Ensuring compliance in your marketing and solicitation procedures

PEI PFC Forum 2013

These are my notes from the Private Fund Compliance Forum 2013.

Paula Bosco, Managing Director, Chief Regulatory Counsel & CCO, New Mountain Capital, LLC
Abrielle Rosenthal, Senior Principal & Senior Compliance Counsel, TowerBrook Capital Partners L.P.

The JOBS Act is going to change things. We just don’t know when or how. However, most people think it will just reduce risks associated with speaking at conferences and speaking to the press.  A poll of the audience showed only 6% would advertise widely, 34% would advertise in small institutional circles, and 60% would not change their marketing practices.

You want to make sure you define terms like Gross IRR and return on equity.  Of course, all gross numbers must be accompanied by net numbers.

You want your footnotes to be at least 8pt, otherwise its unreadable.

You want every statement in the materials to have a source and to be backed by data. You especially need to have the supporting data for past performance numbers.

You can treat communications to current investors communicating current fund performance as not being marketing materials. The danger is that the materials get delivered to a prospective investor as part of the marketing pitch.

Be sure to be consistent across the Form ADV and responses to DDQs and other marketing materials.

The session turned to the big, ugly, hairy gorilla known as AIFMD. If you are not actively marketing in Europe and don’t have any Europe fund operations then you probably don’t have to worry about AIFMD.

However, there are three areas that may still trigger AIFMD: co-investments, secondary transfers, and equity structures.

If you are allowing co-investments from European investors that could trigger AIFMD. If an investor sells an interest to a European investor it may trigger AIFMD.

Local laws on lobbying and pay-to-play can be time consuming.

Remember that the anti-fraud rules apply to all communications, not just marketing. You can never be misleading.