End Is Sought to Ban on Hedge Fund Advertising
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WASHINGTON — The hedge fund manager who successfully sued the Securities and Exchange Commission to stop what he deemed a burdensome regulation on the industry is now eyeing a First Amendment lawsuit to lift a ban on the advertising of hedge funds.
Phillip Goldstein’s plans have won praise from industry officials who have long wanted more freedom to advertise their funds, but others have responded more warily, fearful of added regulations that could come with any change in the law.
A successful challenge of the restriction could have a far-reaching impact on how hedge funds operate, officials say, and it could help shed light on an industry that is often described as shadowy and secretive.
Because they are defined as private offerings, hedge funds are prohibited from engaging in “any form of general solicitation or general advertising” under the Securities Act of 1933. The SEC has interpreted the ban to include publicly available, unrestricted Web sites.
The founder of Bulldog Investors, Mr. Goldstein, 63, was forced to take down his company’s Web site after the state of Massachusetts sued him for operating an open site in violation of the law.
Mr. Goldstein is now seeking an explicit assurance from the staff of the SEC that it would not push for a penalty against Bulldog Investors if it operated an open Web site. The site would not allow users to make direct transactions, he said, nor would the company accept investments from customers who are not prequalified. The company’s minimum investment is generally $500,000, he said.
If the SEC refuses, Mr. Goldstein says he’ll take his case to court, challenging the restriction on First Amendment grounds. As long as the accreditation rules are in place for investments, he will argue, preventing hedge funds from publishing basic information and product descriptions on a Web site constitutes an infringement on free speech.
“What’s the big deal?” he said in a telephone interview. “It’s not like we’re putting up plans to make an atom bomb.”
The advertising restrictions are aimed at protecting investors from being misled into risky deals. Hedge funds, Mr. Goldstein argues, should be treated more like pharmaceutical companies, which are allowed to promote drugs even if consumers must secure a doctor’s prescription to buy them.
“It’s a hell of a lot easier to get on pornography sites than hedge funds,” he said.
He said his company has had communications with the SEC, but he declined to describe the talks. “We’re in discussions to try to resolve this without litigation,” Mr. Goldstein said. “Whether we can reach a mutually acceptable resolution, I don’t know. But I’m somewhat optimistic that we can.”
A spokesman for the SEC declined to comment.
Most hedge fund Web sites offer only limited information, and investments throughout the estimated $1.9 trillion industry are often made through a process that begins by word-of-mouth.
An SEC staff report in 2003 urged relaxing the restrictions, saying “there seems to be little compelling policy justification” for an advertising ban on funds sold only to “qualified purchasers.” But the recommendation went nowhere.
The Managed Funds Association, a trade group that represents about 1,600 industry members, has long supported a loosening of the policy. “We look at it as a transparency issue,” the association’s senior legal counsel, Benjamin Allensworth, said. “One of the big reasons hedge funds don’t talk about themselves is this prohibition on general solicitation.”
Yet the prospect of a change in the advertising rule has also brought fears that more regulation could follow, including calls for requiring more hedge fund managers to register as investment advisers with the SEC.
“By opening that box a little bit, potentially you’re opening Pandora’s box,” said David Friedland, the president of the Hedge Fund Association, another industry group. He added that the association had not formally taken a position on proposals to change the advertising ban.
Mr. Goldstein gained prominence in 2006 when he successfully sued the SEC after the commission approved a rule requiring many hedge fund managers to register. A court decided in favor of Mr. Goldstein, overturning the mandate.
With its emphasis on the First Amendment, his latest challenge could have similar repercussions, experts said. “Depending on what the SEC says, this could have an impact well beyond hedge funds,” a senior fellow at the American Enterprise Institute, Peter Wallison, said.
The case could effect hedge funds even if Mr. Goldstein does not bring a lawsuit, Mr. Allensworth said. If the SEC gives him a detailed assurance for his Web site, through what’s known as a “no action” letter, other fund managers would likely tailor their own sites to the specifications detailed in the notice.