Scope of Mock Examination Reports, Preserving Privilege Over Findings and Disclosing Results to Investors (Part Two of Two)

Although much of the focus in a mock examination of a fund manager is on discovering compliance risks and shortcomings, that is hardly the end of the process. Instead, managers need to consider in what format they will receive the mock examination report prepared by the provider, with an eye toward its potential disclosure – voluntarily or involuntarily – to the SEC or investors. Otherwise, failure to properly weigh those concerns and protect the mock examination results can turn a useful, informative exercise into a marketing and regulatory headache for managers. The Private Equity Law Report consulted with a number of professionals about those and other factors for fund managers to consider when conducting mock examinations. This second article in a two-part series examines whether a mock examination report should be delivered orally or in writing; how contractual and legal strategies can confidentially preserve mock examination results; and what risks accompany disclosing the mock examination to investors. The first article outlined the primary goals of mock examinations; the types of entities and expertise needed of mock examination providers; and the substance and process of a mock examination. For coverage of the viability of the attorney-client privilege, see “Preserving Privilege in Audits and Internal Investigations” (Oct. 13, 2020); and “SDNY: In Absence of Attorney‑Client Relationship, Communications With Consultants Who Happen to Be Attorneys Are Not Protected” (Oct. 8, 2019).

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