiations, (b) making any recommendations concerning securities, (c) receiving transaction-based compensation, (d) structuring a transaction or making recommendations regarding the nature of the securities, whether to issue securities or to assess the value of securities sold, and (e) continuing involvement in sales of securities to trigger broker-dealer registration obligations.? However, a number of states, Texas and California for example, ?take the position that only a registered representative (broker) may receive kind of compensation.?

Are there any other types of finders available to issuers in a private placement??

Yes. Rule 3a4-1 provides a non-exclusive safe harbor from the definition of a broker for persons associated with an issuer who are engaged in securities-related activities incident to their duties on behalf of the issuer. See Securities Exchange Act Rel. No. 22172 (June 27, 1985). Employees and possibly individual affiliates of an issuer who are not registered representatives of broker-dealers may be considered “associated persons” for purposes of Rule 3a4-1, in which case they may be exempt from registration and will be permitted to engage in limited sales activities pursuant to the Rule’s safe harbor.?

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What is meant by the 25% limitation on ERISA assets investment in a Hedge Fund?

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The Departments of Labor Regulation defines the use of ERISA assets. ERISA Assets include self-employed persons, and individual retirement accounts in pooled investment vehicles. Section 403 (a) requires that generally all assets of an employee benefit plan shall be held in Trust by one or more Trustees. Section 3(21) defines a fiduciary to include any person who exercises discretionary authority or control over the management of Plan Assets. Section 404 provides that a fiduciary must discharge responsibilities in accordance with fiduciary standards of care as set forth in Section 404 (a) (1); that is, (a) solely in the interest of the participants and beneficiaries of the plan (b) with the care skill prudence and diligence under circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and would like aims; and (c) with respect to an investment of a Plan Asset, by diversifying the investments of the plan so as to minimize the risk of large losses.

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Section 406 also prohibits a fiduciary from causing a plan knowingly or negligently, to engage in prohibited transactions with “parties-in-interest.” A party-in-interest includes the plan sponsor a person providing services to the plan, a person in control of the plan sponsor, a person controlled by any of the forgoing or an employee, affiliate or relative of any of the forgoing. Section 4975 of the Internal Revenue Code imposes excise taxes on “prohibited transaction” the definition of which is similar to the definition of prohibited transactions under 406 of ERISA. Taxes range from 15% of the amount involved each year up to 100% of the amount involved if corrective action is not undertaken within a certain time period. Section 502 (1) of ERISA imposes upon a fiduciary a civil penalty equal to 20% of the amount received from such fiduciary as a result of a settlement agreement or judicial preceding involving a breech of fiduciary duty. Section 406 also prohibits a fiduciary from dealing with plan assets for his own interests or account, acting in any transaction in which his interest are adverse to those of the plan or receiving consideration for his personal account in connection with any transaction involving plan assets. Section 409 imposes personal liability upon a fiduciary who breeches his duties and responsibilities. Section 405 provides that a plan fiduciary may under certain circumstances be liable for a breech of fiduciary responsibility by a co-fiduciary or for improper delegation of investment authority. Section 412 requires that with certain exceptions a plan fiduciary shall be bonded. Section 403 (a) provides that the trustee shall have the exclusive authority and discretion to manage and control the assets of the plan unless the plan provides that the trustee is subject to the discretion of a named fiduciary or the authority is delegated to an investment manager who is either a bank, an insurance company, or registered as an investment advisor under the Investment Advisor Act 1940.

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If the assets of the fund are considered plan assets the trustee may have improperly delegated its investment authority unless the managers and general partners of the fund are either named fiduciaries of the ERISA Plan limited partners or properly appointed as an investment manager within the meaning of Section 3 (38) of ERISA. Moreover, unless the fund manager is a bank or insurance company, it must be registered as an investment advisor under the Investment Advisors Act of 1940 to serve as an ERISA Investment manager. Under the regulations, if a retirement plan purchases an equity interest in an entity, underlying assets will be considered plan assets unless (a) the equity interest is a publicly offered security; (b) the equity interest is a security of a registered investment company; (c) The entity is an operating company; or (d) Benefit plan ownership of equity securities is not significant. The underlying assets are not significant where such assets represent less than 25% of the value of the class of equity security of the entity. Thus, for a hedge fund, a significant benefit plan participation would be an investment of 25% or more by a benefit plan investor in the hedge fund.

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It is to be noted however, that only an equity investment in an entity can cause an underlying assets of that entity to be plan assets. The acquisition of debt instruments will generally not result in plan asset treatment

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ERISA plan

Not under Rule 501(a)(1). Rule 501(a)(1) accredits as ERISA plan that has a fiduciary which is a bank, insurance company or registered investment advisor, or that has total assets in excess of $5 million. The plan, however, may be an accredited investor under a different provision of Rule 501(a).

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