Transparency

At January’s 2010 International Funds Conference, hosted by Stuarts, Krys & Associates and RBC Wealth, a panel debated transparency as it applied to the hedge fund industry. The panel monitored by Ken Krys of Krys & Associates looked at transparency from four separate and distinct viewpoints: from that of a director of a hedge fund (Burke Files), a US attorney (Marc Mukasey), a Cayman attorney (Anthony Akiwumi) and a Cayman insolvency practitioner (Margot MacInnis).

The session commenced with a general review of transparency, which has been a topic of interest that is growing over the past few years, and is certainly being given considerable attention recently, especially in the wake of a number of financial institution and hedge fund failures. It is clear that regulators and investors in particular are calling for more transparency. Following the failure of Lehman Brothers and the bailout of AIG in 2008, regulators, institutional investors and private investors all over the world are demanding increased transparency of hedge funds.
 
Add to the mix the Bernard Madoff Ponzi scheme and that demand for transparency has surpassed poor performance as a top concern in some circles. In an effort to detect risks before they grow to systemic risks some regulators are seeking to enact legislation that would require hedge funds to provide increased levels of transparency. Regulators in onshore and offshore jurisdictions are considering what needs to be done to address this issue. There have been bills introduced in the United States that would require funds worth more than $50 million to regularly disclose the value of their investments; and another that seeks to help protect investors, identify systemic risk, prevent fraud and would also require advisers to hedge funds, private equity funds, venture capital funds and other private pools to register with the Securities and Exchange Commission (SEC).
 
The topic produced interesting viewpoints and lively debates at the conference. It was noted that the failure of some fund managers to provide adequate levels of transparency could negatively affect the ability of the fund to attract capital. But, the solution cannot simply be full disclosure, as this is expensive and impractical as it is simply impossible to identify and disclose every risk and material event. Even if regulators received more information, they do not have the resources to properly analyse it.
 
One of the challenges in providing greater transparency is balancing the costs of doing so and ensuring that a fund can maintain operational efficiency. Providing disclosure adds to the cost of business, a burden that must be passed on to investors. The challenge for a hedge fund is in striking the right balance of disclosure and transparency while not compromising the elements that give it a competitive edge. Many service providers and investment managers see an improvement in the processes as a possible solution to meet the demand for greater transparency. Fund managers are starting to automate key processes such as pricing, cash management, reconciliation and collateral management as well as escalating the use of more independent valuations and accounting to build investor confidence.
 
There seems to be no consensus so far. A particular challenge relates to the balance of privacy and competitive advantage over the demand for greater disclosure. Businesses must be able to protect the specific elements that separate themselves from others, particularly their investment methods, their analytical processes and any intelligence they have. In addition the personal information of their investors and service providers must be protected.
 
The panel queried whether additional disclosure is the answer? Discussing the Madoff case and that fuller disclosure would probably not have helped. Where a fraud is perpetrated, increased disclosure of false information does not assist. It was agreed that most importantly the focus should be on what is done with the information and how investors can use that information to assess the risks. Investors who are researching which funds to invest would be better served conducting appropriate investigations, analysis and due diligence of information that is available.
 
The panellists highlighted, that in cases like Madoff, there were red flags that suggested a fraud was occurring. Many investors simply ignored the signs. These include the investment manager holding custody of the client’s assets rather than them being held by third-party financial institutions. Also, the investment manager produced the reporting to investors, it did not come from a third-party provider or administrator. For a fund the size of Madoff, many found the fact that it was audited by a service provider with limited accounting service personnel to be concerning.
 
Thirdly, there is the old adage, if it looks too good to be true, then it probably is. The returns in the Madoff funds grossly outperformed the market and many cautioned investors that it was all a charade.
 
Investors cannot simply rely on word of mouth recommendations about which hedge funds are best. Investors need to focus on analysis and due diligence including reading the fund’s offering memorandum, understanding how the assets are valued, understanding the fee structure and understanding any limitations on redemption rights. Research on the background of the hedge fund managers should also be considered when evaluating funds. By considering a number of factors along with an understanding of the risks, investors can be better positioned and informed in making their investment decisions.
 
Panel members cautioned that there must be appropriate balance in meeting the demands of investors and regulators and that this should be done without prejudicing the confidentiality and economic interests of other stakeholders. Those funds able to find that balance are best positioned to enjoy the benefits of investment in their funds.

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Margot MacInnis
Margot has over 13 years of experience in the financial services industry. Currently, she is extensively involved in the liquidation of the Sphinx Group of Companies. Her experience encompasses cross-border insolvency, regulatory compliance, corporate recovery, risk management and use of technology to address corporate governance and policy objectives.
 
Margot MacInnis
Managing Director
KRyS Global
Governors Square, Building 6, 2nd Floor
23 Lime Tree Bay Ave.
PO Box 31237
Grand Cayman KY1-1205
Cayman Islands


T. +1 (345) 815 8404
E.
Margot.Macinnis@KRyS-Global.com
W.
www.krys-global.com
 

KRyS Global

RESOLVING COMPLEXITY

See our Profiles in the CFR eversion 

Boutique insolvency, fraud investigations and asset recovery firm KRyS Global expands into Europe with an office in Guernsey.  The firm also launches Ferret, a new product line of technology-based forensic and fraud investigations tools. Founder and Chief Executive Officer Kenneth Krys speaks about the news and the first five years of the firm. 

Only five years after its launch, KRyS Global today has around 60 employees in four offices in the Cayman Islands, the British Virgin Islands, the Bahamas and Bermuda.

In October they will be joined by a new office in Guernsey offering independent, boutique insolvency, fraud investigation and asset recovery services that have made the firm a success in the Caribbean offshore region.

Just like in other jurisdictions where the firm has a presence, the rationale for the move is that Guernsey is a top offshore jurisdiction and the market for large scale liquidations is dominated by the big accounting firms, says KRyS Global founder and CEO Ken Krys.

“In all of the markets, where we have a presence, there are firms that can do insolvency work and does it well, but they are not boutique firms that specialise in asset recovery and fraud investigations.”

While working with the Cayman Islands Monetary Authority, Krys says, he noticed few firms were truly independent and able to take on a large liquidation without having a conflict of interest.

Those conflicts could for example be that the accounting firms provided services to the company in question, that they audited service providers of the company or that they simply did not want to be in a position where they may have to criticise service providers or others who may refer work to them.

Starting KRyS Global was the opportunity to set up an independent, boutique firm focused on offshore fraud investigations that would not face such conflicts.

“What we have seen going into these jurisdictions is that the landscape has changed and people actually realise that insolvency firms or fraud investigating firms can add value,” says Krys.

“Having developed our network of offices and reputation in the Caribbean and having strong relationships with independent firms in Asia we considered an office in Europe made sense for the next phase of growth for the firm. We are sending a team, led by Tim Le Cornu, who is currently a director in the Cayman office, to use the skill sets that we have developed and expand that into Europe and some of the offshore centres there, starting with Guernsey.”

Services

Although KRyS Global is often referred to as an insolvency firm, Krys explained that insolvency is often used only as a tool to recover assets. While the firm does a lot of insolvencies and restructurings, recovering assets is the firm’s key strength, explains Krys.

KRyS Global is perhaps best known for extensive hedge fund litigation and its work on such matters like Fairfield Sentry Ltd., in liquidation, the largest feeder fund invested in Bernard L Madoff Investment Securities LLC. After Krys was appointed by the BVI Commercial High Court as the liquidator of the Fairfield fund that invested into the Madoff Ponzi scheme, the fund, on application of Krys and the firm, was granted Chapter 15 foreign main proceeding recognition in the US, which, inter alia, has allowed it to pursue a cross border litigation strategy seeking to recover the clients’ investments.

In some cases this meant KRyS Global sought to recover payments which were made to redeemers before the bankruptcy of the fund on the grounds that such payments were recoverable by the fund and by the liquidator employing BVI statutory avoidance claims. This litigation is being closely followed by those in the fund industry and by other insolvency practitioners in the offshore world. “This is a good example of the creativity we implement to find alternative ways to try to maximise value for our stakeholders,” Krys says.

Part of the firm’s success is also due to the fact that “we don’t have the concerns about pursuing avenues of recovery, even when that may require bringing a claim against a potential client, an audit client or anyone who may refer work to us”, in contrast to the larger accounting firms which may not want to see other business lines compromised.

“I have a duty to go out and make sure that I try to get returns for stakeholders,” maintains Krys. The objective of a liquidator is to maximise recoveries and to distribute the assets to creditors and investors as promptly and efficiently as possible. For Krys, litigation is only a means to this end.

Krys does not pursue litigation lightly. Before pursuing any litigation, Krys obtains legal advice. If the litigation is being done in the context of liquidation, Krys consults with the committee of creditors and/or investors, and will then obtain court approval for the strategy, where appropriate.

“Resolving disputes outside expensive and uncertain litigation is always preferable. But a liquidator must always be prepared to go to trial if he files a claim.”

Recession

KRyS Global is almost always brought in when a case involves fraud or significant losses. The 2008 financial crisis and subsequent recession contributed to this, but Krys does not believe the recession was the only reason for the uptake in insolvencies since 2008.

It is rather that the recession caused liquidity issues, which led investors to be more diligent in regards to their investments and, in some instances, incented and/or compelled investors to seek to convert their investments to cash.

In some cases investors realised the assets were just not there or that they had been invested in instruments not covered by the investment mandate. Insolvencies were thus a consequence of these issues and, needless to say, resulted in attempts to recover assets, when other means proved unsuccessful.

“One of the things that we find interesting,” says Krys, “is that a lot of the issues which arose from 2008 are still out there”. For instance in some cases investment managers have done little to deal with assets since implementing protective measures, and in other instances directors and/or administrators have resigned. The remaining stakeholders may struggle to resolve the issues, because they don’t have the required voting rights, Krys says.

“Where these issues arise, the directors and investment managers are trying to find a mechanism for resolving the issues, but they just don’t have all the pieces or the authority to do so.”

As a result liquidators have to evolve and be on the lookout for new, innovative means of recovering assets. The insolvency and asset recovery space has changed considerably over the past 20 years, Krys says.

“Liquidators used to be people who did the audit or did the accounting. They were the senior partners in most of the bigger accounting firms.”

Today the market place has become a lot more sophisticated.

“Liquidators have to be forever thinking; have to be very vigilant and cost effective. One of the primary functions of the court is to make sure that liquidators are doing their job correctly, providing the level of service and the type of skill sets to justify the rates they are charging.”

There is an expectation that liquidators not assume a passive role that they take an active role in their estates, that they try and come up with creative and innovative ways of reaching resolutions and then distributing money back to creditors.

They also have to make investors and creditors part of the process, by allowing them to be heard. Much of the work of a liquidator involves communicating with the liquidation committee, composed of investor and creditor representatives, whose primary job it is to review the fees of the liquidator.

“That means critically looking at your time, determining whether that time should have been incurred, whether you have the right staff doing that work and then whether you are bringing value back to the estate,” Krys says. “There are some liquidation committees that we communicate with on a nearly weekly basis as to what we are doing.”

Creativity

Most importantly in today’s environment, Krys says, “Liquidators have to be always thinking about new creative ways of recovering assets for an estate”. One example of this is how KRyS Global dealt with the claim the Madoff trustee Irving Picard had against Fairfield Sentry.

“We are one of the few offshore funds that entered into a deal with Mr. Picard. The reason for that is, says Krys,”to some extent because Fairfield Sentry was the most significant of offshore funds and the claim against it exceeded $3.2 billion”.

But part of the reason was also that Krys tried to devise a mechanism from which both parties would benefit. This involved going jointly through the assets and determining how to maximise the recovery of assets to the benefit of both estates.

“I knew that he was interested in some of the same parties as I was. We knew that in certain cases he had better tools to be able to pursue those claims than we did, because of the information he had access to.”

Given the early stages of the case at the time, it was a moot point whose individual claims on different parts of the law had more chances of success in litigation, so a split of the assets seemed sensible.

The largest obstacle in the negotiations was about $70 million of cash with Fairfield Sentry, which Picard wanted to recover for the Madoff estate. Krys did not see how he could get the BVI court to sanction the idea that $70 million of cash would be paid over to the apparent disadvantage of the stakeholders of the Fairfield Sentry estate.

Picard meanwhile had similar difficulties in explaining to his stakeholders why he would leave $70 million of cash untouched in a Madoff feeder fund.

Through a series of lengthy and extensive good faith negotiations, an arrangement was agreed where the cash was payable to the Madoff estate and in return Fairfield was given an allowed claim in the Madoff estate.

Technology

In addition to being creative, the importance of keeping at the cutting edge of technology, for example in fraud investigations, has become more important over time.

KRyS Global has extensively invested in technology during its first five years.

“I have been told numerous times that we have some of the best technology on the Island when it comes to how we deal with our investigations,” Krys says.

Internally the firm operates Share Point which allows it to be more efficient when it comes to archiving and searching documents and diarising items.

The technology focus also led the firm to launch its own product line of technology-based forensic and fraud investigation tools called ‘Ferret’.

Krys says for the past year the firm has seen more work in the areas of fraud, money laundering, corruption, large matrimonial disputes and trust disputes.

These types of cases often require use of large litigation databases and the ability to access deleted files, sift through large numbers of documents, emails or transactions and retrieval of data from text messages and other social media.


‘Ferret’ is going to be able to provide exactly those kinds of services to a target market of law firms – which are often the first parties alerted to a fraud – as well as to directorship firms and regulators.

The most important task will be educating people as to what they can do and what their opportunities are. “We need to ensure that they understand that when we do this work, we do so with the necessary discretion and confidentiality expected of such matters,” Krys says.

People

One of the main challenges for a fraud investigation and asset recovery firm is to find the right staff with the appropriate skill sets and personalities. It is about finding people who are energetic and ready to face challenges, Krys says.

“We have identified a dozen core capabilities that embody the values and strength of the firm and we strive to achieve and maintain these characteristics professionally and as an organisation. We recognise the importance of the corporate values on our culture and in attracting and retaining the best people.

The core capabilities form the guidelines for our team in delivering quality service and value to our clients and challenge each of us to achieve our professional and personal best.

Being a qualified accountant or lawyer is the basic expectation, he says, “but what we are looking for is how you get someone to think outside the box to provide that added value to clients.”

The demands of the profession are varied. Not only is it important to be sensitive to changes in circumstances, one needs to always be thinking of finding a solution when issues arise and not to get bogged down by the different demands of the parties involved.

A large part of the job is the ability to think ahead medium and long term despite all “the noise”, to set a goal and to get to that goal in the most efficient way possible, with a focus in maximising the return and distribution of assets, Krys says. “Staff loyalty and customer loyalty are our main priorities and we are privileged to have some of the best people and clients in the offshore world”.

KryS Global Executive Team 

KrysAlison-Cockle_
Alison Cockle 
Chief Financial Officer

 
0-Margot-MacInnis_Mug
 Margot MacInnis
Managing Director
Cayman Islands
Timothy-Le-Cornu
Timothy Le Cornu
Managing Director
Guernsey 
 John-Greenwood_Mug
John Greenwood 
Managing Director
British Virgin islands
 Patrick-McPhee
Patrick McPhee
Managing Director
Bermuda
 0Edmund-Rahming_Mug
Edmund Rahming
Managing Director
Bahamas

KRyS in the Community  

 The management of KRyS Global believes the firm has a corporate and ethical social obligation to reach out to the communities in which it operates. Consistent with the vision of the CEO and founder, KRyS Global supports two broad areas of necessity, hardship or deprivation.

Those involve private events and programmes that focus on the development and safekeeping of children; and those that encourage healthy lifestyles and well-being.
 

KrysComm 

Since its launch in 2007, KRyS Global has contributed in excess of $500,000 towards a variety of initiatives that reach these two objectives. Some of the charities or projects which the firm has supported in the past year or two include:

  • National Council of Voluntary Organizations
  • Junior Achievement
  • Facing Africa
  • Special Olympics
  • Cayman’s ARK – Acts of Random Kindness
  • Cayman Islands School of Fitness
  • Cayman Islands Red Cross
  • Cayman Islands Humane Society
  • Cayman Islands Crisis Centre
  • Cayman Islands Diabetes Trust
  • George Town Hospital Children’s Ward
  • Cayman Islands Stride Against Cancer
  • Cayman Islands Christmas for Kids Programme
  • Tristan Miller’s “Run Like Crazy”
  • BAAA High School National Championships
  • Bahamas Marathon
  • Bermuda Island Challenge
  • BVI Rugby Association
  • Caribbean Junior Squash Championships
  • Cayman Islands Rugby Union
  • Cayman Islands Triathlon
  • Cayman Islands Marathon
  • Pirates Week 10K Run
  • Jingle Bell Run
  • Virgin Islands Search and Rescue Swim the Sound
  • Sailability BVI

In addition, KRyS Global, in conjunction with its founder and CEO, is the lead organiser and sponsor of Off The Beaten Track – a one of a kind, 50km off-road ultra-marathon and relay race – which has raised over US$50,000 for the charity Facing Africa since the event’s inception in 2009.

This year, KRyS Global also commemorated its 5th year anniversary by donating a significant sum of money and employee time to four specific organisations carefully selected in each jurisdiction.

In the Cayman Islands, we refurbished the home of Ms. Blanche with assistance from Cayman’s ARK.

Bermuda staff teamed up with the Eliza DoLittle Society to cook and serve breakfast to the homeless and disadvantaged. In the Bahamas, we donned our aprons and joined the Great Commission in providing a hot meal to 270 people. And in the BVI employees assisted at the BVI Rugby Association Primary School Championships.



 

 

Ken-KrysSMa
Kenneth M. Krys Founder & Chief Executive Officer