When investors are upset about poor
fund performance, illiquidity, insufficient, inaccurate or untimely disclosures, or inconsistent or unfair treatment, they can, and frequently do, reach
out to their lawyers, the SEC [Securities
and Exchange Commission] and Congress.
Smart Business asked Scott Meyers, a litigation partner and chair of the Litigation
Practice Group at Levenfeld Pearlstein,
LLC, about potential legal pitfalls for hedge
fund managers and how to sidestep them.
How can poor performance turn into a legal
liability for hedge fund managers?
Investors may blame the investment
manager for failing to insulate them from a
general market event or improperly managing the investments. Sustained subpar
performance that causes many investors to
attempt to exit the fund can trigger a liquidity crisis as the fund must then sell
assets to generate cash for the redemptions. Not only can such a fire sale further
downgrade the fund’s performance — as
assets are sold at distressed prices — but
also, the funds will frequently restrict or
prohibit the investors’ ability to redeem
their interests and exit the fund. This creates further investor dissatisfaction, often
motivating them to take legal action to
force the fund to return their money.
Spending time and money defending lawsuits and managing investor problems can
significantly distract fund managers and
further erode fund performance. This
‘death spiral’ commonly results in the eventual liquidation of the hedge fund.
What legal problems can result from organizational documents?
There are three basic types of potential
problems: (1) not doing what the documents require, (2) doing what the documents prohibit and (3) unreasonably exercising the discretion the documents allow.
Most hedge fund organizational documents provide the managers with broad
discretion, but there are always certain
manager requirements, like providing periodic reporting to investors. Failure to take
required actions or engaging in prohibited actions provides investors with an easy
legal claim for breach of contract and/or
breach of fiduciary duty. But the most common area of concern is the investment
managers’ exercise of their discretion,
which is limited by constraints in the fund
documents and by applicable law. Because
many of these contractual, statutory and
common law limitations are unclear, a
manager may believe he or she is following
the terms of the organizational documents
to the letter and acting with the best of
intentions, but the investors may have a
different perspective and seek to hold the
manager accountable for perceived misconduct. This is particularly problematic
when decisions have a disparate impact on
different classes of investors.
What disputes can result from communication issues like misrepresentation and failure
to disclose?
There are three common problems in this
area: misrepresentations — telling a lie,
omissions — failing to tell the whole truth
and selective disclosure — disclosing
material information to some but not all
investors. The law generally requires
investor communications to provide full, fair and accurate disclosure of all information that a reasonable investor would want
to know to make an informed investment
decision. Regarding selective disclosure,
many state laws impose fiduciary obligations on investment managers so they cannot discriminate against or among the individual investors. Some hedge funds, however, expressly disclaim this duty in their
operating documents and PPM [private
placement memorandum].
How can hedge fund managers avoid these
liability issues?
- Review the operating documents and
PPM, and update them to provide maximum discretion, broad indemnification
and comprehensive risk disclosures. - Read and follow the operating agreements — do what’s required and avoid
what’s prohibited. - Manage your investors’ expectations
— advise them of upcoming material
events, both good and bad, and avoid surprises. - Address investors’ questions and concerns on a timely basis while avoiding
selective disclosure — monthly newsletters, telephone conferences and electronic
town-hall meetings can be very effective. - Where possible, avoid suspending
redemptions and NAV [net asset value] calculations. - Don’t keep unhappy investors in the
fund — try to accommodate redemption
and withdrawal requests to the extent possible without compromising the integrity of
the fund. - Be consistent with your accounting
and valuation methodology, and disclose
any material changes. - Follow your documents and be consistent in exercising discretion.
- Avoid even the perception of impropriety.
- Don’t lie.
SCOTT MEYERS is a litigation partner and chair of the Litigation
Practice Group at Levenfeld Pearlstein, LLC. Reach him at (312)
476-7576 or [email protected].