Placement Agents’ Evolving Role in PE Fundraising and Potential Compliance Issues Sponsors Must Consider (Part One of Two)

Placement agents continue to be a common and valuable part of many sponsors’ fundraising efforts, but their role is hardly one-size-fits-all. The services used and level of placement agent involvement can vary markedly by the asset class in question, maturity of the manager and vintage of the fund involved. Further, fund managers need to weigh a host of compliance issues, including how to oversee agents’ efforts and ensure they are properly registered and licensed. That is exacerbated by the SEC’s December 2020 amendments to Rule 206(4)‑1 under the Investment Advisers Act of 1940 (Marketing Rule), which deem communications made by placement agents on behalf of private funds to be “advertisements” subject to the compliance and disclosure requirements of the Marketing Rule. This first article in a two-part series discusses the role placement agents play in fundraising; which sponsors use what type of placement agents; and compliance issues that sponsors should consider when engaging and working with a placement agent. The second article will review common negotiation points in the placement agent agreement and potential outcomes. See “Marketing to Public Pension Plans: Honest Services Fraud, Use of Placement Agents and Lobbyist Registration Issues (Part Two of Two)” (Jun. 4, 2019).

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