ProFundCom has released this article to relay vital information about the recent Alternative Investment Fund Managers Directive (AIFMD). Please read this article as failure to comply with the directive could lead to claims for civil law damages, tax consequences and, in exceptional cases, criminal penalties.
We have also set up an AIFMD Manager on the ProFundCom AppStore to help with compliance – more on that later.
The directive contains complex regulations governing marketing and email marketing carried out by fund managers with interests in alternative investment funds (AIFs). In the UK, US and Europe these regulations will operate alongside and sometimes overlap with the local jurisdictions regarding financial promotions, so it is essential that you take on board and understand the implications for you.
No guidance has been issued by the FCA or ESMA (European Securities and Markets Authority) on the meaning of marketing and email marketing. However, some useful guidance can be found in the FCA’s final policy statement and perimeter guidance, which confirms the following:
The AIFMD does not restrict professional investors who wish to invest in AIFs on their own initiative. If the offer or placement is made at the initiative of the investor, namely if there is “reverse solicitation” or passive marketing, then this activity is not marketing. Confirmation from the investor that the offering or placement was made on their own initiative should normally be sufficient to demonstrate this, provided that the confirmation is obtained before the offer or placement takes place. Email marketing will not be included in passive marketing as it has by its nature an element of coercion.
Whilst the FCA believes that sending draft documents (including promotional presentations or pathfinder versions of a private placement memorandum) is not marketing, it has reserved position on this until the EU provides guidance. This is only affects draft documents and does not include approved documents like fact sheets and weekly and monthly NAVs as well as promotional material.
The listing of an AIF is not in itself considered marketing, however the activity undertaken leading to a listing may be.
Invitation to offer
An invitation to an investor to make an offer to subscribe for the investment, will be treated as an offer. This includes indirect offers – situations in which the manager distributes units or shares or information of an AIF through an intermediary or directly.
Permission and confirmation
Fund managers need to be fully compliant with the AIFMD to manage and market AIFs.
What this means to asset managers and hedge fund managers is that for any email activity the recipient must be an opted-in to the mailing list and have given express permission and confirmation to receive documentation, which may include offer and placement related information. Your confirmation data also needs to be auditable.
At ProFundCom we have responded quickly to the AIFMD by setting up the AIFMD Manager on the ProFundCom AppStore. This allows you to check your mailing lists for compliance and also checks each email before it is sent to see if the recipient has provided confirmation. If the recipient has provided confirmation then the email is delivered, if not an email will be sent requesting confirmation. Only when confirmation is received will the original email be delivered. This email confirmation and process is protected by an encrypted digital signature to ensure complete authentication.
Please contact us directly if you have any doubts or questions about ensuring compliance,. We want to ensure you are fully protected.