De Minimis Exemption Inhibiting Funds

Quite a number of collective investment vehicles, including funds, and other entities that may not be viewed by the CFTC as "operating companies" may, in the absence of specific relief or an available exemption, be a "commodity pool." Many entities rely on the CFTC's Rule 4.13 de minimis exemption (given their limited use of swaps or commodity interests) from the commodity pool characterization. Reliance on the de minimis exemption is subject to satisfaction of various conditions, including that fund interests not be offered publicly. Is a 506(c) offering a "public offering" for purposes of this rule? In the absence of clarification from the CFTC, many who rely on this exemption will not be able to avail themselves of the ability to use general solicitation or general advertising.