That was my first thought upon seeing that the SEC had charged private equity firm Lincolnshire Management with breaching fiduciary duty by an improper allocation of portfolio company fees. After all, it had been more than four months since an SEC official said that the regulator had identified “violations of law or material weaknesses in controls” in over half of the private equity managers that had undergone presence exams. Lots of rumors of pending enforcement actions, but nothing in writing until Lincolnshire — which has agreed to pay a $2.5 million penalty without admitting any wrongdoing.
That was my second thought, after speaking with Lincolnshire managing director and general counsel Jim McLaughlin. He tells me that his firm never underwent a presence exam and that the SEC first inquired around two years ago (i.e., before such exams really got underway). McLaughlin says he is unaware of why the SEC first began investigating Lincolnshire, and the Agency declined to comment.
So maybe this is just a one-off, sparked by a hunch or an unknown (to me) complainant.
Here are the details: In April 1997, Lincolnshire acquired a hard drive repair company called PCS Inc. through its debut fund. More than four years later, it acquired a complimentary company called Computer Technology Solutions — with the intention of merging it with PCS. But Lincolnshire’s first fund was out of money at that point, so it funded the CTS acquisition via its second fund (raised in 1999).
Such comingled investments can be tricky, particularly given that each fund has at least a slightly different investor base. So Lincolnshire developed expense allocation policies — including annual management fees to be paid directly to Lincolnshire — that were shared verbally with management of both companies. In short, each company’s allocation would be based on the percentage of its contribution to the combined platform’s overall revenue. But the policies somehow never were formalized in writing, thus leading to occasional misallocations. For example, PCS “paid the entire third-party payroll and 401(k) administrative expenses for employees of both companies.”
Each company did undergo regular audits, but it is unclear if the auditors were fully aware of the allocation expectations.
“The companies didn’t fully follow the allocation policies we put in place,” McLaughlin says, adding that Lincolnshire is “happy to conclude this matter.”
Per is settlement with the SEC, Lincolnshire will pay $1.5 million in disgorgement plus a $450,000 penalty and $358,112 in prejudgment interest. All of the money will come from Lincolnshire’s management company, meaning that its limited partners are not on the hook. Lincolnshire no longer owns either of the portfolio companies in question, having previously sold them to another private equity firm.
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