Category: Fundraising

The One with the Failure to Disclose Fees

The private fund industry is plagued with bad actors who don’t disclose fees and affiliate relationships. That has directly lead to the new reporting rule issued by the SEC for private fund advisers. The latest firm to get caught is the Prime Group, based in Saratoga Springs, New York. Prime’s business is investing in self-storage properties.

Prime is not registered with the Securities and Exchange Commission as an investment adviser. The new private fund reforms will only be partially applicable. Prime has at least two investment funds according to the SEC order. I assume they fall outside the definition of a “Private Fund” because Prime is relying on the c(5) exemption or claiming that the fund doesn’t invest in securities.

Prime also has an affiliate real estate brokerage firm owned by Prime’s CEO. Prime had employees and independent contractors that sourced acquisitions. When a fund bought one of these sourced acquisitions, it paid a brokerage fee to the affiliate. This arrangement is, of course, very usual and legal. According to the SEC Order, the majority of Fund II’s transactions paid a brokerage fee to the affiliate.

What Prime did wrong was sell interests in the fund without disclosing the payment of brokerage fees to the affiliate. There was some disclosure, but not enough. From the Fund II Limited Partnership Agreement:

“The General Partner may, from time to time, engage any person to render services to the Fund on such terms and for such compensation as the General Partner may determine, including attorneys, investment consultants, brokers, independent auditors and printers. Person so engaged may be Affiliates of the General Partner or employees of Related Persons.”

The SEC stated that “from time to time” failed to reflect that most of the transactions involved payment of the brokerage fee. This sounds a bit like the SEC’s attack on the use of “may” in disclosures.

The PPM for Fund II disclosed other affiliate fees, a 1% acquisition fee charged on all transactions and 5% property management fee paid to an affiliate, but failed to disclose the brokerage fee. It obviously would have been better practice to disclose the fee. It is common to pay a brokerage fee on transactions, although it usually paid by the seller, not the buyer. In my opinion if this is all the disclosures, it is potentially misleading.

The SEC dug further into Prime’s own DDQ and specific DDQs from some investors:

“Do you use the service of a broker to source deals?”
“Prime has not and does not use a broker; all sourcing is done internally.

“[Disclose]any fees, including consulting fees, paid to any affiliated group or person.”
“NA.”

Any other fees?
“Individual deal team members, unaffiliated with Prime Group Holdings or the fund manager, receive a brokerage fee of 1% to 3% of net purchase price.”

Unfortunately, Prime took a perfectly usual and legal fee and got itself in trouble by not disclosing it.

The twist, at least for a compliance geek, is that the SEC charge was not under the Investment Advisers Act. It was under Section 17(a)(2) of the Securities Act.

(a) It shall be unlawful for any person in the offer or sale of any securities … directly or indirectly—

(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.”

Since Prime was not registered as an investment adviser and the fund was not a private fund, there is a strong argument that there was no investment advice about securities and therefore the activity falls outside the scope of the anti-fraud provisions of the Investment Advisers Act. But the interests in Prime’s funds are securities, so the Securities Act does apply to the sale of those interests. So the SEC relied on the anti-fraud provisions of the Securities Act.

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A New Marketing Rule FAQ

It’s been two months and the SEC finally issued a substantive FAQ on the Marketing Rule for investment advisers. https://www.sec.gov/investment/marketing-faq

Gross and Net Performance

Q. When an adviser displays the gross performance of one investment (e.g., a case study) or a group of investments from a private fund, must the adviser show the net performance of the single investment and the group of investments?

A. Yes. The staff believes that displaying the performance of one investment or a group of investments in a private fund is an example of extracted performance under the new marketing rule.[1] Because the extracted performance provision was intended, in part, to address the risk that advisers would present misleadingly selective profitable performance with the benefit of hindsight, the staff believes the provision should be read to apply to a subset of investments (i.e., one or more). Accordingly, an adviser may not show gross performance of one investment or a group of investments without also showing the net performance of that single investment or group of investments, respectively.[2] In addition, the adviser must satisfy the other tailored disclosure requirements as well as the general prohibitions, including the general prohibition against specific investment advice not presented in a fair and balanced manner, when showing extracted performance.[3]

This has been an issue that private equity fund managers have been trying to clarity on for over a year. There has been conflicting advice from consultants and lawyers about the best way to deal with case studies that highlight the type of investing and managing by the private equity fund manager.

I think showing the net overall returns for the fund is more important that coming up with some jiggered calculation of net return for a single investment. But the SEC clearly thinks the opposite.

This will impact many fund managers who took the opposite advice from the SEC position. Marketing materials will need to be revised. Policies and procedures will need to be re-written. A formula for estimating net returns for an individual investment will need to be created.

Happy Marketing Rule Day

The new Marketing Rule for Registered Investment Advisers takes effect today. (Nov 4) Hopefully you’ve got your policies and procedures in place and operational, if the rule applies to you.

Many were hoping for some clarifications and updates. Only two questions were ever answered.

  1. An adviser may choose to comply with the amended marketing rule in its entirety any time starting on the effective date, May 4th, 2021. Until an adviser transitions to the amended marketing rule, the adviser would continue to comply with the previous advertising and cash solicitation rules and look to the staff’s positions under those rules. The staff believes an adviser may not cease complying with the previous advertising rule and instead comply with the amended marketing rule but still rely on the previous cash solicitation rule.
  2. The staff would not object if you are unable to calculate your one-, five-, and ten-year performance data in accordance with rule 206(4)-1(d)(2) immediately following a calendar year-end and you use performance information that is at least as current as the interim performance information in an advertisement until you can comply with the calendar year-end requirement. 

There are several unanswered questions out there. I’ve seen two floating around with lots of discussion these last few weeks.

One is for private equity fund managers using extracted performance in a case study for a fund. I’ve seen conflicting advice from different consultants and law firms about whether you need to generate some kind of a net return for that single investment or whether you can use the net return for the fund.

The second is whether you need to update Form ADV Part 2 Question 14 regarding placement agents or solicitors right away to comply with the Marketing Rule. The SEC has said conflicting things about this update.

The Division of Examinations has already stated it will start a sweep exam on compliance with the Marketing Rule. (See the Risk Alert) Keep an eye on your phone Monday morning.

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Withdrawal of Advertising Rule Guidance

On December 22, 2020, the Securities and Exchange Commission adopted the new Marketing Rule (amended Rule 206(4)-1) under the Investment Advisers Act that will replace both the current advertising and cash solicitation rules and will govern investment adviser marketing. Since it’s a complete re-write of investment adviser marketing, most, if not all, of the staff guidance, no-action letters and other publications are likely inapplicable. The SEC said it would be evaluating them and withdrawing them as appropriate.

The Division of Investment Management has made that announcement: Division of Investment Management Staff Statement Regarding Withdrawal and Modification of Staff Letters Related to Rulemaking on Investment Adviser Marketing (PDF)

The big ones are in there. Clover Capital Management, DALBAR, and Franklin Management. The staff also withdrew the 2014 Guidance on the Testimonial Rule and Social Media. There are over 200 items withdrawn.

What leaves me scratching my head is whether any of the past guidance was not withdrawn. Is there something still sticking around? It will take a bunch of research to figure that out. The IM Information update says that “certain” staff statements around the old advertising rule are being withdrawn. Not “all” statements. It might have been useful for the SEC to point out any guidance that was not withdrawn.

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Pre-existing, Substantive Relationship

Rule 506(b) of Regulation D provides a safe harbor for issuers to engage in private placements. Private placements undertaken pursuant to Rule 506(b) are limited by Rule 502(c) of Regulation D, which imposes as a condition on offers and sales under Rule 506(b)that “… neither the issuer nor any person acting on its behalf shall offer or sell the securities by any form of general solicitation or general advertising…”

The SEC Staff has issued various interpretive letters that have tried to clarify the regulation. One of those was the statement that a general solicitation is not present when there is a “pre-existing, substantive relationship” between an issuer, or its [agent], and the offerees.

The SEC has published some Q and A’s on the topic. 256.31 says “substantive” means you have sufficient information to determine the offeree is an accredited or sophisticated investor. Blast emails to unknown investors would not be substantive.

As to the “pre-existing” prong, question 256.30 says there is no minimum waiting period, but there is a waiting period. The Lamp Technologies No Action letter in 1997 said that 30 days is sufficiently long to be pre-existing. (See Footnote 6). So somewhere between 0 days and 30 days is pre-existing enough, as long as you know the potential investor is accredited, to send information on offering.

There is also the question of what amounts to an offering. If it’s at the early stages of a fund, before its formed, perhaps there is no actual security sell. It’s hypothetical information about an upcoming offering.

This all circles back to the IR people asking whether they can leave a copy of the pitchbook for a fund at the initial meeting with an investor. I think the answer is generally “no”, unless you can show that there is a pre-existing substantive relationship with the investor. An initial meeting is generally the 0-day period, unless there has been a series of discussions prior to that initial meeting.

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General Solicitation and Placement Agent Agreements

D.H. Hill Securities got hit with a FINRA penalty for violating the private placement offering rules. FINRA concluded that D.H. Hill did not have a pre-existing, substantive relationships with several investors in an offering. This was a breach of the Rule 502(c)

The key point from the settlement was that the D.H. Hill began participating in the private placement offerings before creating a substantive relationship with the individuals. The “pre-existing” standard was not there because D.H. Hill started selling to them without establishing the relationship.

FINRA cites two ways for a broker-dealer to create a pre-existing, substantive relationship:

  1. through a previous investment in securities offered through the broker-dealer
  2. through submission and approval of an investor qualification questionnaire

FINRA is making it clear that its easier to sell private placements to the existing client base than reaching out for new investors.

Question 256.29 makes this even clearer:

Question: What makes a relationship “pre-existing” for purposes of demonstrating the absence of a general solicitation under Rule 502(c)?

Answer: A “pre-existing” relationship is one that the issuer has formed with an offeree prior to the commencement of the securities offering or, alternatively, that was established through either a registered broker-dealer or investment adviser prior to the registered broker-dealer or investment adviser participation in the offering. See, e.g., the E.F. Hutton & Co. letter (Dec. 3, 1985). [August 6, 2015]

Of course, the big question is long between the initial contact and screening before a relationship becomes pre-existing?

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How Do You Define AUM?

The Securities and Exchange Commission took a big step with private funds and setting a defined standard of Regulated Assets Under Management. There is still discretion in how different aspects are calculated. It works well for hedge funds and private equity funds. It starts breaking down as you have more alternative assets that fall outside the definition of “private fund” and “securities portfolio” that ties to the RAUM definition.

For real estate, INREV published a tool for defining Assets under Management: Assets Under Management (AUM) 2021.  

INREV interviewed a bunch of asset managers to figure out how they came up with their AUM numbers. The resulting paper summarizes the main components of AUM and options for each component. It’s not a prescriptive attempt to standardize AUM. It’s just a thought peice.

INREV came up with ten components. Each component has two to four different ways of treatment. For example, one component is the ownership of JV’s and co-investments, with these options:

  • 100% regardless of ownership
  • 100% if the asset is consolidated in the financials but ownership
  • 100% if asset mgmt services are provided for the asset, but ownership share only if not
  • % ownership share only

Of course you can argue that JVs may be treated differently than co-investments, so there could easily be more components and more options.

The INREV summary is a good way to think about it. With the ten components and each factor, that gets you to over 36,000 different ways to calculate AUM using the INREV breakdown.

Obviously, one driving factor is the “ask” accompanied by the AUM request. It means having to give a summary of what went into the AUM calculation.

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Marketing Rule FAQs

The Securities and Exchange Commission finally published the new Marketing Rule for investment advisers. Based on the publication date, it becomes effective on May 4. The compliance date is November 4, 2022. A frequently asked question is whether you can slowly wade into the standards of the new rule or do you have to do a full belly-flop.

Apparently, that question has become frequent enough that the SEC published a response. The answer is the full belly-flop.

“An adviser may choose to comply with the amended marketing rule in its entirety any time starting on the effective date, May 4th, 2021. Until an adviser transitions to the amended marketing rule, the adviser would continue to comply with the previous advertising and cash solicitation rules and look to the staff’s positions under those rules. The staff believes an adviser may not cease complying with the previous advertising rule and instead comply with the amended marketing rule but still rely on the previous cash solicitation rule. “

https://www.sec.gov/investment/marketing-faq

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How to do a Fundraising Incorrectly

Ettro Capital developed real estate. It’s principal, Peter Ettro must have thought that using a private fund to raise some of the capital to finance the investments would be a good idea. He raised over $4 million from 13 investors in ECM Opportunity Fund. The problem is that he made some big fundraising mistakes.

The first category of mistakes was lying to prospective investors.

From April through October 2017, Ettro claimed that the Fund’s net return since inception ranged from as low as 26.4% to as high as 56%, its blended net return since inception exceeded 20%, its realized yield was 18.67%, and its total return was 43.67%. In truth, the fund didn’t have any returns until November 2017 and it wasn’t that good.

Ettro send another investor a description of the projects the fund had in its portfolio. It listed two completed projects that had gained over $900,000 and six projects in progress. It left out a third completed project that had lost over $1.1 million.

Ettro also inflated the size of the portfolio, claiming to invested in over $50 million of real estate projects. The truth was closer to $1.5 million.

The second category of problems was engaging in general solicitation.

Ettro had filed a Form D for the fundraising and checked the “Rule 506(b)” box. That makes it a private offering and prohibits general solicitation and general advertising. Ettro made the fundraising material available on a website. THat included target returns and investor testimonials that all visitors could access.

Ettro tried to fix the problem by filing an amendment to Form D, switching to the “Rule 506(c)” box. That public-private offering allows general solicitation. The big requirement is that you have to take steps to verify the accredited investor status of your investors. Ettro had not done so. At least one investor was not accredited.

Ettro voluntarily returned the management fees back to the fund investors and has to pay a $60,000 fine to the SEC.

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Investment Adviser Marketing Rule Finally Published

After sitting in limbo for three months, the Securities and Exchange Commission finally published the Investment Adviser Marketing Rule in the Federal Register on March 5, 2021. That makes the effective date May 4, 2021 and the compliance date 18 months after that (October November 4, 2022).

So far I’ve not heard any information on why the extended delay. There were rumors of changes to the rule under the new Chair of the SEC. There were rumors of combing the publication with the rescission of some of the 50 years worth of no-action letters and other guidance. The rumors were apparently not true.

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