The SEC recently issued a cease-and-desist order against a private equity fund adviser, citing several violations of the Investment Advisers Act of 1940 relating to the adviser’s termination of portfolio company monitoring agreements and its acceleration of the payment of future monitoring fees pursuant to those agreements. Given the SEC’s stance against failures to maintain written policies and procedures reasonably designed to prevent securities law violations – as exemplified by several high-profile recent enforcement actions – observers might wonder whether the action is the latest example of a gathering trend. See “Hedge Fund Manager Deerfield Fined $4.7 Million for Failing to Adopt Insider Trading Compliance Policies Tailored to the Firm’s Specific Risks
” (Sep. 21, 2017). Another reading of the settlement, however, holds that the SEC is in the midst of a sharply aggressive campaign against conflicts of interest, which is a distinct issue from internal policies and procedures and the general state of a firm’s compliance culture. In this light, the policies and procedures-related charges are an “add-on” to the central issue. To help readers understand these issues and what the action portends for the SEC’s focus, this article analyzes the SEC’s order and provides insights from legal professionals with expertise in this area. For more on accelerated monitoring fees, see “Proper Disclosure of Fee and Expense Allocations Is Crucial for Managers to Avoid SEC Enforcement Action
” (Sep. 1, 2016); and “Expense Allocation and Fee Practices Fund Managers Should Avoid to Reduce Risk of SEC Scrutiny (Part One of Three)
” (Aug. 25, 2016).