On June 8, 2012 the SEC's Division of Investment Management issued an initial set of frequently asked questions (FAQs) related to the filing of Form PF on the PFRD (Private Fund Reporting Depository). Investment advisers registered with the SEC and their related persons (including commodity pool operators and commodity trading advisers required to register as investment advisers) who manage one or more private funds with assets under management (AUM) of at least $150 million are required to file Form PF. The requirement came into effect last year with the SEC's unanimous adoption of Rule 204(b)-1 under the Advisers Act (see this helpful article published by JLG last year on Form PF). Under the rule, private fund advisers' reporting obligations vary based on the type of private fund managed and the adviser's AUM. The topics covered by the new FAQs include:
- Aggregation requirements for determining reporting status. The FAQ on aggregation clarifies that advisers with parallel managed accounts ( i.e., a managed account that pursues substantially the same investment objective and strategy, and invests side by side in the same positions, as the private fund) should count the assets towards their AUM only if the parallel managed account is dependent on the private fund. A parallel managed account is dependent only if its value is less than the value of the private fund.
- Timeframe for reporting when AUM or fund characteristics reach reporting thresholds. The FAQ explains that a private fund should be reported as a hedge fund for the particular quarter if it meets the definition of hedge fund on the last day of any month in the fiscal quarter immediately proceeding the fund's most recently completed fiscal quarter. In other words, a fund with a fiscal year end of December 31st should be characterized as a hedge fund on September 30th if it met the definition on the last day of April, May or June.
- Categorizations of funds for reporting purposes. This FAQ makes clear that if a private fund's offering documents allow the fund to employ leverage or sell assets short, it must be characterized as a hedge fund - even if the fund does not actually employ such tactics.
The FAQs address fairly high level issues, disappointing some industry members who had been seeking more detailed guidance from the agency. The SEC has indicated it intends to release a second set of FAQs with further detail, but no timeline has been announced. For additional information about how to fulfill your Form PF obligations, or any other securities law concern, please contact us at (619) 298-2880.