Private Investment Funds

Winston represents fund sponsors in the structuring and formation of private investment funds in nearly all strategies. Our team includes attorneys nationwide who have extensive knowledge of the full range of issues involved in fund formation and ongoing operational and compliance matters, and unique perspectives on the current fundraising climate and market terms. Additionally, our experience representing both sponsors and institutional investor clients provides our team with the ability to understand issues of focus for investors and gives us an edge in crafting solutions that work for all fund partners.

Our attorneys also have extensive experience working with Small Business Investment Companies (SBICs). We work with funds through the formation, offering, operations and investments, and wind-down stages. In addition, we counsel funds seeking SBIC licenses throughout the entire licensing process and advise them on SBIC regulatory compliance matters throughout their lifecycles. We also represent limited partners making investments into SBIC funds. SBICs serve a vital role in today’s economy by providing essential equity and loan financing to both new and established small businesses.

We review annually a significant number of fund investments for institutional investors, including the review, negotiation, diligence and structuring of such investments. Our attorneys regularly advise institutional investors on market terms and relevant securities, tax, partnership, fiduciary, ERISA, and documentation issues. Our diligence with respect to private fund documentation typically includes the review and negotiation of limited partnership agreements, side letters, fund management agreements and related agreements.

We counsel private funds, investment advisers, investment companies and separately managed accounts on structuring, organization, distribution, and SEC regulatory issues, including responses to SEC examinations.

We regularly advise clients on the establishment of new advisory businesses (including formation and registration with appropriate regulatory authorities), development of compliance policies and procedures and performing compliance reviews.

We provide ongoing regulatory advice with respect to, and innovative solutions to issues arising under, among others, the Investment Company Act, the Investment Advisers Act, the Commodity Exchange Act, ERISA, tax, and broker-dealer/FINRA regulations.

We have represented institutional investors and managers as both purchasers and sellers in secondary market transactions. We have worked on numerous transactions ranging in size from the purchase or sale of a single private fund interest to the sale of several hundred fund interests. We work closely with clients through each phase of the secondary transaction process, from auction processes, purchase and sale negotiations, transfer documentation and discussions with fund general partners, and finally assisting with the coordination of closing. In addition, we represent our private equity fund sponsor clients in connection with negotiation of fund transfer documentation related to transfers by their limited partners.

Winston represents sponsor clients on fund restructurings, tender offers, single-asset funds, continuation vehicles, and other GP-led liquidity transactions. We have also represented new and existing limited partners in their review of hundreds of GP-led liquidity transactions. Our work with sponsors encompasses all stages of a GP-led secondary transaction, including initial structuring and development of deal terms, preparation of documents and negotiations with existing and secondary investors, and management of the consent and election process.

We regularly represent clients in connection with their co-investment programs and the negotiation of investment documentation with deal sponsors. We have also worked with lead sponsors on structuring and negotiating co-investment arrangements. The depth of our experience on both sides of these transactions has provided us with a unique view on key topics, including issues related to minority investor rights, due diligence on targets companies, and reporting and access to information.

We have represented numerous clients in connection with their investments as lead or anchor investor in a private equity fund including, special rights with respect to governance, carry, management and other fees and successor funds, among other terms. Our familiarity with these matters allows us to efficiently review management company and general partner agreements to ensure that our client’s rights are protected. We also represent fund sponsors in their negotiations with lead and anchor investors so have a clear view of the market from both the investor and sponsor side.

We advise broker-dealers on regulatory compliance and transactional matters, including SEC, FINRA, and other SRO registration and membership issues; supervision; AML; capital requirements; customer protection; sales practices; Regulation Best Interest; research; trading and trade reporting; distribution of securities; pay-to-play restrictions; insider trading; FINRA’s corporate financing rules; and soft dollars.

Other areas of focus include the preparation, review, and updating of supervisory and compliance procedures, as well as drafting and negotiating clearing, account, prime brokerage, and other industry agreements. We prepare and file with FINRA new member applications (Form NMA) for de-novo broker-dealers and continuing membership applications (Form CMA) for FINRA member firms planning to undergo material changes in business operations. We are also experienced in the provision of due diligence and regulatory counsel in connection with acquisitions of broker-dealers and other regulated financial entities.

We counsel fund sponsors on the full range of issues involved in raising a private investment fund, including the state of the market for fund structuring and investor terms, SEC regulatory compliance, taxation, investor-related regulatory matters, and other related fundraising issues. Our broad experience also enables us to advise sponsors with respect to both ordinary course operational issues and special circumstances that occur in the private fund industry. As part of our ordinary course representation, we assist clients with SEC regulations, including Investment Advisers Act compliance, employment arrangements, cross-border and other tax planning matters, and issues related to ERISA.

Winston is involved in the establishment and operation of private investment funds that invest primarily in digital assets or with a broad range of investment strategies that use cryptocurrencies to complement or enhance their portfolios, including event-driven, merger, arbitrage, credit, managed futures, global macro, fund of funds, and multi-manager strategies, among others. We also provide counsel to managers and advisers of all types of offshore private funds and other non-U.S. trading vehicles, in all the primary offshore tax neutral jurisdictions, such as the Cayman Islands, Bermuda, the British Virgin Islands, the Bahamas, and Ireland.

We counsel investment advisers in all stages of their business, from structuring and formation of their firm through the growth of their operations organically and through acquisitions. We assist our clients with SEC and state investment adviser registration (and exemptions) and compliance with U.S. securities laws (e.g., the Investment Advisers Act of 1940, the Investment Company Act of 1940, the Securities Act of 1933, and the Securities Exchange Act of 1934). We represent commodity pool operators and commodity trading advisors in their registration (and exemptions) and ongoing regulatory matters under the Commodity Exchange Act and the rules of the National Futures Association. We also advise our clients on the Employee Retirement Income Security Act of 1974 as it relates to investment advisers and investment funds, including the ERISA “Plan Asset Regulation,” the Qualified Professional Asset Manager requirements, and fiduciary duties under ERISA.  We regularly counsel investment managers and advisers on the rules governing the conduct of investment managers and investment funds, including the development of compliance materials, codes of ethics, written policies and procedures, supervisory procedures, and internal controls. For investment managers and advisers, we perform compliance reviews and represent advisers in connection with SEC examinations.  We provide advice to sponsors of investment funds, including hedge funds, private equity funds, real estate funds, credit and direct lending funds, fund of funds, and venture capital funds. These funds may be U.S. domestic only funds, offshore “master feeder” funds, or parallel funds, and are often offered in a variety of jurisdictions. We also counsel clients on the establishment and acquisition of new advisory businesses (including formation and registration with appropriate regulatory authorities).

We provide ongoing regulatory advice with respect to, and innovative solutions to issues arising under, the Investment Company Act, the Investment Advisers Act, the Commodity Exchange Act, ERISA, tax, and broker-dealer/FINRA regulations, among others.

Special circumstances in which we assist clients include key person or employee departures, permanent capital vehicles, liquidity solutions, employment litigation and arbitration, sponsor separations and breakups, defaulting limited partners, investor regulatory issues, sponsor replacements by investors, internal investigations and reorganizations, and going public matters.

Winston serves as the primary legal counsel to more than 200 venture capital fund managers. As we have one of the most active venture capital fund practices among major law firms, we are uniquely positioned to understand the latest market trends for venture capital funds, which allows us to advise our clients on terms that are market for their respective fund(s)’ size, type, and vintage, as well as market terms for agreements entered into in connection with our clients’ businesses and investments. A large and growing client base gives us the opportunity to work on a wide range of funds and transactions and has enabled us to build a team of legal professionals with deep knowledge of the venture capital industry.  

Learn More