PE Sponsors Must Avoid Including Mischaracterized Investments in Track Records or Face SEC Ire

The PE industry is intensely competitive, with sponsors jockeying for talent, investment opportunities and prospective investors. Sponsors will leverage their entire toolkits to gain an advantage, but that can backfire at times. One area in which that friction occurs is preparation of marketing materials and formulation of a sponsor’s track record of investments. Sponsors must balance a desire to paint the most favorable possible picture of their investment acumen while also ensuring they do not misrepresent their experience or efforts. The SEC recently initiated enforcement proceedings against a PE sponsor for incorrectly including a past investment involving the firm’s principals in the track record in the fund’s marketing materials. Although the SEC’s cease-and-desist order (Order) does not mention any harm to investors or the degree to which it boosted the sponsor’s performance results, the SEC levied a substantial fine against the firm anyway. This article summarizes key takeaways from the Order, including insights from attorneys and consultants on lessons PE sponsors should heed. For more on porting track records when launching new funds, see “The New Trend in PE Fund Seed Investments, Unique Deal Features and Several Options for Seed Sources” (Mar. 17, 2020); and “Investor Gatekeepers Advise Emerging Managers on How to Stand Out When Pitching and Marketing Their Funds” (Dec. 15, 2016).

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