Recent Enforcement Action Provides Helpful Guidance in Several Areas for Advisers to Private Funds
In April and May 2020, the Securities and Exchange Commission (the “Commission”) entered a series of settled Orders assessing fines, instituting a bar, and ordering remedial action against registered investment advisers (“RIAs”) and/or their principals for conduct relating to fee and conflicts disclosures, charging performance-based fees, advertising (including the use of testimonials and performance information), trading on material non-public information (“MNPI”) and the custody rule.1
While the underlying topics have long been areas of focus, these actions provide a fresh look at the Enforcement Division's current approach to these issues, including its willingness to bring cases for what industry participants might view as stale and/or “technical” violations (i.e., events from many years ago or instances where there was no clear client nor market harm).
This Alert summarizes six Orders, including take-aways from each:2
On April 22, 2020, the Commission found that Monomoy Capital Management, L.P. (“Monomoy”), a private equity fund adviser, violated Sections 206(2)3 of the Investment Advisers Act of 1940, as amended (“Advisers Act”) and imposed a $200,000 fine and ordered nearly $2 million in disgorgement (including interest). The conduct at issue occurred between April 2012 and December 2016.
The Commission concluded that Monomoy failed to adequately disclose fees that it charged portfolio companies held by private equity funds that it managed4; the fees (sometimes fashioned as reimbursements) related to operational and “business improvement” services provided by Monomoy to the portfolio companies.
The Commission found that marketing materials used to raise investments for Monomoy's second private equity fund5 touted its provision of operational services to portfolio companies as something done to enhance value and generate better investment returns for the fund (rather than as a separate source of revenue in the form of fees collected for providing those services). The reimbursements/fee assessments from the portfolio companies represented 13.3% of all revenue Monomoy received with respect to its management of this fund. The Order further noted that Monomoy failed to properly disclose to prospective investors in the fund the conflicts of interest posed by Monomoy providing operational services for a fee to portfolio companies owned by the fund.
The limited partnership agreement relative to this fund disclosed that portfolio companies were responsible for paying Monomoy certain fees, including “closing fees, investment banking fees, placement fees, monitoring fees, consulting fees, directors fees and other similar fees.” The Commission concluded that this disclosure was not sufficiently specific to enable investors to understand the conflict of interest(s) posed nor to have a basis upon which they could “consent to or reject this practice.”
Furthermore, beginning in March 2014, Monomoy's Form ADV disclosed that Monomoy may provide portfolio companies services that other third parties might typically perform and that Monomoy may be reimbursed for costs related to such services. However, the Commission found that Monomoy routinely provided such services and was routinely paid/reimbursed for such services.6
The Enforcement Division remains laser focused on, and suspicious of, the use of “may” in disclosure documents. If something will happen at least some of the time, then saying that it “may” happen is likely to be considered misleading. Revising disclosure documents requires more than finding and replacing the word “may.” When replacing a “may” disclosure, advisers should consider whether it is appropriate to add a sentence or two that explains what it knows and does not know about the specific circumstances that give rise to a specific disclosure.
The Commission seems to be continuously raising its expectations for specificity within disclosure documents, both for the adviser and governing documents relative to private funds. Advisers and private funds should consider conducting a holistic review of offering materials and disclosure documents to determine whether revisions are necessary to align with the Commission's current expectations. This is especially true for any RIAs that have not been examined by OCIE for several years.
When conflicts disclosures are amended within the Form ADV Part 2 brochure, careful consideration should be given to whether that disclosure warrants inclusion in the Material Changes section. When in doubt, include it.
The Commission can and will take action relative to registrants even when the adviser's conduct did not result in any client or market harm.
On April 30, 2020, the Commission found that Everest Capital LLC, an adviser to pooled investment vehicles, and its principal (collectively, “Everest”), violated Sections 206(2) and 206(4)7 of the Advisers Act, as well as Rule 206(4)-88, and imposed a monetary penalty of $750,000 and ordered nearly $2.5 million in disgorgement (including interest).
The Commission concluded that Everest had managed the Everest Capital Global Fund, L.P. (the “Fund”) inconsistently with disclosures made regarding investment concentration and risk controls in the private offering memorandum (the “POM”) for the Fund.9
The conduct at issue occurred between September 4, 2014 and January 15, 2015; Everest withdrew its registration as an RIA on February 26, 2016. This is indicative of the Commission's willingness to continue to pursue cases against defunct advisers relative to conduct more than five years old (and by extension, the Enforcement Division's continued reliance on tolling agreements, SCOTUS rebukes notwithstanding.10).
The POM distributed to prospective Fund investors stated that the Fund invested “principally in equities,” would not take concentrated positions in any specific region, and had in place a risk management team empowered to act unilaterally to reduce risk independent of the investment team's actions. Everest represented that its investing strategy was informed by lessons learned in 1998, when the Fund sustained substantial losses due to highly concentrated positions in Russian investments. The POM also included broad disclaimers, e.g., that investors should be prepared to bear “the loss of their entire investment” and that there were “no restrictions on the Fund's use of leverage other than restrictions which may be imposed by lenders from time to time.”
Everest took a highly concentrated position in a euro to Swiss franc exchange, which caused the Fund's gross exposure in the EUR/CHF position to be between 400% and 900%, bringing the Fund's overall leverage to as much as 1300%. Additionally, the risk management team had no ability to reduce risk relative to the EUR/CHF currency position.
Everest had internal risk grids and protocols (that were the basis for the statements in the POM), however, these grids and protocols did not relate to currency trades, and as such currency trades were not subject to risk monitoring, risk limits, risk review, nor automatic, independent risk reduction measures. Everest did not disclose that currency trades were excluded from its internal risk grids and protocols.11
Everest also distributed written, monthly presentations to current and prospective investors that included misstatements about the Fund's gross exposure because the figures excluded currency positions, including the EUR/CHF position, and did not disclose such exclusion.12 The Commission pointed to these presentations as its basis for concluding that Everest mislead Fund investors regarding its highly concentrated position relative to a specific region (i.e., Switzerland) (which the POM said it would not do) and the potential risk posed by that position.
When the franc moved against the euro, the highly levered, single EUR/CHF currency position caused the Fund to incur losses that exceeded its total assets, forcing closure of the Fund.
There are limited requirements regarding what disclosures or statements an adviser to a pooled investment vehicle must make to investors in that fund; but every statement must be accurate and not misleading. More simply stated: You don't have to say much, but anything you say better be entirely accurate and complete.
Statements in offering materials such as “investors should be prepared to lose their entire investment” will not inoculate against regulatory action for losses that result from conduct that is otherwise inconsistent with representations made to investors in the fund.
To be effective, risk management processes should address all products and strategies utilized by an adviser in managing a fund's assets and not just those most often utilized. This requires regularly re-assessing processes in light of any changes to products, strategies, or models utilized by the adviser.
On May 14, 2020, the Texas State Securities Board (“Board”) entered an order reprimanding and fining Lorintine Capital, LP (“Lorintine”), a state registered investment adviser13 to more than 250 SMAs and two private funds; about one-third of the SMA clients were also invested in at least one of the funds, including LC Diversified Fund 1 (“Fund 1”), which was established by Lorintine. The Board concluded that Lorintine violated Section 116.1 Advisory Fee Requirements14, and Section 116.10 Supervisory Requirements of the Board Rules.15
The private placement memorandum and subscription agreement for Fund 1 disclosed to investors that they would be charged an annual management fee equal to one percent of the value of their position in the fund, and a 10% performance fee. Texas state law, and federal law,16 only allows advisers to charge performance fees to certain types of clients (e.g., “qualified clients”). In Texas, the designation of a “qualified” client is a significantly higher threshold than that of an accredited investor. However, Lorintine's processes for confirming investors' status was limited to confirming that the investor met accredited standard (but not whether the client met the definition of a qualified client). The Board determined that Lorintine received $2,845.45 in performance fees from five non-qualified clients.
While the fine amount was modest ($10,000), Lorintine will now be required to report the regulatory action taken against it on its Form ADV Parts 1 and 2, and could face further inquiry from its regulators in other states.
Whether subject to federal or state regulation, when structuring subscription documents for a private fund, it is critical to understand an investor's status and only assess performance fees to qualified clients. It is also important to have a written policy explaining the adviser's process in determining and verifying whether an investor is a qualified client or accredited investor and maintaining documentation that evidences implementation and compliance with such process.
On May 1, 2020, the Commission entered an Order against a RIA and several related entities and parties for violations of Section 10b of the Securities Exchange Act of 1934, as amended (“Exchange Act”), Rule 10b-5 of the Exchange Act, and Sections 206(1) and 206(2) of the Advisers Act following the use of inaccurate performance data and testimonials in advertising materials. Respondent Kirkland, the RIA, was barred, each natural person respondent was fined $40,000, and all respondents were ordered to cease-and desist future violations. As a result of the statutory violations set out in the Order, all will now be treated as a “bad actor” under various provisions of the federal and state's securities laws including the safe harbor provision of Regulation D (unless and until a waiver from such classification is obtained).
Kirkland acted as an investment adviser by selling a subscription service for options trading signals that her clients could use to trade. Davis managed all aspects of the service through his company, which fulfilled and administered the subscriptions as well as generated trade signals with Kirkland's input. Schmidt provided the platform to market and sell subscriptions through his company but he never interfaced with clients nor created the performance track records used to promote Kirkland's services. Kirkland, Davis and Schmidt shared the profits from the subscription services.
Marketing materials for the subscription service touted an “83% win-rate,” annual returns of 910%, and Kirkland's personal success using the underlying strategy to make millions. The Commission found that Kirkland and Davis knew, or were reckless in not knowing, that their claims were false and misleading because: (1) investors complained that their accounts produced substantially lower success rates than advertised; and (2) the performance results were based on hypothetical data and signal parameters selected in hindsight, which they marketed as the entire historical records, and produced artificially strong performance.
Marketing materials also used testimonials that were falsely presented as relating to one subscription service when they related to a different service offered in the past. Testimonials were used after the clients who provided the statements expressly asked that they be removed given trading losses incurred by those clients.18
Schmidt was held responsible for incorporating the false and misleading claims, performance results, and testimonials without verifying their accuracy.
When using performance data in marketing materials, RIAs must fully disclose the basis and methodology on how the RIA generated the performance results to investors and potential investors. Disclosure can be more difficult when using hypothetical, back-tested data to generate performance results.
When using model performance in advertising, the Commission will consider a number of factors when examining whether such performance is fraudulent or misleading, including, but not limited to, the limitations inherent in the model, any material changes in the model, the relationship to actual services, and whether the actual results are materially different.19
Receiving information from others does not alleviate a person's responsibility to ensure any statements made in the provision of investment advice and/or offer or sale of a security is accurate and complete.
Orders with seemingly modest sanctions (e.g., a fine of $40,000) can nonetheless carry extraordinary collateral consequences in the form of statutory disqualification depending on the regulations that a respondent is found to have violated.
On April 22, 2020, the Commission censured TSP Capital Management Group, LLC, (“TSP”), a private fund adviser, for violating Section 206(4) of the Advisers Act and Rules 206(4)-2 (the “Custody Rule”)20 and 206(4)-7, and imposed a $60,000 fine. The conduct at issue occurred between 2014 and 2018.
The Commission found that TSP violated the Custody Rule by failing to provide annual audited financial statements to investors of a private fund it advised and violated Rule 206(4)-7 for failing to adopt and implement written policies and procedures reasonably designed to prevent violations of the Advisers Act.
The Order notes that TSP apparently intended to rely on an alternative method for complying with the Custody Rule that is available to advisers to limited partnerships or other types of pooled investment vehicles as provided under Rule 206(4)-2(b)(4), namely the Audited Financials Alternative. Specifically, the Order describes a pattern of TSP making various attempts at compliance but ultimately failing to comply with or to timely comply with the requirement that a PCAOB-registered firm conduct an annual audit and that the resulting financial statements from those audits be delivered to fund investors within 120 days of the end of the fiscal year. TSP repeatedly mailed the fund's audited financials hundreds of days late or failed to do so entirely.
The Custody Rule is a consistent, recurring topic in OCIE examinations; it is often flagged in post examination deficiency letters, and is often misunderstood by RIAs.
Advisers should consider conducting a holistic review of their business model(s) and accounts to affirm that they understand and are complying with all applicable aspects of the Custody Rule (including surprise exams, auditor requirements, and inadvertent custody).
Technical violations, even in the absence of client harm or malfeasance by the RIA, can still result in a registrant having to engage in the resource-intensive process of responding to a regulatory enforcement matter. The fine amount assessed likely pales in comparison to the legal costs, employee time, and strain associated with responding to the inquiry, as well as the reputational ramifications for the adviser resulting from a public, formal order reportable on its Form ADV.
On May 26, 2020, the Commission found that Ares Management LLC, (“Ares”) violated Sections 204A and 206(4)-7 of the Advisers Act and assessed a $1 million fine for having failed to “establish, maintain, and enforce written policies and procedures reasonably designed, taking into consideration the nature of such investment adviser's business, to prevent the misuse of material, nonpublic information by” Ares or any person associated with Ares. The primary conduct that gave rise to the action occurred in 2016.The Enforcement Division commenced its investigation in 2019.21
Ares is a global alternative asset manager with more than $149 billion in AUM across credit, private equity, and real estate asset groups; its clients include pooled investment vehicles (both public and private funds) and SMAs.
As detailed in the Order, Ares had extensive policies and procedures regarding MNPI, including maintenance of a restricted list, processes for the compliance team's review of trading relative to securities on the restricted list and documentation regarding that review, and systematic hard blocks within its order entry system tied to the restricted list.
Notwithstanding, the Commission concluded that the implementation of the policies was “left to the discretion of Ares' compliance staff” resulting in inconsistent implementation, insufficient documentation and ambiguity.22
The Commission also found that Ares' policies and procedures did not address issues specific to an Ares representative having a dual role as a director of a publically-traded portfolio company and as an Ares employee, particularly where that person remained involved in Ares' trading decisions regarding the portfolio company's stock. This apparently resulted from Ares personnel previously having not commonly held seats on the board of publicly-listed companies.
The Ares Order dedicates a lengthy paragraph to explaining the impressive efforts voluntarily undertaken by Ares to cure its compliance oversights, including retention of an outside consultant to review and revise its policies, procedures, and supervisory system regarding handling of MNPI, enhanced training programs, and cooperation with the Commission's staff. These efforts may explain why the Commission determined it appropriate to use its discretion to agree to a settled resolution with relatively benign legal conclusions in an Order that carries no apparent collateral consequences, names only the firm, and keeps anonymous the identities of all individuals involved.
Effective policies and procedures and a reasonably designed supervisory system must also include comprehensive training, and a system designed to test whether the procedures are being effectively and consistently implemented. Training and testing should occur at a regular, ongoing interval.
Registrants should create and retain documentation evidencing consistent compliance with the firm's policies and procedures, especially when a policy includes a requirement to conduct and document a review. An inability to evidence through specific, contemporaneous documentation that a procedure was followed may be treated as evidence of non-compliance by the Enforcement Division's staff.
All aspects of policies and procedures, including those relating to MNPI, require regular review to determine whether changes in the adviser's business activities necessitates changes or enhancements to its policies (e.g., an adviser representative has a dual role that leads the adviser to owe a fiduciary duty to different parties, such as shareholders of a public company vis-a-vie the representative's role as a company director, and clients of the adviser on whose behalf the adviser makes trading decisions).
Prompt remediation and strategic cooperation from the outset of an Enforcement Division investigation often leads to better, less damaging disciplinary outcomes. Engaging experienced regulatory enforcement counsel early on can pay dividends in the long run.
Jeffrey T. Skinner
Lauren C. Jackson
F. Daniel Bell, III
Andrew B. Sachs
Thomas W. Steed, III
Regan K. Adamson
Katherine A. McCurry
Waylon M. Bryson
Alexandra M. Fenno
Lauren B. Henderson
Michael MacRae Robinson
Investment Management Attorney