Frequently Asked Questions
This website is operated by the Infinity Q Diversified Alpha Fund (the “Fund”) to provide information on the Fund’s liquidation and distribution process. Please check this website regularly for future updates and information, as well as certain Fund documents relating to the Fund’s liquidation and distribution.
Shareholders or their representatives who have questions about the Fund can submit them using the “Submit Inquiry” link above.
The Fund will strive to answer as many inquiries as it can through this section of the website. Shareholders with account-specific questions or requests may continue to call the Fund at 844-473-8631.
1. Infinity Q Capital Management
1.1 To what extent are Infinity Q and its employees involved in the liquidation of the Fund’s portfolio and distribution of Fund assets? Why is that involvement appropriate, as opposed to using third-party service providers to fill those roles?
Infinity Q Capital Management (“Infinity Q”) is not expected to be involved in the distribution process. Infinity Q’s involvement in the liquidation of the Fund’s portfolio has been subject to direct oversight, including by a third-party adviser, as described further below.
The order issued by the Securities and Exchange Commission (“SEC”) on February 22, 2021 (the “Order”) directed the liquidation of the Fund. In response to the Order, several of the counterparties to the Fund’s bilateral OTC positions issued notices of intent to terminate those positions immediately. These notices created a substantial risk that the counterparties would terminate the bilateral OTC positions involuntarily and in short order, and potentially cause the Fund to owe money to the counterparties on those positions based on prices dictated by the counterparties. Because of this risk, the Fund’s Board of Trustees (the “Board”) decided to take immediate steps to preserve the Fund’s assets in the best interests of shareholders and to the extent possible. Under the circumstances, it was neither feasible nor practical for the Fund to retain an investment adviser to completely replace Infinity Q in the management of the liquidation process.
As a result of these factors and given Infinity Q’s familiarity with the Fund’s complex holdings, Infinity Q’s involvement in the liquidation was appropriate, but only under the strict terms established by the Board and the Order. The Order prohibits Infinity Q from engaging in any transactions on behalf of the Fund without the prior written approval of the Board or its designee. The Board also noted that Infinity Q placed its former Chief Investment Officer, who was implicated in the valuation-related conduct that led to the Order, on administrative leave and that he would take no part in Infinity Q’s operations.
Further, immediately after the Order was issued on February 22, the Fund began the process of seeking a third-party investment adviser to advise the Board in connection with the Fund’s liquidation and to act as its designee. On February 26, the Board retained Russell Investments Implementation Services (“RIIS”), an affiliate of Russell Investments, a leading global institutional asset manager with significant multi-asset class trading experience including derivatives. The Board retained RIIS to advise it with respect to the Fund’s liquidation, to act as its designee, and to work with Infinity Q on all Fund transactions. Since RIIS’s engagement, Infinity Q has been required to present all potential Fund transactions to RIIS and the Board for review and consideration. RIIS also monitored Infinity Q’s daily activity as the liquidation occurred, and discussed that activity regularly with the Board.
As described in the Shareholder Update on March 26, 2021, the liquidation of the Fund’s portfolio is complete and the proceeds are now being held in cash and cash equivalents at the Fund’s custodian. Infinity Q is not expected to have any further involvement in the Fund’s liquidation.
1.2 Is Infinity Q paying for any of the expenses associated with the liquidation and other expenses arising from its alleged valuation errors?
Under the terms of the Investment Advisory Agreement (“IAA”) between Infinity Q and the Fund dated September 23, 2014, Infinity Q is responsible for paying any costs of liquidating the Fund. Pursuant to that provision, the Fund is tracking all liquidation expenses so they can be charged to Infinity Q, and has demanded that Infinity Q agree to pay those expenses. To date, Infinity Q has not responded to the Fund’s demand. However, as of February 18, the last day the Fund calculated a net asset value (“NAV”), the Fund had accrued approximately $1.8 million in Infinity Q management fees. The Fund has informed Infinity Q that the Fund will not be paying those fees to Infinity Q. Although those fees may be adjusted following any recalculation of the Fund’s NAV, the Fund intends to offset expenses associated with the liquidation and other expenses, including legal fees, against any unpaid management fees. In addition to payment of liquidation expenses, the Fund has also reserved the right to recoup any overpayment of prior management fees, and the Fund expects to seek such recoupment from Infinity Q in the event that the Fund determines in a recalculation of its NAV that Infinity Q was not entitled to some or all of the management fees it previously received.
Under the IAA, Infinity Q is also responsible for indemnifying the Fund for all losses the Fund may sustain, including legal fees, arising from Infinity Q’s willful misfeasance, bad faith, gross negligence or reckless disregard of the obligations or duties under the IAA. The Fund has provided notice to Infinity Q that it intends to seek indemnification from Infinity Q for all legal fees and other expenses arising from the issues addressed in the Order. The Fund is reserving all rights and taking appropriate steps to protect the Fund’s and shareholders’ interests with respect to potential claims against Infinity Q while the nature, extent, and consequences of the conduct at issue are being determined.
To date, Infinity Q has not agreed to reimburse or advance the Fund for any of these amounts or any future amounts. Further, the Fund anticipates that the approximately $1.8 million in accrued management fees, even if not adjusted downward based on any NAV restatement, will be insufficient to pay for either the liquidation costs or the losses the Fund incurs based on Infinity Q’s conduct. The Fund has informed Infinity Q that the Fund reserves all rights to seek to recover all fees and expenses from Infinity Q.
2.1 Why can’t the Fund start making distributions now or before the revaluation is complete?
The Fund understands shareholders’ desire to begin receiving distributions as soon as possible. However, the Fund and its current assets are or may be the subject of claims asserted by a number of different parties. These parties include shareholders that previously redeemed all or some of their shares, as well as indemnified parties and third-party service providers. For example, certain current or former shareholders have filed putative class actions against the Fund and others whom the Fund is or may be required to indemnify, and the Fund’s ability to distribute assets is limited while such claims are pending. The Fund is in the process of estimating what these and similar expenses and potential liabilities might be, which will enable the Fund to establish a reserve to satisfy these liabilities. The Fund does not believe it is in the best interests of shareholders to begin making distributions until that reserve is established, as it would subject recipients of such distributions to potential clawbacks of amounts distributed in excess of amounts available after providing for the Fund’s actual and potential liabilities.
2.2 Why is it taking so long to commence distributions?
In order to estimate all of the Fund’s potential liabilities, the Fund needs to verify its historical NAV, which was calculated by the Fund in part based on Infinity Q’s valuations of the Fund’s bilateral OTC positions. Because of the complexity of certain of the Fund’s positions, the Board has retained a third-party valuation consultant to advise the Board regarding the Fund’s historical valuations. The third-party valuation consultant has begun to analyze the Fund’s portfolio and its historical valuations, but the process is challenging and time-consuming. It is also unclear how far back, if at all, the valuation issues raised by the SEC Staff discussed in the Order go.
Once the third-party valuation consultant presents its findings to the Board and the Board determines whether or not any historical NAV adjustments are required, the Fund expects to be able to calculate any estimated liabilities associated with those adjustments. After that process is complete, the Fund must, in accordance with the Order, present a distribution plan to the SEC Staff for review before it can commence making distributions. In determining the methodology by which the Fund makes distributions, the Board will consider, among other things, issues relating to current and former shareholders to the extent they may have sold Fund shares at an NAV that needs to be adjusted, and issues relating to current shareholders who purchased shares at an NAV that needs to be adjusted versus current shareholders who purchased shares at an NAV that does not need to be adjusted.
2.3 Does the Fund anticipate making more than one distribution?
At this time, yes, the Fund believes it is likely that there will be more than one distribution. The initial interim distribution will be determined based on ensuring the necessary reserve for projected potential liabilities, and on any projected recoveries in favor of the Fund from third parties. It is likely that, as events unfold, those projections will change, which may permit additional distributions. The Fund will make a final distribution of any remaining assets once all potential liabilities and recoveries are resolved.
2.4 The Shareholder Updates reference a reserve for lawsuits and other claims. Why aren’t those expenses covered by insurance?
Although the Fund maintains insurance that covers its trustees and certain officers with respect to particular losses, including legal fees and other expenses resulting from civil litigation involving the Fund and its trustees and officers, certain of the expenses and liabilities that the Fund has incurred and anticipates incurring in connection with its liquidation and other matters discussed in the Order are not covered by any available insurance. These costs include expenses associated with the liquidation, expenses associated with the investigation and pursuit of affirmative claims on behalf of the Fund and its shareholders, other expenses associated with any government investigations, and certain expenses, including legal fees, incurred by service providers and others who are indemnified by the Fund. The Fund must establish a reserve to fund these expenses and liabilities.
2.5 If the distribution process is likely to go past year-end, will the Fund provide investors an opportunity to sell shares and realize tax losses in 2021?
In order to permit shareholders to redeem shares, the Fund would need to seek approval from the SEC to rescind the Order. At this time, the Fund does not anticipate seeking such relief or having a basis to do so. The Board has directed the various parties involved in this process to work as diligently and as quickly as possible so that the Fund can begin and complete distributions as promptly as possible. Given the complex nature of the Fund’s historical holdings, however, the Board continues to expect this effort to take several weeks or longer. If and when it becomes apparent that the process may not be completed by year-end, the Board will explore potential options to address the consequences that a prolonged distribution period may have on shareholders.
2.6 (Updated 6/7/2021) Why is such a large reserve necessary when current shareholders may be the ones who suffered the most losses? Shouldn’t that money just be distributed to current shareholders, thereby reducing the potential exposure in the class action litigation?
The Plan treats (i) current shareholders as equity owners of the Fund’s assets; and (ii) former shareholders, to the extent they have claims against the Fund’s assets, and shareholders who submitted redemption requests on or before February 18, 2021 that were not satisfied by the Fund, as creditors who may have claims against the Fund. Claims of creditors are considered liabilities of the Fund. Although there is overlap of identity between current shareholders and members of the proposed classes alleging damages claims against the Fund’s assets, there are also potential class members alleging damages claims who are not current shareholders. So, not all members of the potential classes are entitled to distribution as equity holders. And even if there were identity between shareholders and the members of the potential classes, the method by which payment to one or both potential classes would be distributed among class members in a litigation would be net of payment of their attorneys’ fees and expenses and would be different from the pro rata methodology for distributing to equity holders set forth in the Plan. And, even if those serious distinctions did not exist, the fact is the Fund does not have the power to end the pending class action litigation unilaterally, even by distributing reserved amounts.
2.7 (Updated 6/7/21) The Plan does not provide for distributions to former shareholders. Why?
Former shareholders who have claims against the Fund are treated as creditors, not as shareholders. So, there is no provision for making a distribution to a former shareholder. Also, bear in mind that if a former shareholder was overpaid in a redemption, the Fund may assert a claim against that former shareholder and will reduce any payment to that shareholder on account of the Fund’s claim.
2.8 (Updated 6/7/21) Why did the Board adopt a pro rata distribution based on February 18, 2021 holdings instead of re-striking the NAV and recalculating the number of shares each shareholder has, which would give consideration to later purchasers who presumably were harmed more by the overvaluation than earlier purchasers?
The Plan of Distribution provides for a straightforward and expedient interim distribution of the Fund’s assets (net of the Special Reserve) to current shareholders. The Board determined that re-striking the NAV and recalculating the number of shares held by each shareholder at the relevant time would require a difficult, time-consuming, fact-intensive and expensive inquiry. Moreover, at the end of that exercise, issues concerning why certain investors chose not to redeem while others did would remain. Given the number of variables involved with re-striking the Fund’s NAV and the uncertainty around making assumptions about what a shareholder might have done in the past had the NAV been different, the results would be speculative at best and could not be said to be fairer and more equitable to all shareholders than pro rata distribution of the Fund’s assets to current shareholders based on the Fund’s holdings as of 8:00 a.m. Eastern Time on February 19, 2021.
2.9 (Updated 6/7/21) Who could have a claim to the Fund’s assets that are senior to the shareholders?
Delaware statutory trust law (12 Del. C. § 3808) and the Plan of Liquidation require the Board to reserve for all of the Fund’s debts, obligations and liabilities, whether contingent, conditional, unmatured, known or unknown. As a general matter, such claims against the Fund arising from debts, obligations and liabilities of the Fund have priority to the claims of current shareholders, who are equity holders in the Fund and not creditors of the Fund. Examples of creditors who may have claims against the Fund include the Fund’s service providers, parties seeking indemnification from the Fund pursuant to indemnification agreements, and plaintiffs in the litigations asserting damages claims and seeking recovery from the Fund’s assets. The Board has undertaken a process to evaluate and estimate the Fund’s potential expenses and liabilities and has determined that a substantial reserve is required to ensure the Fund has sufficient assets to meet those expenses and liabilities. By reserving for potential liabilities and other claims creditors may make against the Fund, the Board makes no admission that any damages are or will be owed and does not agree that there is any legal or factual basis for any claim or damages amount
2.10 (Updated 6/25/21) Is the Fund recalculating historical NAVs before making the Interim Distribution?
The Fund continues to anticipate that it will make the initial Interim Distribution approximately 30 days after the SEC staff completes its review of the Plan. The process of revaluing the Fund’s historical NAVs is ongoing. The Fund is attempting to complete that process before making the Interim Distribution under the Plan but will not delay the Interim Distribution if that work is not complete. Revaluation of the historical NAVs is important to the distribution process because the Fund must attempt to identify if a current shareholder was overpaid on a redemption that was made on or before February 18, 2021. If a shareholder was overpaid, the overpayment amount will be set off against that shareholder’s distribution—whether interim or final.
2.11 (Updated 6/25/21) Will the NAV recalculation change the proportional stake that current shareholders will own in the initial or further distributions, or the proportional stake used to calculate claims against shareholders and former shareholders who redeemed some or all of their shares?
No. We do not expect to recalculate the number of shares owned by each current or former shareholder.
2.12 (Updated 6/25/21) Will institutional investors receive more money in the distribution than individual investors?
Institutional and individual shareholders are treated equally under the Plan, regardless of which class of Fund shares they own. Each of the shareholders in each of the two classes will receive a pro rata distribution based on the number of shares held in the class as of 8:00 a.m. on February 19, 2021 as a fraction of the total shares outstanding in the class. There is no preference or priority for one class or the other.
2.13 (Updated 6/25/21) Does the SEC have to approve each distribution under the Plan before it is made?
No, but the Board expects to continue to consult regularly with the SEC staff and, if in those consultations the SEC staff expresses a view regarding a potential distribution, the Board will take that view into account in making its decisions.
2.14 (Updated 6/25/21) If the Fund’s reported net asset value on February 18, 2021 was about $1.727 billion, and the cash assets of the Fund remaining after liquidation were about $1.249 billion as of June 4, 2021, then why isn’t the Special Reserve something closer to $500 million?
The main reason is that the Special Reserve includes an additional amount for uncertainty, in order to minimize the risk that the amount the Fund pays out in interim distributions leaves the Fund unable to pay all of its liabilities and expenses (which would cause the Fund to have to seek returns from recipients). There are many unknowns about the total amount of the Fund’s liabilities and expenses. And once money is paid out, the Board believes there is a substantial risk it could not be recovered if it turns out there was an overdistribution. It is also true that the Special Reserve includes amounts for projected professional fees and expenses, but those amounts represent a small fraction of the total Special Reserve.
2.15 (Updated 6/25/21) Will claims asserted in litigation by shareholders and former shareholders get paid from the Special Reserve?
Yes, assuming the cost to the Fund of defending and resolving those claims exceeds the available insurance. In the event that the presiding courts do not dismiss the lawsuits filed by shareholders and former shareholders, the Board believes that the amount of insurance ultimately available to provide coverage for litigation by current and former shareholders is not meaningful relative to the potential cost to the Fund of defending and resolving those lawsuits. Accordingly, the Board expects that the Special Reserve may be required to cover substantially all of the amounts necessary to pay for the defense and resolution of all litigation brought by current and former shareholders, including the pending proposed class actions. The Board expects that any payments made from the Special Reserve to shareholders resulting from pending or future litigation, whether in connection with a settlement or judgment, will first need to be reduced by any plaintiffs’ costs and attorneys’ fees, with the remaining amount distributed to current and former shareholder-plaintiffs in those actions. If plaintiffs do not prevail in pursuing the pending or future litigation, or such litigation is otherwise resolved at a lower cost to the Fund than anticipated by the Special Reserve, the Board expects that it will then be able to reduce the size of the Special Reserve and make additional distributions to current shareholders pursuant to the Plan.
2.16 (Updated 6/25/21) How many shares of each class of the Fund are outstanding?
As of 8:00am ET on February 19, 2021, the Fund had the following shares outstanding:
Investor Class 4,662,375.287
Institutional Class 129,867,832.617
2.17 (Updated 8/23/21) Is there any update on the timing of the Interim Distribution?
Pursuant to the terms of the SEC Order dated February 22, 2021, the Fund cannot commence distributions until the SEC staff has completed its review of the Fund’s proposed Plan of Distribution. Since the Fund submitted the proposed Plan on June 7, 2021, the SEC staff has requested additional information relating to its review. The Staff’s most recent request for additional information was made on August 18, 2021. The Fund has provided, and is continuing to provide, the SEC staff with the requested information. As previously disclosed by the Fund, the Fund anticipates making the initial Interim Distribution within thirty days after the SEC staff completes its review.
2.18 (Updated 8/23/21) Why can’t the Fund just distribute all of its assets immediately to current shareholders and declare bankruptcy?
The Fund is unable to distribute all of its assets to current shareholders and then declare bankruptcy because it is required by law to pay, or to provide sufficient reserve for, all its liabilities before equity holders receive a distribution. Even though some of the potential liability claims the Fund faces are held by current and former shareholders, those claims must be resolved or fully provided for before the Fund can legally make a distribution to current shareholders. For this reason, current shareholders could receive a distribution through the Plan based on their equity interests, and a separate payment from the reserve to resolve any claims related to pending or future legal actions. A bankruptcy proceeding would also add to the expenses of the Fund and delay distributions.
2.19 (Updated 8/23/21) Can you explain further why the Fund needs to establish a Special Reserve of approximately $750 million, and whether the amount of the Special Reserve is primarily to cover legal and other fees?
As explained below, legal and other professional fees and expenses comprise a small fraction of the Special Reserve.
The vast majority of the reserved amount is to provide for the possible damages the Fund might owe to current and former shareholders in connection with the shareholder litigation that has been filed or may be filed. It is important for every shareholder to understand that those cases assert, on behalf of substantially all shareholders, that each current shareholder (and some former shareholders) has a claim against the Fund. Those claims must be paid, or adequately reserved for, before the Fund is legally permitted to distribute money to shareholders for their equity interests in the Fund. As a consequence, it is possible (and perhaps likely) that a current shareholder will be paid from the reserve for the claims that shareholder is asserting through the shareholder litigation, and will receive a separate distribution through the Plan constituting that shareholder’s portion of the equity of the Fund. The value of that equity interest is inversely proportional to the size of the claims against the Fund, so as a shareholder receives more in the shareholder litigation, there will be less equity value for the Fund to distribute through the Plan.
The second largest amount of the reserve is a cushion to prevent overdistribution of the Fund’s assets. If the Fund distributes too much money to current shareholders for their equity interests, and it turns out the claims against the Fund are larger than anticipated, the Fund will have to ask shareholders to return some portion of the money distributed to them under the Plan in order to pay the Fund’s claims in full. The Fund would like to avoid that outcome and the additional costs that would result. Accordingly, the reserve contains an additional amount in order to prevent overdistribution. As events unfold and the amount of the potential liabilities of the Fund (mainly the shareholder litigation exposure) become more certain, the Board will evaluate whether it is advisable to reduce or eliminate this cushion. It is appropriate to view the amount of the cushion as assets that the Fund anticipates will be distributed to current shareholders for their equity interests at some future time after the Initial Distribution. When the cushion will be reduced or released, and whether it will be reduced or released entirely, depends in large part on how the shareholder litigation, and any future litigation, proceeds.
Together, the amount reserved for the shareholder litigation claims plus the cushion make up approximately 90% of the Special Reserve described in the Plan. That amount – about 90% of the reserve – is money that is expected to be paid to current and former shareholders (less the attorney’s fees that the current and former shareholders will give up to plaintiffs’ lawyers), either by way of payment through the shareholder litigation (according to the distribution methodology that would be approved by the court) or through a release of the amount of the reserve constituting the cushion described above. The remaining 10% is comprised of projected ordinary trust expenses, projected legal and professional fees and expenses, and projected exposure for indemnity obligations.
3. Potential Claims for Recovery on Behalf of the Fund
3.1 What investigation has the Board undertaken to identify potential claims against service providers to the Fund or former shareholders who redeemed?
Immediately upon learning of the SEC Staff’s allegations involving Infinity Q, the Board focused on protecting the Fund’s assets and liquidating the Fund’s portfolio in the best interests of shareholders. Now that the liquidation has been completed, the Fund intends to analyze any potential claims it may have, including against service providers to the Fund. The Fund has provided notices to certain service providers reflecting that the Fund reserves all of its rights as it explores potential claims, and is seeking agreements with certain service providers to toll the statute of limitations with respect to any potential claims the Fund may have.
The assessment whether there may be claims in favor of the Fund relating to former shareholders will depend on several factors that have not yet been determined. This assessment cannot begin in earnest until the valuation analysis currently underway by the third-party valuation consultant is completed and further analysis of shareholder activity on and before February 18, 2021 is conducted.
The Fund is reserving all rights and taking appropriate steps to protect its and shareholders’ interests with respect to potential claims the Fund may have while the nature, extent, and consequences of the conduct at issue are being determined.
3.2 (Updated 6/25/21) Why hasn’t the Fund sued anyone yet for the conduct that led to all this?
The Board intends to complete its investigation of the facts, evaluate the potential claims held by the Fund, and then consider the most effective way to assert those claims, including whether the Fund should initiate litigation or other dispute resolution mechanisms. In the meantime, the Board has sought, and expects to obtain, tolling agreements with persons and entities against which the Fund may have claims. These agreements generally toll the running of any statutes of limitations for a period of time and preserve the Fund’s ability to assert claims in the future.
4. Miscellaneous Questions
4.1 (Updated 8/23/21) Will shareholders be able to claim a loss in tax year 2021?
U.S. shareholders are strongly urged to consult their own tax advisors regarding the availability and timing of recognizing a tax loss, as the Fund (like other mutual funds) does not provide tax advice.
In those consultations, U.S. shareholders and their tax advisors may wish to consider that the Fund is taxed as a “regulated investment company” under the Internal Revenue Code of 1986, as amended (the “Code”), and consequently any losses incurred by the Fund do not pass through to shareholders. Any such loss by the Fund, however, would be expected to reduce the net asset value of the Fund and accordingly also reduce the price of the shares of the Fund. A U.S. shareholder of the Fund generally only recognizes a loss when they dispose of their shares in the Fund either by sale, redemption, or upon a final liquidating distribution of the Fund. A shareholder cannot recognize a loss on the Fund shares until they have satisfied the requirements under Section 165 of the Code and the accompanying regulations which generally require a shareholder to have completely disposed of their interest in the Fund to recognize such loss. The deductibility of capital losses is subject to limitations.
Although the Fund is currently unable to anticipate when it will be able to make a final liquidating distribution, at this time it is highly unlikely that a final liquidating distribution could be made in 2021.
4.2 (Updated 8/23/21) Please provide additional detail on the monthly expenses. Do they include anything for portfolio management, and do you anticipate the fees will remain at the level reported in June and July 2021?
The Fund is not paying investment advisory/portfolio management fees, and it has not done so since February 2021.
The Fund expenses paid in June and July 2021 consist primarily of the following categories: (1) legal fees paid to Fund counsel and counsel for parties entitled to be indemnified by the Fund; (2) shareholder servicing fees paid to intermediaries; and (3) fees and expenses paid in connection with the revaluation of the Fund’s portfolio. Certain of these amounts, particularly those relating to legal fees paid in July, were for multiple invoices that covered several months. The legal fees paid by the Fund do not include amounts billed to the Fund’s insurance carrier for payment.
4.3 (Updated 8/23/21) What insurance is available to cover claims against the Trust, the Trustees and Officers?
The Trust maintains liability insurance which provides coverage for the Fund, its trustees and officers, and certain other parties the Fund is obligated to indemnify. The policy has a total aggregate limit of less than $10 million. The Trust, trustees and officers also have coverage under a policy maintained by Infinity Q, which has a total policy aggregate limit of $20 million. The insurance available under the policies maintained by the Trust and Infinity Q are eroded by defense costs for covered claims.