A well known private equity fund was in the midst of soliciting investors for a new fund, Fund IV. The Fund’s track record was strong and the prospects for a successful close were, accordingly, quite promising. The Fund was represented by two well known law firms, one of which was mine. In the course of the solicitation effort, the senior manager of the fund was called by a trade publication for an interview. Inadvertently, the manager, although highly experienced … and the beneficiary of cautions from counsel against violations of the provisions of Regulation D (the safe harbor for most private placements in this country today) banning “general solicitation and general advertising” … was led into discussing the instant financing in terms which the SEC has historically considered “conditioning the market.” The article, when published, quite clearly amounted to general solicitation, thereby denying the fund the Regulation D safe harbor. In such cases, lawyers generally agree that the offering process should be halted for a period of time while the effects of the article are “cooled off.” The problem in this instance, however, had to do with the nature of a private placement on behalf of a private equity fund; the “offering” was by its terms to be open for an extended period of time … months and sometimes years. A typical private placement is closed within a month or two from the date the solicitation process begins; fund placements take much longer, sometimes several years and the offering documents accordingly, announce to investors that the offering is expected to extend for, in the case in point, another nine months. And, of the investors who had been infected by exposure to the offering, several of which had subscribed to acquire limited partnership interests as of the date (far out in the future) claimed for the closing. The understandable conservatism of securities lawyers induced a senior adviser to indicate that, in his view, the firm could not render an opinion to investors that the offering was legally exempt from `33 Act registration requirements unless the cooling off period began at that date … several months out into the future … when the offering by its terms was to conclude. The managers sought my advice and I responded. First, I did the required research, refreshing my memory on the cooling off period and the alternatives to the Reg. D exemption, being Section 4(2) of the 1933 Act. I consulted with a best securities law scholar I knew, a former member of the SEC, an academic and a one time partner of mine, who was able to tee up a little known SEC pronouncement on the cooling off period … one that none of us had noticed because it was buried in a report on hedge funds. I prepared memoranda on both cooling off and Section 4(2) (both later published, see link above), which I then submitted to the another old hand in this business, a member of a national law firm which had not been involved in the instant proceeding. The question was whether, after a 60 day cooling off period … more than adequate under ordinary circumstances according to my research … would be sufficient to allow a knowledgeable and prestigious firm to give the necessary securities act opinion … if such an opinion were, indeed, requested. It was not at all certain that counsel for one or more of the investors would require that opinion; but it was obviously necessary that one be ready as of the closing date, were it requested. As my academic colleague noted violations of general solicitation and, indeed, general advertising took place all the time in today’s culture. The SEC was long overdue revising its regulations; counsel and placement agents were anxiously awaiting the anticipated revision which the Commission Staff had hinted at; but it had not happened yet. Counsel to whom I referred the issue was a quick study, being knowledgeable in the area after many years of practice, and concluded that, based on my research as applied to the facts, he and his firm could opine … an opinion not, as luck would have it, in fact needed. That settled the matter … settled it within the 60 day cooling off period, and the process went forward successfully