In early April 2014, the Securities and Exchange Commission (SEC) announced the formation of a new unit within its Office of Compliance Inspections and Examinations (OCIE) that will be dedicated to the examination of private equity and hedge funds. To run the new unit, the SEC asked Congress in its proposed fiscal year 2015 budget for funding to add 316 additional staff members to OCIE. This influx of new staff would nearly double the number of SEC examiners, accountants and lawyers already focusing on investment advisers and companies. In making the budget request before a panel from the House Appropriations Committee, SEC Chair Mary Jo White did not mince words: “There is an immediate and pressing need for significant additional resources to permit the SEC to increase its examination coverage of registered investment advisers so as to better protect investors and our markets.” But protect them from what? Why is the SEC doubling down to this extent when it has been steadily increasing numbers, expertise and enforcement activity in the private funds space since Dodd-Frank put an end to the pre-Madoff bacchanal?
According to Chair White, in spite of the measures the SEC has been taking since 2010 to increase the depth of its understanding of the private funds world and the number of staff available to examine and enforce in this arena, the SEC only managed to inspect 9 percent of all registered investment advisers during fiscal year 2013. Part of the problem, which we discuss in more detail below, is pure numbers: the number of hedge and private equity fund managers registered with the SEC has increased dramatically as a result of Dodd-Frank. And certainly private equity funds have complex fee structures and hold illiquid assets that are difficult to value versus publicly traded securities, all making evaluating compliance more challenging and time-consuming, and more dependent on specialized knowledge. But it also appears that the SEC staff is motivated by some rather unsavory events that have taken place in the private funds world recently, which read like a new book by Michael Lewis. Just a glimpse at some of the recent targets of enforcement actions helps explain why the SEC has placed the entire private investment funds industry under unprecedented scrutiny.
Take, for example, “Don’t Due Diligence,” where in late January 2014 the SEC froze the assets of a private equity fund and its principal, alleging that the manager had diverted nearly $10 million of investor assets via a sham due diligence arrangement whereby the manager used fund assets to pay fake fees to a front company controlled by his buddy (and co-profiteer). The manager rented luxurious office space, projected an image of being a world-class international PE superstar and generally treated his investors’ dollars “as his own personal and professional slush fund.” When the fund’s auditors began to balk at what they perceived as nebulous due diligence fees, the two gentlemen repeatedly lied to the auditors and forged documents to cover their tracks.1
Or consider the February 2014 saga “‘Clean’ Energy,” in which the SEC brought charges against a private equity fund manager who manages funds that invest in private power production plants, alleging that the manager misused more than $3 million in investor assets in the funds without disclosing anything about such expense allocation to investors, and, when the funds ran out of money to pay these improperly allocated expenses, lent money to them at absurdly high interest rates (around 17 percent), even pledging fund assets as collateral. According to the SEC, the misallocated funds were used for rent, salaries, bonuses and even tuition costs. To top it all off, the manager lied to investors about the extent to which he had “skin in the game,” telling them he and his cofounder had each invested $100,000 in one of the funds, when in fact it was $25,000 apiece. The SEC has charged him with willful violations of the securities laws’ antifraud provisions as well as disclosure, compliance, custody and reporting violations.2 This case in particular points to an area where the SEC has recently promised to apply relentless scrutiny and which we discuss below: expense allocation.
These are only two examples. It is clear from the relatively high number of actions brought and settlements made in a relatively short period that the SEC is set on implementing its stated goal of protecting investors by making fund managers personally accountable for their nefarious activities. In early 2013, the then-chief of the Asset Management Unit warned fund managers that “it is not unreasonable to think that the number of cases involving private equity will increase.”3 In early May 2014, the SEC announced that Andrew Bowden would take over as head of OCIE, where, according to Chair White, he will lead an “aggressive, effective examination program.”4 Now, with its knowledge further bolstered, OCIE captained by a leader committed to aggressively eliminating violations in the funds space, and its expertise housed centrally as opposed to scattered throughout its divisions as a result of the formation of the private funds unit, the SEC will assuredly continue its march to root out not just blatant fraud but also disclosure, compliance and reporting violations. A few egregious actors have pulled the private equity and hedge funds industry further into the spotlight. At the same time, the SEC is working hard to resuscitate its image as an authority to be taken seriously. In this new environment, fund managers will have to become even more diligent and proactive in their disclosure and compliance efforts, and more transparent in their valuation methodologies and practices, in order to stay on the right side of the regulators.5
A Brief History of SEC (Non)Enforcement and Dodd-Frank’s Changes
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) upended the traditional hands-off regulatory regime for private funds. Mutual funds have been highly regulated under the Investment Advisers Act of 1940 (Advisers Act) since that act’s passage, but until the implementation of Dodd-Frank, advisers of private equity funds typically relied on a private adviser exemption to avoid the registration, reporting and recordkeeping requirements of Advisers Act.6 Registration was not required as long as an adviser had fewer than fifteen “clients” during the preceding 12 months, did not hold itself out to the public as an investment adviser, and did not act as an adviser to a company registered under the Investment Company Act of 1940 (’40 Act).”7 Whatever this was intended to accomplish at the time notwithstanding, the practical effect of this – by the time Dodd-Frank was passed and Madoff was carted off to Butner – was that a single management company, i.e., the same principals, general partner or management company, could escape the regulatory ambit of the SEC by advising fewer than 15 individual private equity funds, each of which was exempt from registration through either Section (3)(c)(1) or (3)(c)(7), and by counting each fund, rather than each investor in each fund, as a client.8
Dodd-Frank put an end to much of the unregulated private funds universe by repealing the private adviser exemption for all funds with more than $150 million in assets under management.9 This legislative change, coupled with the recent growth of the private equity industry generally, has meant that the number of advisers registered with the SEC has shot up (estimates are about 1,500 new registrants since the new law became effective). Alongside this expansion of the number of private equity funds subject to SEC registration requirements and oversight came increased scrutiny into the actual practices of private equity funds and stronger enforcement of the securities laws with respect to them.
In 2010, the SEC created five units in its Enforcement Division, one of which is the Asset Management Unit (AMU), which has been responsible for reviewing and investigating the private equity industry. With a staff of 75 people across 11 offices, the AMU is at present the largest unit in the Enforcement Division. At the same time it created the AMU, the SEC embarked on a project of strengthening its expertise in the private equity industry by hiring industry specialists and subject-matter experts, among them fund managers and attorneys with practical asset management experience. Think whatever you want about Rolling Stone magazine’s credibility as a source on U.S. government regulation of the financial industry, but no doubt being called “aggressively clueless” hurts, and the SEC has been working to combat its image. (Even Madoff himself was amazed that regulators failed to detect his breathtakingly large and long-lived Ponzi scheme.) The AMU and its knowledgeable staff got the ball rolling on enabling the SEC to identify cases early and understand complex issues and tensions. The SEC also introduced Risk Analytics Initiatives, which seek “to proactively detect problematic conduct through the use of data and quantitative methods and applies these in its investigations” to aid its larger and better-informed staff.10 In short, the SEC has substantially beefed up its ability to spot certain key indicators of fraud in the private equity space: abnormal fee calculation, inadequate disclosure to investors, unsubstantiated valuations and opaque expense allocations. A larger and more technically proficient staff will likely also enable the SEC’s rulemaking abilities to keep pace better with industry changes. The recent announcement of the new private funds unit simply underscores all of the SEC’s recent moves to strengthen and broaden its ability to understand, monitor and enforce in the PE space.
Given the salacious details of the recent actions and settlements, and the harm done to its image during the Madoff affair (and the unfortunately contemporaneous pornography scandal), it is not surprising that the SEC is seeking to be taken seriously, and is planning to pour additional resources into this private funds campaign.
Why Is Private Equity in Particular a Hot Topic for the SEC?
Beyond just general industry growth, there are several factors – both market- and industry-based – that help to explain why private equity (and private funds, generally) have recently drawn the attention of the regulators. No longer an inchoate or maturing sector, private equity now has as many, if not more, assets under management than the hedge fund industry.11 As one would expect, the growth spurt from KKR’s inception to our present atmosphere of commoditized forms (more so in venture capital, but also in PE) and competition to get a slice of investments has resulted in a plethora of funds with similar investment strategies; the world, after all, is not limitless. Had the pre-recession explosive growth continued apace, this might not have been a problem, but the economic downturn caused a contraction in accessible capital, due to both losses and caution.12 Many funds were squeezed, and newer funds were hit particularly hard because in more challenging times investors tend to stick with established funds that have provided consistent returns rather than experimenting with new funds.13 Although the economy is recovering, few would apply the term “heady” to the current PE investing atmosphere. The SEC is concerned that, to attract investment dollars in a challenging environment, new fund managers may be motivated to exaggerate their ability to provide higher returns by deliberately miscommunicating with investors or presenting misleading valuations or track records. Conversely, many established funds have significant capital overhang due to the increased number of funds chasing a limited number of deals – again, partially a result of the downturn but also the natural progression of events in a maturing industry. The SEC is just as concerned that, in order to avoid the expiration of capital, fund managers may engage in activities that are not necessarily in the best interest of investors as a fund ages. Further, since private equity funds tend to have very few opportunities for liquidity, and their terms are relatively long, investors can become less and less engaged, and provide or demand less oversight, over the life of a fund.14 Lastly, private equity funds often offer little transparency to investors with respect to portfolio companies and the mechanisms with which fund managers value their funds’ investments. Combined, all of these factors make private equity, in the SEC’s view, particularly susceptible to fraud.
All of the above hypothetical scenarios illustrate the obvious tension between the profitability of the general partner or management company and the best interest of investors. Moreover, the SEC’s concerns have been playing out in the industry in the following specific behaviors by funds and fund managers:
shifting of expenses from management company to fund, e.g., where a manager used fund assets to pay for his own defense in an SEC action brought against a related fund15
charging additional management fees where allowable fees are poorly defined in a fund’s operating agreement, or other generally improper fees16
managing different investors and products under the same “umbrella,” which can lead to cost-shifting between funds, e.g., broken deal expenses covered by a future fund or organizational expenses borne by comingled vehicles, or inappropriate cost avoidance by preferred investors17
usurping investment opportunities from investors or executing related-party transactions with indifference to the best interests of investors, and18
presenting misleading valuations, e.g., exaggerating the performance and quality of holdings, at any point over the life of a fund, including during marketing or after interim inquiries are made by investors or potential new investors.19
The SEC has also focused attention on so-called “zombie funds,” moribund funds that provide neither liquidity nor returns from the funds’ remaining assets to their investors, yet continue to charge fees even though the likelihood of profits from assets has disappeared. While zombie funds are not per se illegal, they are hard to price and provide an obvious incentive for managers to not act in accordance with the best interests of fund investors and instead engage in inappropriate behavior vis-à-vis investors and fund assets.20
I Am a Fund Manager: What Can I Do to Meet the New Standards?
Though the list of types of violations the SEC intends to pursue is lengthy, funds can take certain steps to help ensure that their activities do not run afoul of the securities laws, and more nimbly resolve any potential conflict of interest or valuation issues that may arise.
Compliance Policies and Mock Audits
Compliance is crucial to running a tight ship in the new environment. Funds need to implement and maintain well-designed compliance policies. This goes beyond merely appointing a “chief compliance officer” who reports to the fund’s board as mandated by the Advisers Act. Funds should work to produce compliance manuals that detail the fund’s policies and procedures, and review them annually (also as mandated by the Advisers Act), making sure to keep proper records of the review process and results, and any ensuing fixes. Fund managers should also work to create internal monitoring systems tailored to a fund’s structure or strategy, such that the monitoring will actually succeed in identifying any problematic behavior or possible regulatory violations.
One tactic that may help emphasize the importance of compliance and also test how the fund might perform if questioned by the SEC is a mock audit conducted by someone at the fund other than the architect of the compliance manual.
Funds should consider periodically testing valuation methodologies and using non-portfolio manager officers or employees to establish valuations to avoid the appearance of conflict. One step further would be to work with a third-party firm to identify areas that could appear to be problematic, in order to be better prepared for questions.
Investor Advocacy: Limited Partner Advisory Committee
Another tactic for avoiding the appearance of conflicts is to establish and rely on a Limited Partnership Advisory Committee to review and approve certain activities, e.g., investing outside the stated thresholds for certain types of investments, investing in portfolio companies in which affiliates of the fund’s managers or management entity are also investing, or even extending the fund’s term. Having a Limited Partnership Advisory Committee, comprised of members who are independent of the management team and any conflict, approve the conflicted transaction can be helpful in demonstrating good faith to the regulators in the event of an examination or enforcement action. Further, COOs, CFOs, CCOs and other risk management officers are critical in protecting investor interests and can act as continuing “investor advocates.”21
Expenses: A Conundrum
At the 2014 Private Equity International conference, the SEC announced its new posture on disclosure of expenses in private equity funds: zero tolerance. Now, if OCIE Director Andrew Bowden’s speech at the conference is any indication, even the most properly detailed allocations between fund and management company still may not pass muster in the face of an examination. Problematically, funds whose partnership agreements or other formation documents were drafted before new procedures or expenses were even contemplated by management may not be able to rely on standard catch-all provisions to protect them from SEC action. Fund management will need to be increasingly vigilant in parsing and explaining how investor dollars may be used, and should review current fund documents to make sure that expenses provisions meticulously set forth the allocations between the management company and the fund. Going forward, partnership agreements will need to contain explicit terms that address precisely how investor dollars will be used. As for how to work with current agreements that contain standard catch-all provisions, we fear that the new regime will require significantly more amendments to existing documents.
The SEC does not expect to eliminate conflicts – they are inherent in the space. Instead, we believe the regulators are seeking to force funds to adopt cultures of compliance and accurate disclosure, in which managers and funds address potential conflicts in good faith and transparently, and make sure investors know precisely how their investments are being managed.
The SEC’s focus on private equity funds and managers is not likely to dissipate soon. Rather, the incidence of examinations is likely to continue to increase with the growth of SEC resources dedicated to enforcement in the private funds context. Also, the more frequently senior SEC officials make speeches on the subject, the more the examination staff will be motivated to find problems, and the more the enforcement staff will be compelled to bring cases. To the extent that fund managers are able to take corrective steps to address any deficiencies and violations identified during an exam, such efforts will make it less likely that a formal inquiry will be initiated. The SEC urges funds to be prepared for exam inquiries. The better prepared a fund is, and the more aware it is of the SEC’s hot-button issues, the less likely it is that a fund and its managers will become ensnared in an SEC enforcement investigation and find themselves the subjects of a new book.
1 Securities and Exchange Commission, SEC Charges Manhattan-Based Private Equity Manager with Stealing $9 Million in Investor Funds, http://www.sec.gov/News/PressRelease/Detail/PressRelease/1370540703682.
2Securities and Exchange Commission, SEC Announces Charges Against Arizona-Based Private Equity Fund Manager in Expense Misallocation Scheme, http://www.sec.gov/News/PressRelease/Detail/PressRelease/1370540849548#.UzDEpfRdX-g
3 Bruce Karpati, Private Equity Enforcement Concerns, Securities and Exchange Commission http://www.sec.gov/News/Speech/Detail/Speech/1365171492120.
4 Securities and Exchange Commission, SEC Names Andrew Bowden As Director of National Exam Program, https://www.sec.gov/News/PressRelease/Detail/PressRelease/1365171514170#.U3YqDvldUqQ.
6 Exemptions for Advisers to Venture Capital Funds, Private Fund Advisers with Less Than $150 Million in Assets Under Management, and Foreign Private Advisers, Securities and Exchange Commission, Investment Advisers Act Release No. 3222 (June 22, 2011); Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 §408.
9 Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 §403.
11 Private Equity Enforcement Concerns, http://www.sec.gov/News/Speech/Detail/Speech/1365171492120.
12 Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 §403.
14 Private Equity Enforcement Concerns, http://www.sec.gov/News/Speech/Detail/Speech/1365171492120.
15 In re Pinkas, Adm. Proc. File No. 3-14759 (instituted Feb. 15, 2012); see also Securities and Exchange Commission, SEC Announces Charges Against Arizona-Based Private Equity Fund Manager in Expense Misallocation Scheme, above.
16 SEC v. Onyx Capital Advisors, LLC, No. 10-cv-11633 (E.D. Mich. filed Apr. 22, 2010).
17 Private Equity Enforcement Concerns, http://www.sec.gov/News/Speech/Detail/Speech/1365171492120.
18 In re Crisp, Adm. Proc. File No. 3-14520 (instituted Aug. 30, 2012).
19 SEC v. Yorkville Advisors, No. 12 Civ. 7728 (S.D.N.Y. filed Oct. 17, 2012) (while this action pertains to a hedge fund, the SEC Enforcement Division’s former Asset Management Unit Chief, Bruce Karpati, believes the issues to be very similar to those seen in private equity); SEC v. Resources Planning Group, Inc., No. 12-cv-9509 (N.D. Ill. filed Nov. 23, 2012).
20 Private Equity Enforcement Concerns, http://www.sec.gov/News/Speech/Detail/Speech/1365171492120.