Providing a full range of legal needs for those involved in the alternative investment and investment management industries, the attorneys of Ulmer & Berne LLP are highly skilled in private offerings, due diligence investigations, acquisition and disposition of portfolio companies and other investments, regulatory compliance and counseling, regulatory investigations, enforcement proceedings, arbitrations and litigation. The diverse backgrounds of our attorneys, which include former SEC enforcement lawyers, registered investment representatives, and the general counsel of a hedge fund, enable us to effectively counsel and represent a diverse and dynamic client base, including hedge, private equity and real estate investment funds, investment advisers, commodity pool operators (CPOs), commodity trading advisors (CTAs), proprietary trading firms, onshore funds, and offshore funds.
Formation and Private Offerings
Our attorneys also serve as counsel to several large institutional and family-office investors. These clients rely on us to perform due diligence investigations of potential investments and negotiate limited partnership and side letter agreements for their investments into hedge, private equity and real estate funds. As a result, our attorneys understand current trends in the alternative investment industry from both the sponsor and limited partner perspectives.
Our experience and expertise enables us to devise the optimal legal structure for investment advisers and funds. We can help create effective offering memoranda, fund documents and investment adviser agreements, in addition to marketing and subscription materials. Ulmer & Berne’s attorneys also counsel fund and investment adviser clients regarding pertinent SEC, CFTC and other regulatory considerations, and otherwise guide them through the offering or sales process. On the investor side, our attorneys often assist fund-of-funds, pension funds and other institutional investors in performing due diligence reviews of potential allocations to alternative-investment vehicles, as well as negotiating the limited partnership and side letter agreements with such vehicles.
Our services in the formation and private offering areas include:
• Structuring offshore and onshore alternative investment funds
• Structuring side pocket investments
• Forming commodity pools and registering commodity pool operators
• Creating proprietary trading firms and trading arcades
• Devising tax-efficient fund structures
• Counseling regarding sales and marketing activities
• Counseling concerning SEC regulations, exemptions and safe harbors
• Counseling regarding CFTC and NFA regulations and exemptions
• Proactive guidance concerning risk-management
• Creating comprehensive fund documents and offering memoranda
• Due diligence services for institutional investors
• Advising with respect to Blue Sky laws and state securities regulations
Transactional Practice
Our transactional practice draws upon the expertise of a skilled group of transaction attorneys to accomplish our clients’ merger and acquisition (M&A) goals. From initial conceptualization, to value creation and successful fruition, to exit strategies and dispositions, our attorneys work closely with clients on all aspects of the transaction.
They knowledgeably assist clients in:
• Identifying opportunities and developing tailored strategies for varied and sophisticated transactions, including: M&A; stock or asset purchases; debt financing and convertible debt; leveraged buyouts, tender offers and proxy contests; joint ventures and strategic alliances; distressed and bankrupt company transactions; private transactions; acquisitions of minority interests; poison pills and anti-takeover counseling; exit strategies and dispositions; recapitalizations; employee stock ownership plans; and asset monetization.
• Conducting due diligence
• Creative deal structuring and tax planning
• Arranging and consummating transaction financing
• Providing corporate governance and special committee counseling
• Negotiating and drafting clear, thorough transaction agreements and documents
• Coordinating local or special counsel (nationally and internationally)
• Building frameworks for compliance with tax and securities laws and other regulations
• Closing the transaction and providing advice and resources for future development
Our transaction team is multidisciplinary, often engaging several members of the Firm’s key practice areas (business, tax, banking and finance, securities, employee benefits/ERISA, labor and employment, environmental, real estate and intellectual property, among others) to advise our clients on the complex issues that encompass today’s mergers and acquisitions.
Regulatory Compliance and General Counsel Services
Ulmer & Berne’s attorneys serve as outside general counsel for fund advisers and investment managers that rely on us for practical, timely advice regarding day-to-day legal and compliance issues. Our attorneys understand the increasingly complex regulatory environment facing our clients. We counsel and advise clients concerning problems as they arise, but we also work with you to develop manuals, policies and procedures designed to prevent problems before they arise.
Our services in the regulatory compliance and general day-to-day counseling area include:
• Assisting with regulatory audits and inspections
• Assisting with investor communications and relations
• Creating electronic document retention, review and destruction programs
• Reviewing for conflicts of interest (including soft-dollar reviews)
• Advice regarding use of Web sites for investor relations
• Advice regarding valuation policies and issues
• Registration and licensing assistance
• Creating anti-money laundering programs and procedures
• Creating programs to eliminate selective disclosure issues
• Advice regarding placement-agent issues (including advice concerning the issuer and finder exemptions from broker-dealer registration)
Regulatory Investigations and Proceedings
Our attorneys understand that the initiation of an investigation or filing of an enforcement action by a regulator can severely damage a fund’s or adviser’s business reputation and disrupt operations. We have successfully defended clients in the full range of regulatory proceedings, including proceedings before the SEC, CFTC, NASD, NYSE, state attorney generals, and state securities agencies. We are skilled at defending every stage of these regulatory proceedings, including informal inquiries, formal investigations, “Wells Notice” activities, administrative proceedings, civil trials and appeals. We have also assisted clients with internal investigations of fraud and other misconduct.
We have defended clients, as well as conducted internal investigations, in cases that involve a vast array of subjects, including:
• Charges of market manipulation in the securities and futures markets
• Registration and private placement issues
• Insider trading allegations
• Excessive markups and markdowns
• Failure to execute trades consistent with investment strategy or standing orders
• Failure to supervise
• Market timing and international stock arbitrage
Business Disputes
Ulmer & Berne’s attorneys are skilled at successfully resolving disputes between our fund clients and their investors, prime brokers and other business contacts. We have helped clients cope with periods of excessive draw downs and the flood of redemption requests that can sometimes follow. We are skilled at devising investor relation and communication strategies that can help a strong fund or adviser survive a temporary market reversal. We also provide our fund clients with skilled representation concerning a myriad of other business disputes, including disputes with employees, prime brokers, placement agents, and others.
Our services for clients in the business dispute area include counseling and advocacy concerning the following issues:
• Prime-broker fraud and misconduct
• Misappropriation of trade secrets
• Restrictive-covenant disputes (e.g., non-solicit, non-disclosure, and non-compete agreements)
• Group hiring or “raiding” cases
• Separation and employment matters
• Asset valuation disputes
• Selective-disclosure allegations
• Redemption, withdrawal, lockup and gating disputes
Litigation and Arbitration
Clients can take advantage of our considerable courtroom experience in addition to our in-depth knowledge pertaining to a variety of different industries. We have represented clients in connection with a wide range of litigation and arbitration matters involving hedge funds, as well as concurrent enforcement actions and internal investigations.
Our attorneys have prosecuted and defended clients on a number of cases involving issues related to hedge funds, including:
• Redemption, withdrawal, lockup and gating disputes
• Exercise of discretion
• Selective disclosure matters
• Non-reliance clauses
• Valuation of hard-to-value and illiquid securities
• Investor communications regarding financial statements and performance metrics
• Breach of fiduciary duty claims
• Fraudulent inducement and scheme liability
• Investment Adviser, Commodity Trader, and Commodity Pool fraud
• Insider trading
• Improper short selling in violation of Regulation M and Regulation SHO
• Control Person, failure to supervise, and aider and abettor liability
• Market timing
• Blue Sky and common law securities fraud