Apollo Global Management (APO) has been caught misleading investors in its private equity funds.
The U.S. Securities and Exchange Commission (SEC) on Tuesday announced that Apollo has agreed to a $52.7 million settlement ― including a $12.5 million fine ― for several transgressions:
1. Accelerated fees: First, Apollo has consented to a finding that it breached fiduciary duty by not informing limited partners in its private equity funds that it would engage in acceleration of portfolio company monitoring fees.
For the uninitiated, private equity firms often charge annual monitoring fees to their portfolio companies, ostensibly for management services. These are typically long-term agreements of upwards of 10 years. But if the private equity firm sells the portfolio company before the monitoring agreement expires (or takes the company public), it often accelerates full payment of the remaining balance.
Such a practice is common in private equity, and the SEC acknowledges that Apollo disclosed the existence of monitoring fees in its original fund documentation, and also consistently disclosed the amount of fees accelerated after such actions were taken. The trouble, however, is that Apollo never put any mention of fee accelerations in its original documentation.
A spokesperson for Apollo says that the firm no longer engages in accelerated monitoring fees.
2. Taxing: Apollo’s sixth flagship private equity fund borrowed approximately $19 million from four of its parallel funds, for the undisclosed purpose of deferring taxes that Apollo executives would owe on carried interest from those parallel funds.
Here is Apollo’s explanation:
“The SEC alleges that in a footnote to the Fund VI financial statements, Apollo did not adequately disclose that the interest on a loan would accrue to the General Partner of the Fund. Apollo successfully recapitalized two Fund VI portfolio companies in 2008, generating gains for its fund investors. Rather than distribute Apollo’s portion of those gains to it, Apollo’s share of the gains was lent to it in order to more closely align its taxable income with the cash proceeds. Apollo paid about $3 million in interest on the loan, which was then allocated as income to Apollo and on which taxes were paid by Apollo. To put this in perspective, Fund VI was a $10.4 billion fund. The loan was terminated in two stages in 2011 and 2013. At no time were fund investors any worse off as a result of the loan. The loan to Apollo was fully disclosed in the footnotes to Fund VI’s financial statements. The SEC took issue with the disclosure regarding the allocation of the accrued interest on the loan.”
3. Expensive expenses: Apollo allegedly twice caught a then-senior partner at the firm “improperly charging personal items and services to Apollo-advised funds and their portfolio companies.” The individual went so far as to fabricate information to cover his tracks, but Apollo only reprimanded him before a subsequent investigation led to even more instances of wrongdoing. Apollo would later inform the SEC about this individual, and would part ways with him in early 2014.
“The executive agreed to a formal separation agreement with the firm after repaying all of the personal expenses he improperly charged as well as the cost of the internal review conducted by Apollo,” said the firm in a statement. “Apollo reimbursed its funds for any improper expenses, voluntarily reported the matter to the SEC and cooperated fully with the agency’s review.”
The SEC’s investigation into this individual’s activities remains ongoing. Apollo declined to name the individual.
Update: Fortune has learned that the former senior partner is Ali Rashid, a onetime Goldman Sachs banker who worked at Apollo between 2000 and his early 2014 termination. He subsequently did some work with private investment firm called Cain Hoy Enterprises but, according to a receptionist, is not an employee.
A source familiar with the situation says that Rashid has cooperated with Apollo’s investigation. Rashid himself did not return a request for comment, and Apollo declined to confirm or deny that Rashid was the former executive in question. The SEC also did not return a request for comment.
