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 that are not answered below 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.
1.1 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.
1.3 (Revised 3/8/22) Have any lawsuits been filed against Infinity Q? Which law firms are representing the plaintiffs?
Prior to February 1, 2022, there were three pending lawsuits filed by Fund shareholders naming, among others, Infinity Q as a defendant. The plaintiffs in those pending lawsuits are represented by various law firms, including: Wolf Haldenstein Adler Freeman & Herz, LLP, Pomerantz LLP, Robbins Geller Rudman & Dowd, LLP, Scott+Scott, Attorneys at Law, LLP and Rosenfeld & Kaplan, LLP.
As of March 4, 2022, there are currently six pending lawsuits filed by Fund shareholders. In addition to the pending securities class action in state court in New York, New York and the pending securities class action in federal court in the Eastern District of New York, the most recently filed suits are:
• On February 9, 2022, Charles Sherck, an individual shareholder in the Fund, filed a securities class action complaint against U.S. Bancorp Fund Services, LLC (“USBFS”) in the Circuit Court of Milwaukee County in the State of Wisconsin. The complaint asserts claims under the Securities Act of 1933. Sherck v. U.S. Bancorp Fund Services, LLC; Case No. 2022cv000846 (Wisconsin). A copy of the Complaint is available here. The plaintiffs’ attorneys in that case are Mallery S.C. and Morris Kandinov LLP.
• On February 17, 2022, plaintiffs’ lawyers for the presumptive lead plaintiff in the securities class action pending in federal court in the Eastern District of New York (Yang v. Trust for Advised Portfolios, et al; Case Number: 1:21-cv-0147 (E.D.N.Y.)), filed a complaint adding new allegations based in part on facts alleged in the SEC Complaint against Mr. Velissaris and adding new defendants, including but not limited to the separate Infinity Q hedge fund. This complaint asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Sections 11, 12(a) and 15 of the Securities Act of 1933. The plaintiffs are Schiavi + Company LLC (“S+C”) which is an investment advisor seeking to recover damages on behalf of itself and its client accounts on whose behalf S+C invested in the Fund between December 21, 2018 and February 22, 2021, and (b) Dominus Multimanager Fund, Ltd., an entity that invested in the separate Infinity Q Volatility Alpha Offshore Fund, Ltd. during that same period. Defendants are the Trust, Infinity Q, Christopher E. Kashmerick, John C. Chrystal, Albert J. DiUlio, S.J., Harry E. Resis, Russell B. Simon, Steven J. Jensen, James Velissaris, Leonard Potter, Scott Lindell, Quasar Distributors, EisnerAmper LLP, USBFS, Bonderman Family Limited Partnership, LP, Infinity Q Management Equity, LLC, and Infinity Q Volatility Alpha Offshore Fund, Ltd. A copy of the Complaint in Schiavi + Company LLC DBA Schiavi + Dattani and Dominus Multimanager Fund, Ltd. v. Trust for Advised Portfolios, et al.; 1:22-cv-00896 (E.D.N.Y.) is available here. The plaintiffs’ attorneys in that case are Robbins Geller Rudman & Dowd LLP and Boies Schiller Flexner LLP.
• On February 23, 2022, Todd Rowan, an individual investor in the Fund, filed a derivative action purportedly on behalf of the Fund in the Chancery Court in the State of Delaware against IQCM, US Bancorp Fund Services LLC, and the trustees and officers of the Fund. This shareholder derivative action asserts claims for breach of contract against IQCM and USBFS and claims for breach of fiduciary duty against IQCM, the trustees and officers of the Fund. Todd Rowan v. Infinity Q Capital Management, LLC, et al., Index No. 2022-0176 (Delaware Chancery Court). A copy of the Complaint is available here. The plaintiffs’ attorneys in that case are Bernstein Litowitz Berger & Grossman LLP and Morris Kandinov LLP.
1.4 (Updated 3/8/22) Has the Fund concluded the re-valuation of the Fund’s Bilateral OTC Positions for periods before February 18, 2021?
Yes. As described in the Distribution Plan, the Fund retained Alvarez & Marsal (“A&M”) to revalue the Fund’s Bilateral OTC Positions. A&M initially evaluated the Fund’s Bilateral OTC Positions as of February 18, 2021. As reported in the Distribution Plan, A&M concluded that the valuations applied to most of the Fund’s Bilateral OTC Positions were materially overstated as of February 18, 2021. A&M then revalued the Fund’s Bilateral OTC Positions that were held as of each month-end business day. A&M recently finalized its evaluation of the extent to which the Fund’s Bilateral OTC Positions were overstated in prior month-end periods and the effect on the Fund’s NAV for prior month-end periods. Based on A&M’s independent valuation, A&M concluded that the Fund’s Bilateral OTC Positions were overstated at each month-end date from February 2017 through January 31, 2021. When A&M’s valuations are used for calculation of the Fund’s NAV, the Fund’s reported month-end NAV was overstated by less than 10% prior to October 31, 2019, by more than 10% from October 31, 2019 through January 31, 2021, and for most months in 2020 more than 30% overstated. The Fund has provided the A&M revaluation results to the SLC for its use in its investigation and pursuit of potential claims on behalf of the Fund.
2.1 (Updated 12/28/21) Does the Fund anticipate making more than one interim distribution?
The Fund does not anticipate making additional interim distributions while the shareholder litigation against the Fund and any party indemnified by the Fund is ongoing. The Fund’s ability to make additional interim distributions depends on whether it becomes possible to adjust the Special Reserve. That reserve is necessary to provide for projected potential liabilities of the Fund. It is likely that, as events unfold, those projections will change, which may permit additional interim distributions. The Fund will make a final distribution of any remaining assets once all potential liabilities and recoveries are resolved.
2.2 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.
2.3 (Updated 12/28/21) Since the distribution process will go past 2021, will the Fund provide investors an opportunity to sell shares and realize tax losses in 2021?
The Order prohibits the Fund from redeeming shares. Therefore, the Fund is unable to purchase shares from shareholders.
2.4 (Updated 6/7/21) 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.
2.5 (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.
2.6 (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.
2.7 (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.
2.8 (Updated 12/28/21) What is the status of the Fund’s revaluation of historical NAVs?
The process of revaluing the Fund’s historical NAVs is ongoing. The Fund continues to analyze shareholder activity on and before February 18, 2021 to determine whether a current shareholder was overpaid on a redemption that was made on or before February 18, 2021 and is therefore subject to potential offset or claw back.
2.9 (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.
2.10 (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.
2.11 (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.
2.12 (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.
2.13 (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.
2.14 (Updated 6/25/21) How many shares of each class of the Fund are outstanding?
As of 8:00 a.m. ET on February 19, 2021, the Fund had the following shares outstanding:
Investor Class 4,662,375.287
Institutional Class 129,867,832.617
2.15 (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.
2.16 (Revised 9/14/22) 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 theoretically possible that a current shareholder will be paid from funds in the Special 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 Fund’s liabilities
The Fund has reduced the Special Reserve from approximately $740 million to $570 million, and as announced on April 15, 2022, on April 28, 2022, the Fund began making an additional interim distribution to shareholders of the $170 million difference. Approximately 87% of the $570 million balance of the Special Reserve is composed of the Fund’s and the Fund’s indemnitees’ potential damages in pending securities litigation and the remainder is composed of projected ordinary trust expenses, projected legal and professional fees and expenses, and projected exposure for indemnity obligations.
If the court approves the proposed settlement of the shareholder securities class action litigation, the Fund’s contribution to the settlement fund does not require any payment from the Special Reserve. The Board of Trustees will continue to monitor developments in the proposed settlement to determine when it is appropriate for the Fund to make an additional interim distribution. For information about the proposed settlement of the shareholder class action litigation, please see the update on the homepage of the Fund’s website.
2.17 (Revised 9/14/22) When does the Fund expect to make an additional distribution to current shareholders?
The lawsuits asserted against the Fund and parties indemnified by the Fund will take time to be resolved. As such, the Fund does not currently know when it can make an additional distribution to shareholders, but it expects the earliest an additional interim distribution will be made is early 2023.
2A.1 (Updated 12/3/21) How should shareholders treat the Interim Distribution for U.S. federal income tax purposes?
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.
The Interim Distribution will be a cash liquidating distribution with respect to shares held in each shareholder account that is expected to be part of one or more distributions in complete liquidation of the Fund. Accordingly, the amount of the Interim Distribution (together with the aggregate amounts received from the series of liquidating distributions of which the Interim Distribution is a part) should be applied against the shareholder’s aggregate basis in all their shares in the Fund to determine gain or loss. A shareholder generally can only recognize a loss following the final liquidating distribution of the Fund if the total of all liquidating distributions received are less than the shareholder’s aggregate basis in all their shares of the Fund.
See also FAQ 4.1.
2A.2 (Updated 12/3/21) Did the Interim Distribution result in a reduction in shares?
The Interim Distribution did not result in a partial redemption of shares or other reduction of the total number of shares held by each shareholder.
2A.3 (Updated 12/28/21) Why didn’t I receive an interim distribution?
As of December 23, 2021, if you are a current shareholder of the Fund and you did not yet receive an interim distribution, it may be for one or more of the following reasons:
- ACCOUNTS WITH HOLDBACKS FOR NET GAINS. There are a small number of current shareholder accounts for which the Fund is holding back the interim distribution based on amounts previously received by that shareholder on one or more redemptions of Fund shares prior to February 18, 2021 pursuant to a NAV that the Fund has preliminarily determined was overstated. A final determination as to whether such shareholders will receive a distribution will be made after the Fund finalizes its calculations. The intermediaries and custodians have the list of accounts that did not receive the initial distribution and can advise you if that is the reason you did not receive an interim distribution.
- ADDITIONAL DATA NEEDED. The Fund is also holding back the initial distribution for certain accounts held at three intermediaries and custodians that are “omnibus” accounts that hold shares of multiple shareholders. Once your intermediary or custodian provides the trading details for the underlying shareholder accounts, the Fund will assess whether the underlying shareholders should receive the initial distribution and, for those shareholders that should receive the initial distribution, the Fund will promptly provide the interim distribution payment for those accounts. The intermediaries and custodians are working on retrieving the data for any such accounts.
- PRIOR REDEMPTIONS. If a shareholder submitted a request to redeem shares on or before 4:00 p.m. EST on February 18, 2021 that was not paid in February 2021, the Plan of Distribution treats that shareholder as having a “Redemption Claim” and such shareholder does not receive an interim distribution with respect to those shares. Instead, the Fund will pay Redemption Claims separately. The intermediaries have a list of the few accounts that relate to Redemption Claims. Please view the Plan for more information for treatment of “Redemption Claims” as defined in the Plan of Distribution.
- TRANSFERS. If after February 18, 2021, you transferred your shares to an account at a different bank or institution, your distribution was sent to the bank or institution where your shares resided as of February 18, 2021 and the prior institution will transfer your payment to the current institution. Contact your current institution so it can coordinate with your prior institution to obtain your funds.
2A.4 (Updated 12/28/21) How was the per share dollar amount of the recent interim distribution determined?
The dollar amount of $3.7197 per share for Institutional Shares (IDQNX) and $3.6676 per share for Investor Shares (IDDAX), was determined by dividing the $500 million interim distribution by the number of Institutional Shares and Investor Shares outstanding as of February 18, 2021 that were eligible for an initial distribution. For more information, please see Shareholder Notice Regarding the Interim Distribution.
2A.5 (Updated 12/8/22) Will the Fund post an IRS Form 8937 in connection with the interim distribution or the second interim distribution?
2A.6 (Updated 3/8/22) Will Shareholders receive an IRS Form 1099 from the Fund on account of the Interim Distribution?
If a shareholder holds their shares directly with the Fund (not through an intermediary or custodian), then the shareholder can expect to receive an IRS Form 1099-DIV from the Fund. The vast majority of Shareholders hold their shares through an intermediary or custodian and that party will send an IRS Form 1099-DIV for the Interim Distribution.
2A.7 (Updated 6/29/22) How was the per share dollar amount of the second interim distribution determined?
The second interim distribution is being made on a pro rata basis to those shareholders that owned shares as of February 18, 2021 (at end of day) and the per share amount is as follows:
IQDNX (Institutional Shares): $1.2647 per share
IQDAX (Investor Shares): $1.2470 per share
However, each shareholder account will not necessarily receive the full amount per share. In calculating each shareholder’s pro rata share, the Fund will also make offsets based on that shareholder’s net gains from prior acquisitions and redemptions of Fund shares (before February 19, 2021) pursuant to NAVs that the Fund determined were overstated. Similarly, there are a number of current shareholder accounts for which the Fund is holding back the entire second interim distribution based on amounts previously received by that shareholder on one or more prior purchases and redemptions of Fund shares pursuant to a NAV that the Fund has determined was overstated. The Fund provided to each intermediary or custodian the precise dollar amount per share and dollar amount of the second interim distribution for any shareholder account that received less than the full per share amount referenced above. Shareholders who were subject to an offset may request a calculation of their offset by asking their intermediary or custodian to obtain it from the Fund. For more information, please see Shareholder Notice Regarding the Second Interim Distribution. In addition, with respect to all intermediaries and custodians that the Fund has paid the second interim distribution, as of June 29, 2022, the Fund has distributed to the intermediaries and custodians individualized offset calculations for any shareholder account that was subject to an offset in the second interim distribution. Thus, if you did not receive a second interim distribution or received only a partial distribution you may ask your intermediary or custodian to provide a copy of the offset calculation for your specific account(s).
2A.8 (Updated 6/29/22) Where can shareholders obtain more information if they did not receive a distribution or received only a partial distribution due to an offset?
If you have not received a second interim distribution, please check to see if your intermediary or custodian has finished allocating the distribution to customer accounts. If your intermediary or custodian has indicated that you were subject to an offset, you may request a calculation of your offset by asking your intermediary or custodian to obtain your offset calculation from the Fund. The Fund does not have the names or addresses of shareholders who hold their shares through intermediaries or custodians, so shareholder requests by account number must be submitted to the Fund through your intermediary or custodian. With respect to all intermediaries and custodians that the Fund has paid the second interim distribution, as of June 29, 2022, the Fund has distributed to the intermediaries and custodians individualized offset calculations for any shareholder account that was subject to an offset in the second interim distribution. Thus, if you did not receive a second interim distribution or received only a partial distribution you may ask your intermediary or custodian to provide a copy of the offset calculation for your specific account(s).
2A.9 (Updated 5/18/22) How can shareholders or their beneficiaries provide updated account and contact information regarding subsequent transfers?
Shareholders or their beneficiaries may submit updated account and contact information to the custodian or the intermediary of the initial shareholder. The Fund makes distributions to the record shareholders as of February 18, 2021 notwithstanding any subsequent transfers.
3.1 (Revised 3/8/22) 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. Once the Fund’s assets were fully liquidated, the Fund began to analyze any potential claims it may have, including against service providers to the Fund and former shareholders. The Fund has already 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. Whether there are potential 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 process of revaluing of the Fund’s historical NAVs is completed and further analysis of shareholder activity on and before February 18, 2021 is conducted.
On December 20, 2021, the Board approved the creation of a Special Litigation Committee (the “SLC”) for the purpose of investigating and pursuing potential claims on behalf of the Fund. The SLC will carry forward the Fund’s investigation and prosecution of potential claims against service providers to or former shareholders of the Fund. An announcement relating to the SLC can be found here.
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.
As noted above, an essential first step of the assessment of potential claims the Fund may possess is to determine the extent of any misvaluation of the Fund’s assets over time. Based on A&M’s independent valuation, A&M concluded that the Fund’s Bilateral OTC Positions were overstated at each month-end date from February 2017 through January 31, 2021. When A&M’s valuations are used for calculation of the Fund’s NAV, the Fund’s reported month-end NAV was materially overstated by less than 10% prior to October 31, 2019, by more than 10% from October 31, 2019 through January 31, 2021, and for most months in 2020 it was more than 30% overstated. The Fund has provided the A&M revaluation results to the SLC for its investigation and pursuit of potential claims on behalf of the Fund.
3.2 (Revised 3/8/22) Why hasn’t the Fund sued anyone yet for the conduct that led to all this?
The Board created the Special Litigation Committee (the “SLC”) specifically for the purpose of investigating and pursuing potential claims on behalf of the Fund. The Fund anticipates that the SLC will investigate the facts, evaluate the potential claims, and consider the most effective way to assert those claims, including whether the Fund should initiate litigation or other dispute resolution mechanisms. Prior to the creation of the SLC, the Board had sought 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 (and the SLC’s) ability to assert claims in the future. The Board timely sought and obtained extensions of any tolling agreements that were due to expire so that the Fund, and the SLC in particular, would have sufficient time to investigate and pursue potential claims. No tolling agreements ever expired.
4.1 (Revised 12/28/21) 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 or when they have satisfied the requirements under Section 165(g) of the Code and the accompanying regulations (which generally require the shares of the Fund to have become wholly worthless or for a shareholder to have abandoned their interest in the Fund). The deductibility of capital losses is subject to limitations. A final liquidating distribution will not be made in 2021.
4.2 (Revised 9/14/22) 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. The policy had 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 had 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. The remaining coverage available under Infinity Q’s policy is disputed and is the subject of a lawsuit against the insurers in Delaware. On August 15, 2022, the Delaware court presiding over the insurance dispute concerning coverage under Infinity Q’s policy ruled in favor of the insurers and against the insureds (including the Fund), finding that the insurers have no obligation to pay under the Infinity Q policy. The insureds plan to appeal. If the decision is not reversed, the Fund and other insureds will not have coverage under that policy.
4.3 (Updated 11/8/21) Who is exercising oversight over the Fund’s expenses? What is causing variability in the Fund’s expenses on a month-to-month basis?
The Fund’s Board of Trustees exercises oversight over the Fund’s expenses, including professional and shareholder servicing fees. Generally, the variability of Fund expenses is dependent on the amount of services rendered in each particular month. Because the Fund pays invoices in arrears, Fund expenses paid in a particular month were for services rendered in the prior month, with the exception of legal fees paid in July, which covered multiple invoices over several months.
4.4 (Updated 11/8/21) Have the Fund’s assets been liquidated?
As of March 19, 2021, the Fund’s portfolio has been entirely liquidated to cash or cash equivalents pursuant to the Fund’s Asset Liquidation Plan, which became effective on February 25, 2021. Until the Fund distributes all of its assets, the Fund will continue to maintain its status as a regulated investment company.
4.5 (Updated 1/30/23) Is the Fund earning interest income on the cash/reserves?
Pending distribution, the Fund’s assets are invested in the same money market fund utilized by the Fund before the SEC’s Order was issued. For the month ended December 31, 2022, the Fund accrued interest from its money market fund investment in the amount of $1,906,822. After deducting expenses paid in that month, the money market fund interest accrual resulted in an increase in the Fund’s Total Assets from $582,253,231 as of November 30, 2022 to $584,075,169 as of December 31, 2022. Please note that Condition 4 of the SEC’s Order limits the types of investments the Fund can make to U.S. government securities, cash equivalents, and securities eligible for purchase by a registered money market fund with legal maturities not in excess of 90 days.
4.6 (Updated 11/8/21) What guidance can the Fund provide for retirement account investors who cannot withdraw their required minimum distribution for the year?
U.S. shareholders are strongly urged to consult their own tax advisors regarding implications to required minimum distributions, as the Fund (like other mutual funds) does not provide tax advice.
4.7 (Updated 12/30/21) Why did the Fund publish an updated NAV on December 30, 2021 and how was it calculated?
The Fund published an updated NAV on December 30, 2021 in order to reflect the result of the Interim Distribution. Prior to December 30, 2021, the Fund had not published an NAV since February 18, 2021. An explanation of the changes in the Fund’s assets since February 18, 2021 and how the updated NAV was calculated appears below.
It is important for shareholders to understand how the Special Reserve affects the published NAV and future distributions to shareholders under the Plan of Distribution. For purposes of calculating the Fund’s updated NAV, the full amount of the Special Reserve is treated as a liability of the Fund, meaning that the amount of the Fund’s assets subject to the Special Reserve is fully offset by the Special Reserve. Nearly all of the Fund’s assets as of December 1, 2021 in excess of the Special Reserve were distributed to shareholders in the Interim Distribution. The result of those two things—treatment of the Special Reserve as a liability and the distribution of substantially all the Fund’s assets not subject to the Special Reserve—is a NAV of $0.0250 per share for Institutional Class shares and a NAV of $0.0250 per share for Investor Class shares.
This does not mean, however, that going forward shareholders will receive $0.0250 or less per share in further distributions on their shares in the Fund. The amount of any additional distributions of equity interests in the Fund depends on the resolution of the Fund’s potential liabilities, which are provided for in the Special Reserve. As stated in the Plan of Distribution, the Fund is working to resolve the securities litigation and other potential liabilities for which the Special Reserve was established. As those liabilities are resolved by fixing their amount, the Board may be in a position to decrease the Special Reserve, which could permit additional distributions and would affect the amount of future distributions.
Following is a summary of the changes in the Fund’s assets during the relevant period and how the updated NAV per share for each class was calculated:
- The Fund reported net assets as of the close of trading on February 18, 2021 of $1,727,194,949.
- The Fund’s portfolio was fully liquidated as of March 19, 2021, resulting in total assets as of March 25, 2021 of $1,249,485,022 (not including outstanding close-out payments from certain derivatives counterparties).
- As of June 30, 2021, the end of the month in which the Fund submitted its Plan of Distribution to the SEC staff, the total assets of the Fund were $1,248,095,070 and the Special Reserve was $748,699,193. This resulted in the Fund having net assets of $499,395,877.
- As of November 30, 2021, the total assets of the Fund were $1,243,903,362 and the Special Reserve was $744,455,220, resulting in the Fund having net assets of $499,448,142. These reductions in the Fund’s total assets and the Special Reserve are reflected in the Month End Reports posted in the “Shareholder Updates” section of the Fund’s website. The total assets of the Fund also include earnings it receives from the cash-equivalent investments in which the assets are held.
- On December 3, 2021, the Fund commenced making the Interim Distribution in accordance with the Plan of Distribution, and to date has distributed $496,179,609 of the Interim Distribution.
- As of December 30, 2021, the total assets of the Fund were $746,532,717, and the Special Reserve was $743,234,675, resulting in net assets of $3,357,326, which includes $2,804,954 that may be needed to complete the Interim Distribution.
- The net assets of the Fund, $3,357,326, are divided by the total shares outstanding to determine the NAV of $0.0250 as of December 30, 2021.
The Fund will continue to provide monthly reports of the Fund’s total assets, monthly expenses, and the remaining Special Reserve amount. The Fund does not anticipate publishing an updated NAV again in the near future.
4.8 (Updated 3/8/22) Can I redeem my shares in the Fund?
No. Pursuant to an SEC Order dated February 22, 2021, all redemptions are suspended.