ERIC S. WAGNER

PARTNER

Eric Wagner is the chair of Kleinberg Kaplan’s Corporate Department. Eric advises both start-up and seasoned private investment funds, SEC registered investment advisors, family offices, commodity pool operators and commodity trading advisors on regulatory and strategic issues related to their formation, operation and investments.

Practices

About

Eric has extensive experience in structuring management company ownership agreements and seed capital arrangements, as well as advising clients with respect to executive and employee compensation (on both the manager and employee sides), and general securities matters.

Eric has been named a Leading Lawyer for Investment Funds: Hedge Funds by IFLR1000 – The Guide to the World’s Leading Financial Law Firms.

Education

New York University School of Law (J.D., 1995)

New York University Review of Law & Social Change, Staff Editor
Cornell University (B.S., 1992)

Bar Admissions

2019, Supreme Court of the United States

1997, New York

 

Speaking Engagements

Regulation Update and Impact: What’s in Store?

Speaker, Private Investment Fund Tax and Accounting Forum, Financial Research Associates, November 2019

ABA/IBA International Conference on Private Investment Funds, March 2016

Maples Investment Funds Forum, February 2011, February 2013 and February 2016

KPMG Seminar on Hedge Fund Startups, October 2014

Alpha Hedge East Conference, February 2013

J.P. Morgan Seminar on “Managing Your Hedge Fund Business in an Effective and Compliant Manner, June 2011

UBS Prime Brokerage CFO/COO Conference, September 2006, October 2007, April 2010

Goldman Sachs Prime Brokerage Conference, May 2009

Banc of America Prime Brokerage Services Sixth Annual Southwest CFO/COO Summit, May 2008

GAIM USA Hedge Fund Conference, January 2006

Foundation for Accounting Education Investment Partnership Conference, 2004 and 2005

Insights

Helping Clients Navigate COVID-19 (Updating)

August 18, 2020,

Kleinberg Kaplan is working closely with our clients to provide counsel and guidance during these unprecedented times. A selection of our recent thought leadership pieces related to the implications of COVID-19 includes: Corporate Considerations  The PPP Just Got Better (June 10, 2020): Chris Davis, Dov Kleiner, Uri Rosenwasser and Benjamin Goldman discuss the key highlights of the…

OCIE Risk Alert – Observations from Examinations of Private Fund Advisers

July 22, 2020

On June 23, 2020, the staff of the Office of Compliance Inspections and Examinations (“OCIE”) of the U.S. Securities and Exchange Commission (the “SEC”) issued a risk alert (the “Risk Alert”) that provides an overview of certain compliance issues and deficiencies that OCIE has observed in recent examinations of registered investment advisers that manage private…

SEC Sets LIBOR Transition Preparedness as an Examination Initiative

July 21, 2020

The LIBOR transition encompasses far-ranging legal issues that impact the investment management industry, including the potential impact on trading and derivatives portfolios, fund performance targets within fund documentation, financing and brokerage arrangements, and a wide range of operational and other issues that need to be considered by managers. Background LIBOR (London Interbank Offered Rate) is…

Kleinberg Kaplan Praised as ‘Wall Street’s best-kept secret’ in Latest Edition of The Legal 500: United States

June 23, 2020,

Premier boutique law firm Kleinberg Kaplan was recognized in the latest edition of The Legal 500: United States for its Investment Funds practice. The firm’s work on behalf of the world’s leading hedge funds and alternative investment funds was praised as “Wall Street’s best-kept secret.” Client testimonials lauded the “impressive” capabilities of the group’s lawyers and…

Kleinberg Kaplan represents Mittleman in its completed merger with Aimia

June 22, 2020

Kleinberg Kaplan is pleased to have represented Mittleman Brothers, LLC in its completed merger with Aimia Inc. (AIM). This represents another in a recent string of Canadian public company transactions and activism engagements handled by our firm. Kleinberg Kaplan attorneys advising Mittleman included partners Christopher P. Davis and Eric Wagner and associate Alex Shiekman (Corporate), partner…

CFTC Proposes Rule Amendments to Expand Exemptions for Non-U.S. Commodity Pool Operators

June 9, 2020

On May 28, 2020, the Commodity Futures Trading Commission (“CFTC”) approved proposed amendments to CFTC Regulation 3.10(c), which currently provides a jurisdictional based registration exemption for non-U.S. commodity pool operators (“CPOs”) that operate non-U.S. funds with non-U.S. investors (the “Proposed Amendments”). Historically, the CPO registration exemption available under Regulation 3.10(c)(3) has presented challenges for non-U.S.…

Fed Announces More Updates to TALF 2.0 and New List of FAQs

May 13, 2020

On May 12, 2020, the Federal Reserve Board (the “Fed”) updated its term sheet of the Term Asset-Backed Loan Facility (“TALF 2.0”) that it authorized on March 23, 2020 and updated on April 9, 2020. The full updated term sheet can be found here. The Fed also released a list of frequently asked questions (“FAQs”)…

Fed Updates Terms of TALF 2.0

April 10, 2020

On April 9, 2020, the Federal Reserve Board (the “Fed”) updated its term sheet of the Term Asset-Backed Loan Facility (“TALF 2.0”) that it authorized on March 23, 2020. The key changes include: updates to the definition of eligible borrower, additions to the types of eligible collateral, changes to loan pricing, and the release of…

COVID-19: Temporary Form ADV and Form PF Relief Period Extended to June 30, 2020

April 2, 2020

On March 25, 2020, the U.S. Securities and Exchange Commission (“SEC”) issued an exemptive order (the “Updated Order”1) expanding the temporary regulatory relief from certain Form ADV and Form PF requirements previously granted under its March 13, 2020 exemptive order (the “Original Order”) to investment advisers whose operations may be disrupted by the outbreak of…

TALF 2.0: Fed Revives Term Asset-Backed Loan Facility

April 1, 2020

On March 23, 2020, the Federal Reserve Board (the “Fed”) authorized the revival of its Term Asset-Backed Loan Facility (“TALF 2.0”) previously established following the 2008 financial crisis. TALF 2.0 is a credit facility intended to support the asset-backed securities (“ABS”) markets for consumers and businesses by creating a new source of stable funding for investors…

CFTC and NFA Extend CPO/CTA Filing Deadlines for Certain Filing and Reporting Requirements

March 24, 2020

On March 20, 2020, the Commodity Futures Trading Commission (the “CFTC”) provided temporary no-action relief to registered commodity pool operators (“CPOs”) by extending the filing timeline for certain ongoing reporting/filing obligations. The CFTC’s no-action letter provides an extension for the following:(i) filing Form CPO-PQR under Regulation 4.27, (ii) submitting pool annual reports under Regulations 4.7(b)(3)…

SEC Grants Temporary Relief to Investment Advisers Impacted by COVID-19

March 23, 2020

On March 13, 2020, the U.S. Securities and Exchange Commission (“SEC”) issued an exemptive order (the “Order” [1]) granting conditional relief from certain Form ADV and Form PF requirements to investment advisers whose operations may be disrupted by the outbreak of the COVID-19 virus. In addition, on March 16, 2020, the staff of the SEC’s…

CFTC Extends Initial Margin Compliance Timeline for Many Buy-Side Firms

March 20, 2020

On March 18, 2020, the Commodity Futures Trading Commission (the “CFTC”) voted unanimously to extend the uncleared swap initial margin compliance timeline for financial entities with smaller swap portfolios from September 1, 2020 to September 1, 2021. Phase 6 Compliance Group The newly created “Phase 6” compliance group will provide many private funds and other…

Buy-Side Checklist for Potential Impacts on Counterparty Trading Arrangements

March 18, 2020

With the increasing concerns surrounding the impact of COVID-19 around the world, global financial markets are facing a unique set of difficulties. Fund managers, family offices and other buy-side market participants should consider reviewing their counterparty trading and brokerage arrangements to understand the impact of these events on their trading portfolios and their counterparties. Below…

Amendments to FINRA’s New Issues Rules Alerts

February 11, 2020

On January 1, 2020, amendments to the Financial Industry Regulatory Authority, Inc. (“FINRA“) Rule 5130 (Restrictions on the Purchase and Sale of Initial Equity Public Offerings) and Rule 5131 (New Issue Allocations and Distributions) came into effect [1]. Per the U.S. Securities and Exchange Commission (“SEC“), the rule changes “exempt additional persons and offerings, modify…

CFTC Simplifies Rules for Asset Managers

January 6, 2020

Recently, the U.S. Commodity Futures Trading Commission (the “CFTC”) approved amendments to Regulations 4.5, 4.7, 4.13, 4.14, and 4.27 that will impact investment managers that are operating funds that fall within the definition of a commodity pool. These new regulations will take effect on January 9, 2020.[1] Some key highlights of the amendments include: •…

NFA Implements New Testing Requirements for Swap Associated Persons

December 3, 2019

Beginning January 31, 2021, all swap associated persons and their supervisors (“APs”) will be required to satisfy the National Futures Association’s (the “NFA”) new swaps proficiency requirements. These requirements will apply to, among others, APs of investment managers registered with the NFA as commodity pool operators (“CPOs”) or commodity trading advisors (“CTAs”) that engage in…

SEC OCIE Issues Guidance on Investment Advisers’ Recordkeeping Requirements for Electronic Messaging

January 15, 2019,

On December 14, 2018, the Office of Compliance Inspections and Examinations (“OCIE“) of the Securities and Exchange Commission (the “SEC“) issued a risk alert (the “Risk Alert“)[1] to remind SEC-registered investment advisers (“RIAs“) of their obligations when their personnel use electronic messaging, such as text messages, instant messaging, personal email or messaging apps, and to…

Investment Adviser Compliance Issues Related to the Cash Solicitation Rule

December 18, 2018,

On October 31, 2018, the staff in the Office of Compliance Inspections and Examinations (the “Staff”) of the U.S. Securities and Exchange Commission (the “SEC”) issued a risk alert (the “Risk Alert”)[1] describing some of the most common deficiencies the Staff has cited relating to Rule 206(4)-3 (the “Cash Solicitation Rule”) under the Investment Advisers…

Update: NFA Releases Effective Date(s) for Interpretive Notice Establishing Disclosure Requirements for Registered CPOs/CTAs Engaging in Virtual Currency Activities

August 16, 2018,

On July 20, 2018, the National Futures Association (“NFA”) issued an interpretive notice (the “Interpretive Notice”) detailing new disclosure requirements for registered commodity pool operators (“CPOs”) and commodity trading advisors (“CTAs”) to address certain risks stemming from the recent growth of the virtual currency and virtual currency derivatives markets.[1] On August 9, 2018, the NFA issued…

NFA Issues New Disclosure Requirements for Registered CPOs/CTAs Engaging in Virtual Currency Activities

August 7, 2018,

On July 20, 2018, the National Futures Association (“NFA”) issued new disclosure requirements for registered commodity pool operators (“CPOs”) and commodity trading advisors (“CTAs”) to address certain risks stemming from the recent growth of the virtual currency and virtual currency derivatives markets. The new requirements will require, among other things, CPOs and CTAs trading in…

NFA to Develop Swap Testing Program

June 14, 2018,

On June 5, 2018, the Board of the National Futures Association (NFA) approved the development of a proficiency requirements program for “associated persons” (APs) of registered commodity pool operators (CPOs) and commodity trading advisors (CTAs) engaged in swaps activities. The proficiency program will be in the form of an online learning program with an embedded…

Advertising Rule Compliance Issues Most Frequently Identified by the SEC in Investment Adviser Exams

October 31, 2017,

Background On September 14, 2017, the staff of the Office of Compliance Inspections and Examinations (“OCIE“) of the Securities and Exchange Commission (the “SEC“) issued a risk alert (the “Risk Alert“)[1] regarding the most frequently identified compliance issues related to SEC-registered investment adviser (“RIA“) compliance with Rule 206(4)-1 (the “Advertising Rule“) under the Investment Advisers…

CFTC Modernizes Recordkeeping Requirements

July 14, 2017,

Overview The U.S. Commodity Futures Trading Commission (CFTC) recently adopted amendments to CFTC Regulation 1.31 (Final Rule), which governs the recordkeeping obligations for any person required by the Commodity Exchange Act (CEA) or CFTC regulations to maintain such records, including registered commodity pool operators and commodity trading advisors. While the Final Rule amendments do not…

SEC Announces 2017 Examination Priorities

February 1, 2017,

On January 12th, the Office of Compliance Inspections and Examinations (“OCIE“) of the Securities and Exchange Commission (the “SEC“) announced its 2017 examination priorities for registered investment advisers.[1] OCIE grouped the priorities into three general thematic areas: protecting retail investors, focusing on senior investors and retirement investments, and assessing market-wide risks. OCIE notes that the…

SEC Announces Examinations of RIAs for Whistleblower Rule Compliance

November 9, 2016,

On October 24, 2016, the staff in the Office of Compliance Inspections and Examinations (the “Staff“) of the U.S. Securities and Exchange Commission (the “SEC“) issued a risk alert announcing that it is examining registered investment advisers (“RIAs“) and registered broker-dealers for compliance with Rule 21F-17 under the Securities Exchange Act of 1934, as amended…

Amendments to Form ADV and Investment Advisers Act Rules

September 29, 2016,

On August 25, 2016, the Securities and Exchange Commission (the “SEC“) adopted amendments to Form ADV and to certain rules promulgated under the Investment Advisers Act of 1940, as amended (the “Advisers Act“).[1] The effective date of these amendments is October 31, 2016, but the compliance date is not until October 1, 2017, and many…

SEC Proposes Business Continuity and Transition Plan Rule for Investment Advisers

August 22, 2016,

On June 28, 2016, the Securities and Exchange Commission (the “SEC“) proposed a new rule (the “Proposed Rule“) that would require SEC-registered investment advisers (“RIAs”) to adopt and implement written business continuity and transition plans (“Continuity Plans“) reasonably designed to address operational and other risks related to a significant disruption in the RIA’s operations.[1] Additionally,…

SEC Announces 2016 Examination Priorities

February 10, 2016,

On January 11, 2016, the Office of Compliance Inspections and Examinations (“OCIE”) of the Securities and Exchange Commission (the “SEC”) announced its 2016 examination priorities for registered entities.[1] OCIE grouped the priorities into the same three general thematic areas as in 2015: protecting retail investors, assessing market-wide risks and using data analytics to identify potential…

Cybersecurity Update: NFA Adopts Guidance Regarding Information Systems Security Programs

January 27, 2016,

The Commodity Futures Trading Commission recently approved the National Futures Association’s (“NFA“) Interpretive Notice requiring NFA member firms to adopt and enforce written policies and procedures to secure customer data and access to their electronic systems (the “Guidance“).[1] The Guidance will become effective on March 1, 2016, and applies to all NFA membership categories, including…

Considerations for Year-End Certifications Concerning Employee Personal Securities Accounts

December 14, 2015,

Introduction As another calendar year comes to a close, SEC-registered investment advisers once again will collect personal securities reports and certifications of compliance with their Codes of Ethics from their “access persons”[1]. Many advisers allow their access persons to take advantage of a reporting exception for accounts over which the access persons have no direct…

Form BE-10 Filing Deadline Approaches for U.S. Persons with Direct Foreign Investments

May 19, 2015,

Every five years, the Bureau of Economic Analysis (“BEA”) of the U.S. Department of Commerce conducts a comprehensive Benchmark Survey of U.S. Direct Investment Abroad (“Form BE-10” or “Survey”). Every “U.S. Person” that owns or controls a “Foreign Affiliate” during such U.S. Person’s 2014 fiscal year must file Form BE-10 by May 29, 2015 (or…

SEC Announces 2015 Examination Priorities

January 20, 2015

On January 13, the Securities and Exchange Commission (the “SEC”) announced 2015 examination priorities for registered entities.[1]  The SEC groups the priorities into three general thematic areas: protecting retail investors, assessing market-wide risks and using data analytics to identify potential wrongdoing.  The SEC notes that the list of priorities is not exhaustive and priorities may…

SEC Charges Nearly Three Dozen Insiders for Delinquent Schedule 13D/13G and Form 4 Filings

October 21, 2014

On September 10, 2014, the Securities and Exchange Commission (“SEC”) announced charges against 28 officers, directors or major shareholders for delinquent Schedule 13D/13G and/or Form 41 filings in violation of federal securities laws requiring them to promptly report information about their holdings and transactions in company stock. The SEC also charged six publicly-traded companies for…

CFTC Issues Exemptive Relief for Funds Using General Solicitation Pursuant to SEC Rule

October 9, 2014

In a long-awaited action, on September 9th the Division of Swap Dealer and Intermediary Oversight of the Commodities Futures Trading Commission (“CFTC”) issued an exemptive letter providing relief for private investment funds using general solicitation pursuant to Securities and Exchange Commission (“SEC”) Rule 506(c). Rule 506(c), which was issued last year pursuant to the Jumpstart…

Felons and Bad Actors Prohibited From Using the Rule 506 Exemption

July 9, 2013

On July 10, 2013, the Securities and Exchange Commission approved final rules that disqualify securities offerings from relying on the safe harbor provided by Rule 506 of Regulation D under the Securities Act of 1933 if certain felons or other bad actors are involved in the offering. The rules were required by Section 926 of…

SEC Sets Parameters of Family Office Exemption from Advisers Act Registration

July 11, 2011

The Securities and Exchange Commission (the “SEC”) has adopted a new rule, defining the term “family office” for purposes of exempting family offices from registration under the Investment Advisers Act of 1940, as amended (the “Advisers Act”). Rule 202(a)(11)(G)-1, and Release No. 1A-3220. In adopting the final Rule, the SEC considered approximately 90 comment letters,…

SEC Expected to Consider Postponing Investment Adviser Registration Deadline to First Quarter 2012

April 10, 2011

In a letter to the president of the North American Securities Administrators Association, the Associate Director of the U.S. Securities and Exchange Commission (the “Commission”) Division of Investment Management, Robert E. Plaze, stated that although the Commission’s staff anticipates that the implementing rulemaking under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank…

SEC Adopts Amendments to Part 2 of Form ADV

January 24, 2011

The Securities and Exchange Commission (the “SEC”) adopted amendments (the “Amendments”) to Part 2 of Form ADV (commonly referred to as the “brochure” and currently designated Part II of Form ADV).1 The Amendments are intended to provide advisory clients with clearly written, meaningful, current disclosure of the business practices, conflicts of interest and background of…