How to Mitigate Investment and Operational Conflicts Arising Out of Simultaneous Management of Hedge Funds and Private Equity Funds

As private fund managers seek to diversify their product offerings and lines of business, investment managers are increasingly operating both hedge and private equity funds. Simultaneous management, however, can give rise to potential conflicts of interest, including issues relating to allocation of investment opportunities between the funds, possession of material nonpublic information, valuation and allocation of expenses. The SEC’s Office of Compliance Inspections and Examinations (OCIE) continues to prioritize conflicts of interest during the adviser examination process, with failures in this area frequently leading to referrals by OCIE to the Division of Enforcement. See “SEC Enters Final Judgments in Connection With Allegedly Fraudulent Scheme to Benefit One Fund at the Expense of Another” (Aug. 24, 2017); and “OCIE 2017 Examination Priorities Illustrate Continued Focus on Conflicts of Interest; Branch Offices; Advisers Employing Bad Actors; Oversight of FINRA; Use of Data Analytics; and Cybersecurity” (Jan. 26, 2017). This three-part series assists our readers with identifying and mitigating the conflicts of interest that may arise as a result of the simultaneous management of hedge and private equity funds. The first article explores how the structure of the investment manager, and the investments by its funds, may give rise to potential conflicts, as well as conflicts that may arise from the allocation of investment and disposition opportunities between affiliated hedge and private equity funds. The second article discusses operational conflicts arising out of simultaneous management of hedge and private equity funds, including conflicts involving the possession of material nonpublic information, valuation, allocation of expenses, personal trading and investors. The third article addresses offshore concerns and ways to mitigate conflicts of interest. See also our three-part series “Conflicts Arising Out of Simultaneous Management of Hedge Funds and Alternative Mutual Funds Following the Same Strategy”: Investment Allocation Conflicts (Apr. 2, 2015); Operational Conflicts (Apr. 9, 2015); and How to Mitigate Conflicts (Apr. 16, 2015).

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