The New CFTC Regulatory Regime for Private Fund Managers; First Quarter 2013 Update


The enactment of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) and its implementation by the Commodity Futures Trading Commission (“CFTC”) has ushered in a new era of regulation of managers of “private funds.”  Although not mandated by the Dodd-Frank Act, on April 24, 2012, the CFTC repealed CFTC Rule 4.13(a)(4), the exemption from registration as a “commodity pool operator” under the U.S. Commodity Exchange Act (“CEA”) commonly relied upon by managers of private funds.  The impact of this action is addressed in our Alert of August 27, 2012. 

This White Paper provides a survey of some of the most significant aspects of the new swaps regulatory regime mandated by the Dodd-Frank Act that directly impact private fund managers.  The CFTC has regulatory authority over “swaps,” the Securities and Exchange Commission (“SEC”) has regulatory authority over “security-based swaps,” and the CFTC and SEC share regulatory authority over “mixed swaps.”  For ease of presentation, this White Paper focuses on the regulatory actions of the CFTC, many of which have been taken in close coordination with the SEC.