Monthly Archives: August 2017

Fund disputes: key drivers, common themes and lessons learned

We are often asked by managers why investor fund disputes happen and how they can be prevented. It’s a bit like asking, “can car accidents be avoided?” and I’d answer both questions with a “Not always, but there are certainly situations that can be avoided.” As my old headmaster used to say to me “Gobin, be in the right place at the right time”, (although more often than not I wasn’t…). As an investor and as a manager, you absolutely need to be. I guess that’s why I became a lawyer instead!

Investor fund disputes come in all shapes and sizes, from issues regarding valuation of fund assets, fund liquidity, inter-fund transactions, insider trading, ponzi-schemes, to undisclosed manager fees, misallocated expenses and undisclosed conflicts of interest, to name just a few. One of the most common forms of investor fund disputes revolves around the use of side letters, particularly relating to enforceability, inconsistencies between side letters and offering/constitutional documents, and the use of nominees to enter into side letters on the investor’s behalf. Another difficult question relates to the investor’s ability to challenge audit holdbacks, and when excessive use of holdbacks constitutes a red flag to investors.

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