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Massachusetts Fines Large BD $1 Million for Sales Contest


The Massachusetts Securities Division fined a large broker-dealer $1 Million for compensating financial advisers to encourage clients to open securities-based lending accounts at an affiliated private bank.  The MSD asserts that the firm violated its own policies against sales contests and failed to quickly stop the program after Compliance raised objections.  The MSD cites statistics showing significant growth in securities-based lending associated with the program.  The MSD charges supervisory violations and failure to ensure “commercial honor and just and equitable principles of trade.”

OUR TAKE: The MSD could not assert a suitability violation because the securities-based lending accounts are not securities.  Instead, the regulator employed the “equitable principles” catch-all doctrine, which looks very much like a fiduciary standard.  Even if the DoL rule dies and the SEC refuses to move on a fiduciary standard, watch out for the state regulators.


Unregistered Fund Manager Still Liable for Breach of Fiduciary Duty


The SEC fined and barred the principal of an unregistered private fund manager for breaching his fiduciary duty by failing to disclose that affiliate intermediaries profited from fund transactions.  The SEC alleges that the respondent used affiliate companies as intermediaries for the buying and selling oil and gas royalty interests and that the affiliates collected significant profits.  The SEC charges the firm with failing to disclose these transactions, instead telling investors that the fund would receive the best price possible and that any affiliate transaction would be conducted at arm’s length.  Even though the fund manager was not registered, the SEC accused him of violating the Advisers Act because he engaged in advisory activities and breached his fiduciary duty of full disclosure.

OUR TAKE: Private fund managers maintain accountability for alleged breaches of fiduciary duty even if not registered.  This includes conduct that pre-dates Dodd-Frank’s registration requirements.  Also, it is unclear how much disclosure is enough to allow affiliate transactions.


The Friday List: 10 Private Equity Practices that Cause Regulatory Problems

the list

The Friday List: 10 Private Equity Practices that Cause Regulatory Problems

Today, we offer our “Friday List,” an occasional feature summarizing a topic significant to investment management professionals interested in regulatory issues.  Our Friday Lists are an expanded “Our Take” on a particular subject, offering our unique (and sometimes controversial) perspective on an industry topic.

The private equity industry has seen increased SEC scrutiny and several significant enforcement actions since the adviser registration requirement went into effect in 2012.  In today’s list, we offer 10 PE practices that have caused regulatory problems for registered PE firms.


10 Private Equity Practices that Cause Regulatory Problems

  1. Direct transactions with portfolio companies. The SEC will highly scrutinize affiliate loans to portfolio companies, consulting arrangements with affiliates, and insiders serving as officers.
  2. Varying seniority rights for LPs. Giving preferential treatment to certain LPs (especially insider co-investors) will violate a fiduciary’s obligation to treat all clients equally.
  3. Mis-allocating co-investor expenses. Insider co-investors must bear the same expense allocations as outside LPs.
  4. Accelerating portfolio monitoring fees.  The SEC has brought at least 2 significant cases for failing to fully disclose how LPs will absorb accelerated portfolio monitoring fees incurred after a liquidation event.
  5. Charging broken deal expenses. The SEC views this practice as another way for a fiduciary to illegally line its own pockets at the expense of LPs.
  6. Legal fee discounts. Getting lower rates from your law firm (and other service providers) because they work on the funds violates your fiduciary duty.
  7. Overcharging overhead expenses. Several firms have been cited for taking overhead expenses out of the funds without adequate disclosure.
  8. Cross-portfolio transactions. Transactions between funds including interfund lending or cross-trading will violate the Advisers Act.
  9. Not registering as broker-dealer.  Investment banking activities for portfolio companies require broker-dealer registration.
  10. Weak compliance program.  Several PE firms failed to hire a competent and dedicated CCO to implement a specific Advisers Act compliance program.

Adviser Barred in Connection with Receiving Asset-Based Fees and Commissions


The SEC fined and barred the principal of an investment adviser for lying to clients about why he made investment recommendations and changed custodians.  According to the SEC, the respondent recommended that clients move assets to a proprietary fund from a third-party fund because he could no longer receive trail commissions from the third party fund.  The SEC also faults the respondent for failing to explain to clients that he had to change custodians because the incumbent custodian terminated its relationship due to a prior regulatory action.   The adviser failed to “disclose important facts to his clients so they could make their own informed decisions.”

OUR TAKE: An adviser walks a very treacherous regulatory path when it charges a client both asset-based fees and commissions.  It is possible that no amount of disclosure could cure this inherent conflict of interest that compromises an adviser’s fiduciary responsibility.