WASHINGTON, DC—On Friday, Securities and Exchange Commission Chair Mary Jo White told an industry audience that the regulator is not comfortable with what it feels is lack of disclosure between private equity funds that specialize in real estate and the deals they may or may not be closing with their business partners that have an impact on investors in these funds. Therefore, extra scrutiny will be paid. Oh and by the way, the SEC is also planning to put in place some kind of stress testing for advisers, although what the shape of that test will be is still to be determined. Comments and suggestions are welcome.
White's comments come on the heels of what is turning into a fraught year for private equity funds and their relationships with regulators. There has been the steady push from state pension funds to reveal more about their carried interest fees. In addition, the SEC has collected and just published anonymized data from what used to be confidential filings of private equity funds -- namely Forms ADV and Forms PF.
And now the SEC plans to put PE funds' business relationships under a microscope. Or rather, it already has. White told the audience that the Private Funds Unit, housed within the SEC's Office of Compliance Inspections and Examinations, is completing a review of private fund real estate advisers, many of which may be hiring related parties.
"Staff is concerned that disclosure about these arrangements may be non-existent or potentially misleading, particularly with regard to whether or not the related parties charge market rates," she said.
The private equity industry by now has surely gotten used to being regulated -- something which came about under Dodd-Frank, which eliminated some exemptions under the Investment Advisers Act of 1940. Prior to that legislation, there was little oversight of these so-called unregistered asset managers, otherwise known as hedge fund managers, private equity fund managers and real estate and alternative asset managers.
Hedge funds have received the most attention in the years since Dodd-Frank's passage but as White made clear in her speech on Friday, private equity funds that invest in real estate are also on the regulator's radar.
White's comments though should not have been a surprise to the industry; they essentially echo comments that acting director of the SEC's Office of Compliance Inspections and Examinations Marc Wyatt said earlier this year at the Private Equity International Fund Compliance Forum, according to a recap of that event by Sidley Austin LLP.
Based on the SEC's National Exam Program's "Presence Exam" the agency determined that there were widespread violations of law or material weaknesses in controls in more than 150 private equity advisers, he said. Of particular concern, were shifting of expenses, insufficiently disclosed fees and questionable marketing and valuation practices. The agency is looking into all of these issues as well as, White revealed on Friday, the alleged practice of real estate funds giving business to affiliated companies or partners or just friends instead of the best and lowest cost candidate.
But if the private equity industry is looking for one villain to blame for the source of all this sunlight it shouldn't focus on just the SEC. It has been on the receiving end of pointed queries from state pension funds, such as CaLPERS, about how much, exactly, private equity funds are charging pensions with their carried interest fees. The fund has collected the answers, aggregated the data and has promised to publish it in the fall.
But it hasn't been an easy task for CalPERS, which is also struggling with internal divisions on the issue, as a series of news articles last month made clear. The Capital Weekly reported that board member J.J. Jelincic recently wrote to CalPERS CEO Anne Stausboll to inform her that CalPERS' own private equity investment staff is giving him "inaccurate, evasive and condescending responses."
These internal staffers are "perpetuating the talking points and mythology of PE fund managers, who are continuously -- and largely successfully -- trying to convince the limited partners (CalPERS and other institutional investors) that they receive a more favorable deal than they actually do," Jelincic said, according to the Capitol Weekly.
The resulting publicity prompted the fund to publish what it says has been very good returns from private equity over the years, net of fees, including carried interest.
CalPERS, one suspects, will eventually get its data in order. Recently, John Chiang, the treasurer of California, called for legislation requiring full transparency in the reporting of fees charged by private equity firms, the New York Times reported this weekend. And if the state is unable to bring PE to heel, other state pension funds are watching the proceedings as well with plans to publish their own findings.
But it is the SEC that is really tugging at PE's kimono. Last week it published aggregated data in its Private Funds Statistics Report.
"We believe that investors evaluating investments in private funds will benefit from access to this additional information about the private funds and their advisers," White said in a prepared statement. "These statistics also should facilitate constructive feedback and additional analysis that could be used by the Commission and others."
The report includes statistics about the distribution of borrowings, an analysis of hedge fund gross notional exposure to net asset value, and a comparison of average hedge fund investor and hedge fund portfolio liquidity.
The SEC is not through with the data it gathered from the once-private filings. Discussing the stress tests that the SEC will likely apply to advisers, White said that while it is too soon to say what they will look like "we have received some useful inputs from certain of the Form PF questions addressed to existing stress testing practices."
In her speech White pre-empted any grousing from the industry about yet another compliance requirement.
The newly public Form PF statistics show that there are about 2,600 private fund advisers that each manages more than $150 million in private fund assets, she said, and some of the largest groups of private fund investors turn over trillions of dollars in listed equity and futures transactions each month. "It is therefore natural for the characteristics of your funds -- their leverage, their concentration, their size -- to be of interest to the SEC and our fellow regulators."
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