House Votes to Make Private Equity Life Easier Amid FinesBy
U.S. lawmakers approve bill that would ease some disclosures
Proposal comes as SEC levies record fines against firms
U.S. House lawmakers voted to relax oversight of the $2.4 trillion private equity industry just as its biggest players face record fines.
Apollo Global Management LLC, Blackstone Group LP, KKR & Co. and others have been scrutinized by regulators and penalized in recent months for failing to reveal some fee practices to clients. Disclosures about those firms’ holdings would be rolled back under the proposal, which was approved Friday in a 261-145 vote by the House of Representatives.
The bill, introduced in June by Robert Hurt, a Virginia Republican, would limit fund disclosures made to regulators and make advertising to wealthy investors easier for fund managers. While it isn’t likely to get the sufficient number of votes in the Senate to pass, the bill could eventually be included in a broader package, like when a watered down requirement for banks’ swaps trading became part of year-end spending legislation.
The White House said Tuesday that President Barack Obama’s staff would advise him to veto the private equity measure if it’s passed by Congress. Democratic presidential nominee Hillary Clinton weighed in Thursday, re-tweeting a post by one of her top advisers that urged lawmakers to reject the legislation because it “puts workers’ retirements at risk.”
The Securities and Exchange Commission has gone after private equity firms more forcefully than ever before in the 40-year-old industry’s history. Apollo settled allegations last month that it made misleading disclosures about fees, agreeing to pay a $12.5 million penalty and $40 million in disgorgement and interest. Blackstone and KKR agreed last year to separate settlements over how they informed investors of fund costs, paying $10 million in fines apiece and almost $50 million in combined disgorgement and interest. The firms haven’t admitted or denied wrongdoing.
Private equity firms pool money from investors including pension plans and endowments with a mandate to buy companies within about five to six years, then sell them and return the money with a profit in a cycle lasting about 10 years. The firms typically charge an annual management fee of 1 percent to 2 percent of the funds and keep 20 percent of investment profits.
Among the issues the SEC has found is what’s known as accelerated monitoring fees. Monitoring fees, which private equity firms charge companies they own annually for advisory work, were accelerated into lump-sum payments when a company was sold or taken public ahead of schedule, even when future work wouldn’t be performed. The regulator found that Apollo and Blackstone didn’t adequately disclose the practice to clients.
The legislation would “roll back the clock” to the years before private equity firms were subject to “elementary oversight measures that numerous documented abuses have shown to be necessary for investor protection,” the Consumer Federation of America and Americans for Financial Reform wrote in a joint letter in June. “It would act to return private funds to the shadows.”
Private equity firms had to beef up disclosures following the 2010 Dodd-Frank Act, which gave the SEC oversight of managers of private investment funds. About 1,800 firms have registered since the law’s enactment, the House Financial Services Committee said.
The firms are required to complete for the SEC a confidential form, called Form PF, that includes valuations of holdings, liquidity characteristics, risk metrics and sources of borrowings. Under the proposal, private equity firms wouldn’t need to disclose that information on the form.
SEC regulations prohibit advertisements with testimonials about a firm or references to recommendations that have been profitable. The bill would allow that kind of marketing if it’s made to investors who exceed certain income or wealth thresholds.
"This is a welcome step for midsize private capital providers who help bolster the U.S. economy," Gary LaBranche, chief executive officer of the Association for Corporate Growth, which represents middle-market private equity firms and other service providers, said in a statement after the vote. "The bill’s thoughtful and modest reforms maintain important investor protections while modernizing the regulatory framework."
An earlier version of the bill had proposed exempting firms from providing regulatory brochures to some current and prospective clients, including pension funds, if the clients had received similar information through other documents. The brochures must include descriptions of the firms’ services, fees, disciplinary history, conflicts of interest and background information on key executives. An amendment to the bill was approved Friday that struck the exemption.
“These thoughtful modifications show a commitment to improving the regulatory structure for private funds and we look forward to seeing this bill advance,” Mike Sommers, CEO of the American Investment Council, an industry lobbying group in Washington, said in an e-mail before the vote. “The bill would make the regulatory process more efficient and effective for both regulated entities and the regulators.”
The American Investment Council represents the largest private equity firms, including Blackstone, Apollo, KKR, Carlyle Group LP and TPG, as well as more than 30 others.
The California Public Employees’ Retirement System and the California State Teachers’ Retirement System, the two biggest U.S. pensions, have opposed the proposal. Information provided by private equity firms under required disclosures has helped purge the industry of certain inappropriate fee practices, CalSTRS CEO Jack Ehnes wrote in a June letter.
The House Financial Services Committee approved the bill by a 47-12 vote on June 16 after adopting an amendment to delete provisions in the introduced version that would have created additional exemptions from record-keeping and reporting requirements.
— With assistance by Michael Smallberg