SEC Fines PE Sponsor $4.5 Million for Inconsistent Management‑Fee Offset Provisions and Calculations

Although fees and expenses are a perennial area of focus for regulators, SEC Chair Gary Gensler’s emphasis on undisclosed and conflicted fees in his November 2021 speech outlining a private funds regulatory agenda brings a fresh urgency to the topic. In a recently settled enforcement proceeding, the SEC fined an investment adviser $4.5 million for failing to properly offset management fees due to inconsistent provisions; having inadequate policies in place to prevent the misconduct; and for making misleading statements about the fees and expenses it charged. This article analyzes the alleged violations in the SEC’s settlement order (Order), with additional insights from legal experts on where the Order fits with the SEC’s other recent efforts; the industry’s likely ongoing use of fee offsets in light of the Order; ways to prepare and oversee the process of offsetting management fees; methods to reconcile inconsistent fund documents and placement agreements; and the frequency with which sponsors should test their fee calculations to avoid similar misconduct. See “Gensler Outlines Private Fund Regulatory Agenda and Aggressive Areas of SEC Focus in Recent Speech” (Dec. 7, 2021); and “SEC Division of Examinations’ 2021 Priorities Track and Advance 2020 Priorities” (Apr. 27, 2021).

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