Fund Managers May Be Liable for Incorrect Fee Calculations, Regardless of Intent

Private fund managers’ handling of fees and expenses, as well as valuation practices, have been a top priority in SEC exams over recent years. Inadvertently using an incorrect formula to calculate management fees, or inputting inaccurate variables into that formula, can result in overpayments to the general partner and violations of the Investment Advisers Act of 1940 (Advisers Act), regardless of a manager’s knowledge or intent. See “ACA 2019 Hedge Fund Survey Examines SEC Exam Experience, Codes of Ethics, Electronic Communications and Expense Allocations (Part One of Two)” (Aug. 8, 2019). The SEC recently initiated enforcement proceedings against a manager for miscalculating the management fee it charged its private equity fund, emphasizing that scienter was not a necessary element of the relevant provisions of the Advisers Act. This article analyzes the SEC cease-and-desist order and provides relevant takeaways for hedge fund managers, who have also been targeted by the SEC for improper fee calculations. For coverage of similar SEC actions, see “Recent SEC Settlement Reminds Fund Managers to Strictly Adhere to Disclosed Fee and Expense Calculation Methodologies and Fully Disclose Conflicts of Interest” (Nov. 16, 2017); and “Adhering to Disclosed Fee and Valuation Methodologies Is Crucial for Hedge Fund Managers to Avert Enforcement Action” (Jan. 28, 2016).

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