Commencing in 2013, the SEC turned its attention to the fee and expense practices of private equity firms. See “SEC Asset Management Unit Chief Bruce Karpati Addresses Private Equity Enforcement Trends, Initiatives and Priorities
” (Feb. 7, 2013). One area of concern involved managers’ disclosures regarding their receipt of monitoring fees from portfolio companies and the acceleration of those fees upon certain triggering events. On that front, the SEC recently entered into a settlement with two investment advisers that were allegedly negligent in failing to make proper disclosures to investors regarding their receipt of accelerated monitoring fees, resulting in the payment of substantial reimbursements to affected investors and civil penalties. This article analyzes the SEC settlement order. For discussion of a recent settlement involving undisclosed compensation from third-party service providers, see “SEC Continues Scrutiny of Undisclosed Fees at Fund Managers
” (Jun. 7, 2018). For additional coverage of SEC scrutiny in this area, see “SEC Enforcement Director Highlights Increased Focus on Undisclosed Private Equity Fees and Expenses
” (May 19, 2016). See also our three-part series on fee and expense allocation practices: “Practices Fund Managers Should Avoid
” (Aug. 25, 2016); “Flawed Disclosures to Avoid
” (Sep. 8, 2016); and “Preventing and Remedying Improper Allocations
” (Sep. 15, 2016).