Proper Disclosure of Fee and Expense Allocations Is Crucial for Managers to Avoid SEC Enforcement Action

SEC scrutiny of fee and expense practices by private equity fund managers continues unabated with its recent enforcement action against publicly traded private equity firm Apollo Global Management, LLC (Apollo). See “SEC Enforcement Director Highlights Increased Focus on Undisclosed Private Equity Fees and Expenses” (May 19, 2016). The SEC identified three issues resulting in securities law violations, including inadequate disclosure of accelerated monitoring fees paid by portfolio companies to Apollo-controlled investment advisers; material misrepresentations in a fund’s financial statements regarding the allocation of interest on a loan from the fund to its general partner; and failure to supervise a partner who passed personal expenses through to funds and portfolio companies. This article summarizes the facts precipitating the SEC’s action, Apollo’s alleged violations and the terms of the settlement. The SEC’s action against Apollo is one in a string of recent enforcement actions that have addressed a variety of fee and expense practices, including legal fees, monitoring fee offsets, broken deal expenses, failure to follow allocation policies and allocation methodology. For coverage of another SEC enforcement action involving the undisclosed acceleration of monitoring fees, see “Blackstone Settles SEC Charges Over Undisclosed Fee Practices” (Oct. 22, 2015). For best practices on allocating expenses between managers and their funds, see “Expense Allocation and Fee Practices Fund Managers Should Avoid to Reduce Risk of SEC Scrutiny (Part One of Three)” (Aug. 25, 2016). 

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