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Upcoming SlideShare. Like this document? Why not share! Embed Size px. Start on. Show related SlideShares at end. WordPress Shortcode. Published in: Business. Full Name Comment goes here. Are you sure you want to Yes No. Be the first to like this. No Downloads. Views Total views. Actions Shares. Embeds 0 No embeds. No notes for slide. There has been much news recently with regards to high profile hedge fund insider trading cases such as Raj Rajaratnams Galleon. As there seems to be a-Term of the Month: Audit Holdback continuing strong interest from the government in prosecuting insider trading, investors may be increasingly asking themselves what they can do to minimize,- Fraud Spotlight: The Preposterous or perhaps even completely reduce, their exposure to hedge funds that eitherFraud of Andrey C.
Hicks and Locust may be accused of insider trading, or even worse guilty of it. Offshore Management Before we can answer this question however, it is first useful to make sure we- Accounting Spotlight: Interpreting understand what is meant by insider trading. To boil it down to its most simpleFund Expense Disclosures form, insider trading relates to people utilizing so-called "insider" information- On the Calendar Information, often referred to be the acronym MNPI, and how the analyst obtained this information. Therefore, the question could b had a duty to disclose it be posed, what are investors supposed to do?
Of course there are a number of nuanced complexities The answer lies in understanding the nature of thewhen it comes to analyzing the actual insider trading control environment surrounding both the investmentlaws themselves. An example of this is whether the so- research process, as well as a funds ability to act oncalled duty to disclose was pro-actively requested by research obtained. But, how should an investor gothe person obtaining the information or instead was about assessing this environment?
Detailed operationalimposed upon them.
However, such legal intricacies are due diligence can provide a number of valuable insightsof little use to investors seeking to evaluate the overall in this regards. Step 1: Determine research sourcesOne of the big problems with insider tradingprosecutions from an One area which an investor caninvestors and fund evaluate during the operationalmanagers perspective, is due diligence process relates tothat it is an area in which firstly understanding the ways inany bright line rules that which a hedge funds analystsmay have existed are now conduct research.
In particular,seemingly in flux. Recent what research sources do theylegal decisions have utilize? Do they primarily readseemingly increased the industry journals and go onscope of the type of Bloomberg? What about attendinginformation that is now conferences? Do the analystsconsidered illegal to trade perhaps meet with theupon. Do they talk to analysts at other hedge funds? What about analystsAdditionally, insider trading is inherently in particular sectors at other firms outside of the hedgecounterintuitive in some regards to what hedge funds fund industry? Are third-party expert networks utilized?
Insider trading rules, it Step 2: Evaluate research oversightcan be argued, stymie the efforts of analysts to collectthis information. It stands to reason that a hedge fund After an investor makes a determination as to whatanalyst may be able to devote more time to collecting research sources a hedge fund utilizes, the next step isresearch, and be more skilled at it, then let us say a to determine what actions the fund is taking to monitorregular retail investor.
Is this insider trading for the such relationships. This oversight can come in a numberhedge fund analyst to act on this better information? January 3Insider Trading - Continued from page After a hedge and insider trading to the third-party network? One comply with these policies? In general, securities on the restricted list cannot be obtained from the compliance function first?
In addition to determining whether or perform before granting pre-approval? Is there set a disclaimer before the call begins criteria or does one person make the determination in their discretion? How is it monitored and implemented? Additionally, a hedge restricted list for their own personal securities fund with robust oversight of the research and trading accounts? After taking measures to evaluate any internal hedge Conclusion:fund oversight on the way in which a hedge fundcollects research and then trades on that data, are In conclusion, investors that take the time to askinvestors finished?
Investors be accused of insider trading - that is as long asshould take measures to ensure that the hedge funds continue to follow thesenot only does a hedge fund have policies. Similarly, it is important for hedge funds to back testsuch policies. So for example, assume that a hedge fund Planningmaintains a restricted list. Does the hedge fund US based hedge funds recently faced a large scale realmanagers compliance department perform random world test of their business continuity and disasterback test audits of fund trading to check that no trading recovery plans in the form of a super storm namedin restricted names occurred?
Hurricane Sandy represented a large unprecedented weather event that caused flooding andSo what does this all mean? Hedge funds, like all Some of the challenges faced by people and businesses,organizations are evolving entities.
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Employees come including hedge funds, affected by the storm includedand go. New funds are launched and closed. Revised sustained power outages, inability to access officecomputer systems are put in place and old ones are buildings and office flooding. January 5Business Continuity- Continued from page Is backup equipment available in the equity GPs to report to regulators more detailed interim? Under these rules, which during the storm? This data includes revealing the identity storm?
Investors should ask such questions both of the hedgefunds with which they maintain existing investments as …continued on next page www. For example, a GP may point out that RAUM may be misleading to someThe enhanced US regulatory disclosure requirements investors because it includes unfunded LP commitmentsare not anomalous, and the European Union has also in its calculation whereas a typical AUM figure generallyfollowed suit in the form of the Alternative Investment does not. Although the final text of the law is should not be interested in during the operational duestill under review, AIFMD level 2 imposes a number of diligence process.
Examples of these the data from increased GP transparency? Now diligence data such as regulatory filings, but also tothat GPs have devoted all the time and resources to provide a guide in understanding such documentation. Most GPs have predictably raised a number of Although enhanced transparency may seem to beobjections to sharing this data.
January 7Private Equity - Continued from page Additionally, many hedge funds may utilize certain consultants on an ad-hoc or as needed basis and therefore, perhaps dont feel highlighting suchincreased data analysis and resource management relationships matters much to investors performingchallenges which should be planned for. Without such operational due diligence. Investors should not be discouraged however, and should take measures to evaluate the role ofEvaluating Hedge information technology consultants.
A good starting point is speaking directly with the hedge fund managersFund Technology about the use of such consultants. Learning what consultants do:Consultants There are diagnostic benefits to such third-party provider due diligence. By inquiring about these third- party firms, investors will likely learn about the dutiesIt is common for many hedge fund managers, especially performed by different information technologysmaller ones, to leverage off of external information consultants.
The answers to these questions cantechnology consultants. These consultants come in provide valuable insights into a number of differentmany different forms and can provide a wide array of areas including:services for fund managers. If support so, why? During the operational due diligence process, investorsmay sometimes find it difficult to obtain a straight After an investor has obtained a detailed understandinganswer from their hedge fund managers with regards to of what a third-party information technology consultantthe work of these information technology consultants.
Some questionsdedicated in-house information technology personnel be they dedicated or shared while minimizing the …continued on next page www. The short list of the common blindly? For there any testing of such controls? When a hedge Another motivation for many investors in clusteringfund effectively opens up its doors to a third-party firm their service provider evaluations around a limitedto assist in managing or improving upon this technology subset of all a hedge funds service providers, is theinvestors should take notice.
By incorporating an notion of a risk based approach. Continuing ouranalysis of the role of third-party information valuation example above, many investors viewtechnology consultants into the larger operational due valuation as not only a highly important issue for hedgediligence process investors may learn new pieces of funds, but also one that is fraught with potential risk asinformation, which can provide valuable insights into well.
That is to say, there would be direct negativetheir overall assessment of a hedge funds information implications for investors if a hedge fund began playingtechnology function. Such a risk may be compared to, for example, the risks associated with a hedge fund utilizing a slightly less than cutting edge piece of hardware for data storage. This legislation addressed a number of areas concerning ethical conduct by business organizations and individuals, including but not limited to consumer protection, credit ratings agencies, regulation of financial products, corporate governance, executive compensation, financial stability, transparency and whistleblower protection.
State Laws. Many but not all of areas of federal regulation are also subject to regulation by state governments too. One of these is securities regulation. While understanding individual laws is important to designing ethical systems, equally important for these purposes are various phenomena concerning how laws are applied. As described below, many of these phenomena would seem to enhance the deterrent force of at least some of the laws in question and thus play an important role in promoting ethical behavior although there are different views on whether this is desirable, i. On the other hand, some of these phenomena clearly have the opposite effect.
Some business-crime related laws are drafted very broadly, meaning that relatively harmless as well as genuinely harmful conduct could be the basis for prosecution under them, although the extent to which the government in fact files charges in cases of the former is not clear. The laws that have traditionally been the principal focus of concerns about being overly broad are the mail and wire fraud statute, although more recently much attention of this sort has been directed at the FCPA and, to a lesser extent, the False Claims Act.
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Sivachenko, I. Zelcer, A. Winkler, R. While liability of this sort is not limited to business crimes, the circumstances in which many such crimes occur—which often involve low- or mid-level employees of a business organization being instructed by a superior to engage in conduct that is part of an offense—lends itself to prosecutions of this nature.
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Nerlich, V. Criminal intent is not always required for prosecution. Arguably this means that an individual can be prosecuted even if she did not engage in conduct that would be traditionally seen as morally blameworthy. This seems unfair to many people; but on the other hand, as with many of the phenomena discussed on this page, this does tend to promote strong internal compliance measures. Leibman, A. Cohen, J. Copland, J. Foerschler, A.
Liability of a corporation or other business organization can be based on the misconduct of a single employee or agent. Particularly for large organizations, where it is virtually inevitable as a statistical matter that over the course of time some employee will commit a crime, this approach strikes some observers as unfair and perhaps a cause of over-deterrence —although it does have the beneficial approach of encouraging strong compliance measures.
Brickey, K. Baris, J. Keatinge et al The impact of being prosecuted is potentially very high, which can lead to, on the one hand, greater compliance measures, and on the other, unfairness and economic waste. The high costs of prosecution affect both prosecuted individuals and business organizations, both of which are covered by the Sentencing Guidelines. The Sentencing Guidelines can dictate long prison terms in business crime cases sometimes.
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Pavlo, W. However, individuals can often avoid long prison terms by cooperating with the government in the prosecution of others—a practice which is both necessary for law enforcement purposes but which can lead to results that often seem unfair. There seems to be a trend toward increasingly large fines for convicted business organizations.
Other factors that increase the cost to business people and organizations of prosecutions:. Liability to private parties can be imposed in addition to criminal or regulatory penalties, and for some offenses this can result in treble damages. Prosecutions by more than one sovereign. Although the US Constitution prohibits double jeopardy, overlapping prosecutions by more than one sovereign e.
There is a recent trend toward this in anti-corruption enforcement. Avon apparently had spent a similar amount on FCPA investigation as well. Each of the above-described laws and legal phenomena—particularly when combined with the others—support a need by business people and organizations operating in the US to be cautious with respect to conduct covered by the relevant laws.
A Comparative Analysis of Insider Trading Regulation: New Zealand, Australia and the European Union
As noted above, in the eyes of some commentators these laws and legal phenomena lead to an excessive degree of cautiousness. But there are also reasons to believe that the current system does not go far enough in preventing and detecting business-related crimes. For example:.