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

PE sponsors’ 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 PE sponsor’s knowledge or intent. See “ACA 2019 Compliance Survey Covers Recent SEC Exam Experience; Common Code of Ethics Issues; Use of Senior Advisers; and Fee and Expense Allocation” (Jul. 9, 2019). The SEC recently initiated enforcement proceedings against a manager for miscalculating the management fee it charged its PE 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 PE sponsors. For another SEC action involving improper fee calculation, 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).

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