Pillsbury hosted a panel event for 100 Women in Hedge Funds on July 28 discussing conflicts of interests hedge fund managers face in managing multiple account types, such as funds, institutional separate accounts and sub-advised mutual funds. Kristin Snyder, Associate Regional Director for Examinations, San Francisco Regional Office of the Securities and Exchange Commission, emphasized that while the SEC does not expect advisers to have conflict-free business models, clear disclosure and effective mitigation of material conflicts are essential fiduciary duties of an adviser. Other panelists and representatives of hedge fund managers (Frank Martin, President, Standard Pacific Capital, LLC) and institutional investors (Michelle Young, Managing Director, Ohana Advisors), provided insights into identifying, assessing, mitigating, and managing those conflicts. Ildiko Duckor, Partner and co-head of Pillsbury’s Investment Funds and Investment Management group, moderated the panel and offered tips and comments on practical solutions to account conflicts.
On September 22, 2014, the Securities and Exchange Commission (the “SEC”) charged private equity fund adviser, Lincolnshire Management, Inc. (“Lincolnshire”), with misallocating expenses shared between two portfolio companies. Lincolnshire integrated two portfolio companies that were each owned by a different Lincolnshire private equity fund. Lincolnshire owed a fiduciary duty to each fund and such fiduciary duty was breached when Lincolnshire would charge one portfolio company more than its fair share for expenses benefiting both portfolio companies.
Lincolnshire was aware of the complexity involved in sharing expenses and did have an expense allocation policy in place, though it was not in writing. The instances that resulted in a breach of Lincolnshire’s fiduciary duty were those in which the verbal expense allocation policy was not followed. The SEC also found, with respect to the integration of the portfolio companies, that Lincolnshire did not have sufficient written policies and procedures in place to prevent violations of the Investment Advisers Act of 1940 (“Adviser’s Act”). Lincolnshire agreed to a settlement with the SEC in excess of $2.3 million.
It is interesting to note that, while the SEC announced several months ago it had conducted presence exams and found many issues in private equity managers, Lincolnshire was not one of the companies subject to a presence exam. Private equity managers who have not had a presence exam should not assume they are unlikely to be examined outside of the presence exam protocol. This enforcement action reinforces the requirement that private equity fund advisers are required to have policies and procedures in place that are designed to prevent violations of the Adviser’s Act and other securities laws. More importantly, once in place, such policies and procedures must be monitored by the chief compliance officer and observed by all “covered persons.”