Hedge fund managers: Summary and implications of new rules requiring SEC registration

Abstract

On October 26, 2004, the Securities and Exchange Commission (the “Commission” or the “SEC”) adopted a new rule and related amendments requiring, among other things, that hedge fund managers register with the SEC under the Investment Advisers Act of 1940, as amended (the “Advisers Act”) by February 1, 2006. In this article, we refer to the totality of the recent rulemaking as the “new rules.” The new rules and a lengthy interpretive release (the “Adopting Release”) were made available to the public on December 2, 2004.The new rules only slightly modify the text of the proposed rules published by the SEC on July 20, 2004. We will refer to the July 20, 2004 rules as the “proposed rules.” The proposed rules, which were opposed by two of the five SEC commissioners at the time they were announced, provoked a loud outcry and strong opposition. According to the Adopting Release, the SEC received 161 comment letters from investors, hedge fund managers, mutual fund managers, law firms, and others. Of these, only 36 supported the proposed rules, 83 argued against them, and the remainder presented a neutral view. The objections included “concerns about the costs of compliance under the new rule[s], questions about [SEC] effectiveness in preventing hedge fund fraud, and the potential intrusiveness of [SEC] oversight of hedge fund managers.”