Offering Legal Advice & Services to Traders | Investors | Hedge Funds Hedge Fund Due Diligence
Capital Management Service Group, Inc. is dedicated to providing the highest quality of services on a personal level and in a timely manner. We offer flat-fee engagements, which include start-to-finish legal services and counsel with all aspects of launching a domestic or offshore hedge fund. No two funds are identical. We use a client-based approach to our fund structuring and analysis. Our clients routinely comment on the excellence of our personal service and the time we take to properly understand and implement the client’s unique circumstances and objectives. Call Us at +1 (307) 213-4732, Email Us and Read What Our Client Say About Us on LinkedIn
Due Diligence on My Hedge Fund? As a hedge fund manager, expect an inspection potential investors. You hope that your presentation of yourself and your trading track record will attract investors, but could your efforts be undermined by errors in your former employment or regulatory records? What would your past paper trail tell someone who does not know you? There is external information about you and you must make sure that it is correct. Put yourself under review. Find out how potential investors will see you by performing a "dry run"? Let us perform due diligence on you and then review the results. Why not use our professionals to investigate you and your hedge fund before "bad paper" turns investors away? Contact Us
New to Hedge Fund Management? As a new hedge fund, you may not have yet experienced a due diligence review. Understandably, you may feel daunted by the comprehensive nature of the due diligence process. By hiring qualified professionals, you can get a good look at what due diligence would produce on your background. Our third-party, objective due-diligence services, coupled with our industry-leading legal services, can help you get some perspective on your overall appeal as a hedge fund manager.
The Meaning of Due Diligence Due Diligence refers to a comprehensive investigation and/or audit of a potential investment that serves to confirm, as much as possible, all material facts in regard to a purchase or sale. Generally, due diligence refers to the care a reasonable person should take to obtain all the material facts before entering into an agreement or transaction with another party. Due diligence provides an investor some security in an otherwise risky environment. You can do little to control market forces, politics, regional instability, and global economic conditions when you invest. However, there is something you can do to keep from being a victim of deception: check the qualifications and background of a hedge fund manager before giving him your money. Fraud is often the reason a hedge fund goes under. As history shows, investors have all often entrusted their money to hedge fund managers who are irresponsible or even criminal. Before explaining how due diligence can reduce the risk of fraud, let's revisit a few common scenarios.
Hedge Fund Manager Covers up Losses In this situation, suppose that the hedge fund manager has a clean record. He is reputable and has set up the fund to industry standards, with all the appropriate documentation and disclosures. He accepts client funds and begins investing the capital responsibly, according to his duties. However, an over-leveraged trade or overly concentrated investment goes south. The hedge fund manager fears that if he dutifully reports such losses his investors will leave. So he devises a plan to earn the money back with future trades. Until such returns are realized, he will produce false financial statements. Of course, he has to use a higher leverage ratio because of the lower investment balance, and the trades are highly risky. They too, perform poorly. But because of the forged statements, you as an investor feel satisfied. Naturally, one would assume that a legitimate request for a withdrawal of funds would expose the cash-strapped operation. Not necessarily. Due to a false positive performance record, the hedge fund manager attracts new investors and simply pays a withdrawal request with new investors' money. Will you be holding the bag when the operation falls?
Hedge Fund Manager Supports Lavish Lifestyle with Investors' Money In this situation, a hedge fund manager with a shady financial past sets up a hedge fund based on a "stellar career" in the investing world. He sets up the fund according to industry standards and convinces investors that he can generate excellent returns. He never invests the funds, and instead he withdraws money for personal use, living a lavish lifestyle. Statements are faked to show positive earnings. The manager promises a strictly monitored and audited operation. However, the audits are never done or are done under an unknown auditor's name. Worse yet, the investors never ask for audited financials. Eventually, the fund is exposed. Hindsight reveals the shady past of the manager--the securities violations, bankruptcy, and open judgments. It turns out that the "stellar career" never existed as he simply worked entry-level positions and was fired. This is all easily revealed during the investigation and legal process that follows. Could you have avoided this? Need help? Contact Us
Hedge Fund Loses Large Percentage of Capital; Closes Operations In this final scenario, everything is handled in a generally legitimate manner. Statements are accurate and sent out in a timely fashion. The only problem is that they paint a gloomy picture. Investors receive informal promises and indications that the market is looking good, or that the strategy is expected to pan out. Instead, more money is lost, investors lose confidence and withdraw, and the fund closes operations. Most of your money has disappeared, and you have little or no legal recourse. You relied upon a colleague's advice as well as the fact that a well-known investor had a position in the fund. You had confidence in the manager from what you had heard, but later find out that the manager had little to prove that he could invest wisely. You learn, too late, that a significant percentage of all executives misrepresent accomplishments on their resumes. Often they omit various positions (as opposed to embellishing them). Sometimes they include a degree from an unaccredited on-line school. Could this have been found out before investing?
Investment Manager Is the investment manager registered as an investment adviser with SEC? If yes, review Form ADV. Review entire form and, in particular, look for number of personnel employed, number of clients, and funds under management. Also, look for whether any advisee clients are SEC registered investment companies or non registered funds, and whether the adviser has had problems with regulators, has other business activities, etc. Does the investment manager have conflicts of interest with the fund and does the manager have any controls in place to manage those conflicts? Is the investment manager registered with any state regulatory authority as an investment adviser? If so, review forms. If not registered as investment adviser with SEC, or state level, higher level of scrutiny required. Examine the investment manager's Articles of Organization and Certificates of Formation, jurisdiction of organization, location of office, and EIN letter from the IRS. Note that it is very rare for the investment manager of an onshore fund to be organized in a foreign jurisdiction.
Examine the Operating Agreement of the Investment Manager What licenses do individuals employed with the investment manager possess? Many management personnel possess a securities license, such as Series 7 (registered representative of a broker-dealer) because the manager is itself registered with the SEC as a broker-dealer. If individuals are investment advisers, they will be required to have the Series 65 or equivalent. What are the educational and professional credentials of the personnel? Verify credentials listed. What institutions of higher learning did they attend? Do they have a graduate degree in business or economics; sometimes, engineering, mathematics, medicine? Are they a CFA (Certified Financial Analyst) (the standard industry credential for professional investment managers?). What are the employment histories of the personnel? Were they employed at other hedge funds? If so, verify employment and review the history of those funds. Were they employed at major financial institutions, and, if so, in what capacity? Examine the investment manager's past performance. Obtain photo identification from the manager (driver's license, passport, etc.). Perform background checks on the manager and the principals of the manager. Useful places to look are Dun & Bradstreet report (credit check) and KnowX.com (background check with information on bankruptcies, liens, lawsuits, judgments, and UCC's). Be sure to obtain permission from each individual to run a background check. Check on court decisions against the manager and its principals. Get state and federal filings on the manager. Do a search on FACTIVA (Dow Jones news retrieval service) or similar service to obtain media articles about the manager and its principals. Get at least three references from the manager: inquire as to who the references are and conduct further due diligence.
Hedge Fund Due Diligence Is there a way to sniff out fraud before it is too late? The problem is that those who are good at deception know how to appear honest. Fortunately, there is a way to discover fraud. With expertise and access to records and information, you can uncover the past of a hedge fund manager. You can employ a background check firm, a private investigator, or perform your own record checks online. These tools may reveal information on the background of the hedge fund manager. But is that enough? Even honest hedge fund managers fail. And the signs of failure are often clear in advance. But these signs may not be clear to a general background check firm, to a private investigator, or to anyone who is not an expert on hedge funds.
This is where we come in. We are a well-known industry leader in the areas of hedge fund development, compliance, operations, and tax. We know how a hedge fund should be set up. We know who should be registered and with what authority. We know what hedge fund managers can and cannot do?and what they should be doing. To put it plainly, we are fully equipped and knowledgeable in every aspect of a hedge fund operation. We can provide you with a complete due diligence package that goes well beyond a simple background check. We know what to look for and can help you avoid large losses. We can help before you invest, or after. We know how to uncover inconsistencies that are signs of trouble. Hedge funds that turn into frauds cannot bear the scrutiny of our due diligence process. Your investment is too valuable to see it squandered by unsavory individuals. Due diligence is a small price to pay to avoid the substantial loss and suffering that can result from fraud. A little due diligence goes a long way. Contact Hedge Fund Attorney Hannah Terhune for Assistance
Organizational Issues What is the fund's mailing address? Physical address? If there are multiple addresses for the fund or if the fund shares an address or office space with another fund or another business or company, require an explanation and obtain document (written contract) that enables sharing.
Is the fund registered with the SEC? The state? Request a copy of Form D, as filed with SEC and relevant states. Verify the Form D or state regulatory equivalent filings in all states.
Is the fund domestic or offshore? If offshore, determine whether the manager and/or fund are subject to local regulatory oversight and, if so, obtain regulatory filings. Ask about the prime broker or other custodian(s), and administrator(s).
In what state is the fund organized? Most domestic funds are organized in Delaware, although some are organized in Nevada, and, occasionally, in another state.
What is the form of organization? Domestic funds are typically organized either as a limited partnership (in which the manager is the general partner and the investors are limited partners) or as a limited liability company in which the manager is the managing member and the investors are non-managing members). Obtain fund formation documents (e.g., Articles of Organization or Articles of Association). Request a State Certificate of Good Standing from the fund. This may also be obtained from the state of formation. Contact the state to verify the certificate’s status, and request that the certificate be mailed directly to you.
Is the fund reputable? Find out where the funds and securities are kept. If not New York, London, or some other major financial center, this may be a warning sign. Inquire about the lawyers and the accountants; there is a limited universe of professionals in each offshore jurisdiction, and use of professionals who are not well-known raises concerns.
Operational Concerns What are the terms of the Fund; performance fees, withdrawal restrictions? Does the manager have the right to more than 20% of the profits regardless of performance? If so, think twice about investing. Does the manager's right to profits require that it first exceed a stated return to the investors (termed a hurdle rate)? If not, think twice about investing.
Does the agreement have a high water mark? If not, it is probably inadvisable to invest since this may indicate unfairness on the part of the manager.
Is it a fund of funds? If so, there are special considerations; the most important of which concerns fees and compensation to the two levels of managers. Obtain a copy of the Investment Advisory Agreement between the fund and the investment adviser. Verify that it conforms to the stated purpose in the fund's Offering Memorandum.
Does the agreement permit an investor to withdraw all or part of its capital? If so, on what conditions must the investor give written notice (such as 90 days or 180 days), and how often in each year can an investor withdraw? Industry standards vary. In some cases, withdrawal four times a year is permitted, in other cases, only on December 31, after giving notice 90 days in advance. If the agreement contains very restrictive withdrawal rights, think twice about investing.
Does the fund have an Engagement Letter with an attorney on file? Obtain a copy and contact the attorney to verify the client relationship.
Does the fund have an Engagement Letter with an auditor on file? Obtain a copy and verify the client relationship. Obtain copies of the last three years audited financial statements directly from the auditor. Do not accept copies provided by fund. Review them to see whether they agree with what the manager has represented to be the fund's results. Obtain copies of filed tax returns for last two years directly from the fund's accounting firm. Do not accept summaries provided by the fund. Tax returns should include schedules and statements (except Schedule K-1, which discloses each investor's position in the fund). Compare results to audited financials, and reconcile tax results with financials (through unrealized gain/loss). Determine whether for tax purposes the fund is treated as a trader in securities (favorable treatment) or as an investor (unfavorable treatment). If the fund is a fund of funds, does the manager issue its financials and timely tax returns, or are there extensions?
What are the strategies employed by each of the sub-managers in the investee funds, and are they sufficiently diversified to spread risk? Obtain performance reports for the past 5 years. If the PPM gives statistical history, review this and compare to audited financials. If the manager provides historical results, ask if the results follow AIMR (industry association) guidelines.
Does the fund report far superior results to other funds in its investment strategy group? If so, ask for an explanation since there have been a number of frauds involving purportedly excellent results that ran counter to prevailing trends. Review the fund's Offering Memorandum. If there is a Form ADV (there will be if the manager is a registered investment adviser), compare the Form ADV to the PPM and to the one on the FINRA website.
Who are the prime brokers or other custodians for the fund? It is common for a hedge fund to have one or more prime brokers, who track the investments and custody the funds. Use of a prime broker is a positive indication. However, if the fund invests in commodities, that part of the investing cannot be done through a prime broker. Also, very large funds ($500 million and up) do not use a prime broker because it is not cost effective.
Capital Management Service Group, Inc. is dedicated to providing the highest quality of services on a personal level and in a timely manner. We offer flat-fee engagements, which include start-to-finish legal services and counsel with all aspects of launching a domestic or offshore hedge fund. No two funds are identical. We use a client-based approach to our fund structuring and analysis. Our clients routinely comment on the excellence of our personal service and the time we take to properly understand and implement the client’s unique circumstances and objectives. Call Us at +1(307) 413-2212, Email Usand Read What Our Client Say About Us on LinkedIn
Call Us First We are experts in international hedge funds and tax. Click on any reference below to our leading articles:
Strategic Hedge Fund Planning by Hannah Terhune. Wilmott Magazine Ltd. (Volume 2013, Issue 63, pages 8-11 January 2013).
Trading Foreign Index Contracts? Know the Tax Rules Before You Trade by Hannah M. Terhune and Roger D. Lorence. Stocks, Futures and Options (June 2005).
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