A private equity firm agreed to pay a $400,000 fine and reimburse clients for overcharging fund investors over a 16-year period. According to the SEC, the PE firm did not proportionally allocate broken deal, legal, consulting, insurance, and other expenses to co-investors and employee co-investment funds, thereby overcharging investors in their flagship funds. The SEC also accuses the firm of paying portfolio company consulting fees to co-investors, which resulted in lower fee offsets to the detriment of flagship fund investors. The firm voluntarily agreed to reimburse investors for the expenses and the fees following discovery of the misconduct during a 2016 SEC exam. The SEC charges the firm with failing to implement a reasonable compliance program as well as the Advisers Act’s antifraud rules.
If the firm had implemented a reasonable compliance program, discovered the overcharging, and reimbursed clients before the SEC uncovered the violations during an exam, it may have avoided the public enforcement action and resulting fine. Also, a reasonable compliance program may have avoided the overcharging in the first place. C-suite executives should re-think the cowboy mentality that ignores compliance until the SEC or a client makes them change. It’s much less expensive to change the oil every 5000 miles than to replace the engine if it seizes.
This is low-hanging fruit for the SEC Enforcement Division. When you get sloppy with expense allocations and ignore interlocking financial interests, the SEC can easily make its case that the firm acted negligently by failing to implement a sensible compliance program.
Imposing an unusual fee structure raises a red flag for regulators. Skeptical examiners will spend significant time and resources to understand the fees and ensure they are properly calculated and collected.
The SEC censured and fined a private equity manager for lowballing the price offered to liquidate limited partnership interests. The SEC asserts that the private equity manager, through its principal, offered to purchase remaining limited partnership interests at the December 2014 valuation. The SEC faults the firm for failing to revise the price or fully disclose that it had received financial information indicating that the NAV had increased during the first quarter of 2015. The SEC opines that the offer letter, termed “as an accommodation,” made it appear that the limited partners would receive full value for their interests. The SEC charges violations of Rule 206(4)-8, the Advisers Act’s antifraud rule.
OUR TAKE: We generally advise against principal transactions with clients/investors/LPs. Purchasing private interests directly from a client is so rife with conflicts that no amount of disclosure may be sufficient.
OUR TAKE: Without proper disclosure and consent, a transaction that benefits the fund sponsor or its principals will violate the Advisers Act’s fiduciary duty whether or not the investors suffered any harm. This case also highlights the perils of the CCO dual-hat model whereby a senior executive with a pecuniary interest also serves as the Chief Compliance Officer, thereby avoiding independent scrutiny.
OUR TAKE: We have found the staff to be fairly reasonable if a firm misses the deadline by a few days because of an unusual event such as a hard-to-value security or a change in auditors. When you consistently ignore a regulatory requirement and fail to make changes, the Enforcement Division will treat you as a regulatory recidivist and proceed accordingly.
OUR TAKE: The SEC has attacked PE fees and expenses including portfolio monitoring fees, broken deal expenses, overhead costs, and consulting fees. To avoid these issues, PE firms may want to re-think their business models and include all fees and expenses in a higher management fee and carried interest.
OUR TAKE: Private equity firms registered as investment advisers should ensure that portfolio company officers and consultants comply with the Code of Ethics, including reporting of securities transactions and the obligation to maintain the confidentiality of material nonpublic information.