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Form PF gets into PE's business

by Ira Teinowitz  |  Published November 11, 2011 at 12:30 PM

111411 rules.jpgIt might not become as ubiquitous as Internal Revenue Service Form 1040, but for investment fund advisers the government's new Form PF is about to become a similarly unwelcome ritual.

Final publication of the form -- "PF" stands for "private fund" -- announced Oct. 31 by the Securities and Exchange Commission and the Commodity Futures Trading Commission, formally kicked off the Dodd-Frank Act's new requirement that private fund advisers disclose to the government more about their businesses. The new 43-page form must be filled out starting next year and applies to advisers of hedge funds, private equity funds, money market funds and liquidity funds.

Advisers are now required to spell out information about the liquidity, counterparty exposure, type of investment and some other details of the funds that they manage.

Government officials see access to information about investment fund activities as key to providing the new interagency Financial Stability Oversight Council with the ability to comprehensively assess systemwide economic linkages and any risks the funds may pose. One of the major criticisms of government agencies during the 2008 market meltdown was that they had insufficient information about those ties and thus were blind-sided when problems in one sector of the financial industry ricocheted to others.

The SEC and the CFTC initially proposed wider reporting requirements but narrowed the final obligations in terms of which advisers have to file and how often. Hedge fund advisers still must file quarterly, but private equity and money market fund advisers will have to file only yearly. Regulators also gave advisers more time at the end of a reporting period to file.

Attorneys for advisers and for associations say that those steps may not provide much relief.

"You are going from an environment where customers and prime brokers didn't have to tell anybody what you are doing," says Henry D. Kahn, a partner at Hogan Lovells US LLP who specializes in regulatory law. He says the requirement is going to force advisers to provide "a heck of a lot of information."

An irony, Kahn suggests, is that because the government provided additional time to file, the information could be outdated. "It could be of limited utility," he says.

Maurine Bartlett of Cadwalader, Wickersham & Taft LLP suggests the biggest impact could be the considerable time and effort needed to pull the information together. She notes the agencies in the final rule substantially raised their estimate of the time it could take for a hedge fund adviser to complete it: to 610 man-hours during the first three years, up from 460. "It is quite burdensome," Bartlett says. "It's going to take a significant amount of time."

Less clear yet is exactly how difficult gathering the required information will prove to be.

The Managed Funds Association in a statement expressed disappointment the data mandate hadn't been narrowed. "MFA is disappointed that the commission was not able to focus the scope of the form to a more targeted set of data points that we believe are most essential to measure and monitor systemic risk, and would have been consistent with the metrics of regulators around the world," says the statement.

Industry officials also say one big concern remaining is whether the CFTC, which must issue two more forms for dual registrants and others, will compound the confusion by issuing dissimilar definitions. An additional worry is how the information will be used.

Regulators appeared pleased with the requirements and in statements suggested the information is vital to uncovering possible threats.

"Regulators will gain transparency into an important sector of the financial marketplace to better assess risk to the overall system," says CFTC Chairman Gary Gensler.

Adds SEC Chairwoman Mary Schapiro: "The data collection form that we have adopted will address the dramatic lack of private fund information available to regulators today while easing the burden on private fund managers producing the data."

Ira Teinowitz covers financial regulation for The Deal magazine.

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Tags: Cadwalader Wickersham & Taft LLP | CFTC | Commodity Futures Trading Commission | counterparty exposure | Dodd-Frank | Financial Stability Oversight Council | Gary Gensler | Henry D. Kahn | Hogan Lovells US LLP | Managed Funds Association | Mary Schapiro | Maurine Bartlett | Revenue Service Form 1040 | SEC | Securities and Exchange Commission
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