The SEC’s Division of Examinations (Examinations) recently published a risk alert outlining compliance issues the SEC staff observed in examinations of private fund advisers (Risk Alert). The Risk Alert builds on Examinations’ previous risk alert (2020 Risk Alert) on deficiencies identified in practices at private fund advisers. A recent ACA Group (ACA) webinar discussed the four areas of concern highlighted in the Risk Alert and provided practical guidance to help private fund advisers address the SEC’s concerns and meet expectations during examinations. The program featured ACA senior adviser Dan Campbell, managing director Shivani Choudhary and partner Jordan Schwartz. This first article in a two-part series covering the webinar analyzes the Risk Alert’s warnings about using misleading disclosures regarding performance and marketing, as well as using improper hedge clauses and failing to track side letter arrangements. The second article
will break down the Risk Alert’s coverage of managers’ failure to act in a manner consistent with their disclosures, as well as due diligence failures relating to investments or service providers. See our two-part series on the 2020 Risk Alert: “Focus on Conflicts; Fees and Expenses; and MNPI
” (Aug. 25, 2020); and “Key Takeaways for Managers
” (Sep. 1, 2020).