The Hedge Fund Law Report

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By Topic: Release Letters

  • From Vol. 5 No.39 (Oct. 11, 2012)

    Release Letters: Key Provisions of Concern for Hedge Fund Managers

    In the course of performing due diligence on a potential investment, hedge fund managers often require access to expert reports or similar work product prepared by advisors engaged by third parties.  These third parties engage financial and other advisors to produce various memoranda and other due diligence materials in connection with anticipated investments.  For their part, the advisors generally provide their work product solely to the parties who engaged them to produce this work product with whom the advisors have a direct contractual relationship and who have accepted their standard terms and conditions.  Hedge fund managers, seeking to obtain the information contained in such expert reports for purposes of investment analysis in relation to the underlying assets or securities, but not being “clients” of the advisor for the purpose of the engagement, must sign a so-called “release letter” in order to obtain access to this work product.  These release letters are prepared primarily for the benefit of the advisor who produced the work product to be shared with “non-clients” (such as hedge fund managers or other investors or lenders) on a limited basis.  The release letters’ principal purpose is to exclude, or at least minimize, legal liability of the advisor as a result of the work product being used by such “non-client” third parties.  As such, release letters typically contain a number of important provisions, restrictions and negotiating points of which hedge fund managers should be aware.  In a guest article, William Frenkel, a Partner at Frenkel Sukhman LLP, identifies those provisions and provides guidance to hedge fund managers on how to negotiate them.

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