Fraud - Will Hedge Funds Produce The Next Really Big One?

Fraud - Will Hedge Funds Produce The Next Really Big One?

Article by R W Cuthill Jr

For thousands of years investment advisors have been asking investors to give them money so they could invest it for them. Even after Charles Ponzi in the 1920’s, investors have continued to give investment advisors money to invest. The mutual fund industry has been the largest vehicle, but is highly regulated and has produced few frauds. Unregulated investment schemes, such as PONZI schemes and its brother, pyramid schemes, have been the most prolific types of investment fund frauds. Hedge funds could be the next significant vehicle. Hedge funds have gained in popularity to a staggering investment amount of over $2 trillion, according to the SEC. Over 2,400 investment advisors have registered 11,500 hedge funds with the SEC this year.

So why would hedge funds produce the next really big fraud? According to the Association of Certified Fraud Examiners and Financial Accounting Standards Board, the environment for fraud includes three factors, “incentives/pressures, opportunities, and attitude/rationalization.” The hedge fund manager certainly has the pressure from his investors to produce results. He also has an unregulated environment to work in producing the opportunity. Additionally the high risk/high reward attitude of the manager makes him more likely to take the risk of defrauding his investors.

A quick review of the SEC litigation releases in the past year shows increased activity against hedge funds, including: altering audited financial statements, concealing losses, creating a fictitious auditor, insider trading, market timing (mutual funds), misappropriation, misrepresentation to investors, non-disclosure to the SEC, and stock manipulation. These frauds were not limited to small or offshore funds, but included funds with hundreds of millions of dollars operating throughout the US. Are these all of the frauds occurring? No, but these are simply the ones which the SEC has litigated against. No one knows in this unregulated environment how many frauds are occurring today.

Since hedge funds are still a popular investment vehicle, how can an investor protect against these frauds? Like any investment, the investor must do due diligence before investing in a fund. The investor should review the funds offering materials, investment objectives, audited financial statements, background of investment advisors and other documentation provided by the fund. He should verify the size of the portfolio with the fund’s custodian. He should check the background of the personnel of the investment advisor working on the fund. He should check for regulatory action against the investment advisor and its personnel. He should evaluate the ability of the outside auditor. He should determine who prepares the periodic financial statements provided investors and whether there is third-party oversight. He should determine if the fund has registered with the SEC. He should check with others in the industry that have knowledge about the fund.

After the investment is made the investor’s due diligence should not stop. Many of the documented hedge fund frauds have not started in the beginning of the fund, but after the investors became comfortable. The investment advisors continue to be pressured to produce results or lose their investors. The investor should continue to review the reports sent to him by the fund. He should verify the size of the portfolio with the custodian on a periodic basis. He should watch for changes in auditors and other third parties. He should be alert for any regulator action against the fund or its advisors. He should not let the early withdrawal penalties deter him from withdrawing at the first sign of trouble. In most of the documented cases, there is little left, after discovery of the fraud and the litigation to recover from the fraudsters and third parties.

The answer is that some hedge funds are defrauding their investors while they are not more closely regulated. With the increasing popularity and size of some of these unregulated funds, one of these may be the next really big fraud. Don’t be the investor caught in it!

Mr. Cuthill's practice is limited to court-appointed positions in large fraud cases. His work has produced the return of millions of dollars of investors' funds. For more information about him go to http://trusteeandexaminerCuthill.com/.