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Private Equity Endures Heightened Public Scrutiny

The public scrutiny on private equity fund sponsors has continued to intensify this month, evidenced by at least three recent events.

First, the government announced that it was probing performance figures at private equity funds: SEC Probing Private Equity Performance Figures. This focus on performance should not come as a surprise. Financial performance is what drives the industry. Moreover, the SEC has made it clear that private equity fund sponsors are a regulatory and enforcement priority. And if that weren’t enough, two separate academic white papers have raised questions about performance claims in the private equity industry. After the options backdating scandal a decade ago, the catalyst of which was an academic white paper, the SEC had no choice but to probe performance claims.

Second, the fee practices of private equity firms continue to be a source of criticism. In direct response to regulatory pressure for additional disclosure, private equity sponsors have made more robust disclosures about their fees: Buyout Firms Disclose More Fees. At the same time, institutional investors have become more willing not only to criticize the amount of fees that they pay to private equity firms, but also to explore alternative structures to avoid high fees: Pensions Funds Lambaste Private-Equity Fees.

Third, the settlement of the “club deal” litigation – which should have been a welcome development – probably increases the risk of future litigation for the industry. As a result of an apparent filing error, it was revealed that the plaintiffs’ lawyers received a block-buster fee award of $200 million. Like private equity professionals, plaintiffs’ lawyers tend to go where the money is located.

If recent events are any indication, the spotlight on private equity fund sponsors is poised to continue to expand.

© 2021 Proskauer Rose LLP. National Law Review, Volume IV, Number 329

About this Author

Michael R. Hackett, Litigation Attorney, Proskauer Law Firm

Michael R. Hackett is an associate in the Litigation Department and a member of the Asset Management Litigation practice. His practice focuses on disputes and regulation involving private funds, including private equity, venture capital, hedge, real estate and private credit funds, as well as other limited partnerships, where he regularly advises funds, fund sponsors, investment advisers and institutional and individual investors.

Mike’s experience representing private fund clients runs the gamut, from control contests within advisers, to...

Timothy W. Mungovan, Litigation Attorney, Proskauer Law Firm

Timothy Mungovan is a Partner in the Litigation Department, co-head of the Private Investment Funds Disputes practice and a member of the Private Investment Funds Group. Tim has an international practice in complex commercial litigation, advising public and private companies in a variety of areas, including securities, corporate governance, fiduciary obligations, investment management and financial services, fraud and trade secrets.

In addition to his regular commercial litigation practice, Tim focuses on disputes involving private investment...

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