For decades, private equity funds have collected "transaction fees" from their portfolio companies, often related to mergers or initial public offerings. Sometimes they share with their investors, sometimes they don't. Sometimes the fees are for tens of thousands of dollars, sometimes for tens of millions. Either way, the practice gooses positive returns and lowers the losses from lousy ones.

    Back in April, however, an SEC attorney named David Blass threatened to upset the gold-plated apple cart. He gave a speech arguing that private equity firms receiving transaction fees should be required to register as broker-dealers, rather than simply as investment advisors. In short, he used private equity's own justification against it: If private equity charges transaction fees in lieu of hiring an outside investment bank, then that would mean that private equity is doing the work of an investment bank and should be similarly categorized for regulatory purposes.

    Blass's comments sent shock waves throughout private equity. Complying with broker-dealer registration is costly, and opens up a depth of regulatory scrutiny to which private equity is unaccustomed.

    What we didn't know at the time was that Blass's speech came after the SEC had received a whistleblower complaint from someone within the private equity industry, privately alleging what Blass would soon discuss publicly. The complaint was first reported yesterday by Crain's New York, which only identified the whistleblower as a "senior private equity insider," and added that he or she stands to collect up to 30% of any related proceeds from SEC penalties.

    Earlier this morning I spoke with the whistleblower's attorney Jordan Thomas, a former SEC official and current partner with Labaton Sucharow. He tells me that his client is indeed a senior private equity exec ("not a service provider") and that his or her firm is unaware of his client's identity. Thomas adds that the complaint specifically names several firms, although he declined to name them.

    Thomas says that he has no personal opinion on the appropriateness of transaction fees in general, but clearly believes that private equity firms have been violating securities laws by charging them without first registering as broker-dealers. And given how much money private equity firms are managing – not to mention those on the other sides of buyout deals – he believes greater oversight is appropriate.

    几十年来，私募基金一直在从它们投资的公司那里收取“交易费”，这笔费用通常和并购或者首发上市有关。有时它们和投资者分享收益，有时它们将报酬据为己有。这项费用低则数万美元，高则数千万美元。无论怎样，私募基金总能实现正回报，减少投资失误带来的损失。

    但今年4月份，美国证监会（SEC）律师大卫•布拉斯威胁要打破私募基金的镀金如意算盘。大卫表示，应该要求收取交易费的私募基金公司注册为券商，而不仅仅是投资顾问。简而言之，他的做法就是以其人之道还治其人之身：如果私募基金取代外部投资银行来收取交易费，那就意味着私募基金承担了投行的工作。因此从监管角度出发，私募基金就应该和投行列为同类机构。

    布拉斯这番话在私募基金界引起了轩然大波。注册为券商后将出现很高的合规成本，由此带来的深度监管也会让私募基金公司很不自在。

    我们不知道的是，在布拉斯做出此番表态之前，已有私募基金从业者向美国证监会提出了举报，内容和布拉斯随后的公开发言一致。前两天，《克莱恩商业周刊》（Crain's New York）首先报道了这次举报事件，但只将举报者描述为“资深私募基金业内人士”。报道还指出，举报者的要求是最多获得SEC罚款所得收入的30%。

    周一早上，我和举报者的律师乔丹•托马斯进行了接触。托马斯曾在美国证监会供职，现在是Labaton Sucharow律师事务所合伙人。他告诉我，他的客户确实是一位私募基金高管（“而不是服务供应商”），这位客户所在的公司并不知道其身份。托马斯还说，举报明确提到了几家公司，但他拒绝透露具体是哪几家。

    托马斯表示，总的来说，他对收取交易费是否合适并无个人意见。但他显然相信，私募基金公司在尚未注册为券商的情况下收取费用违反了证券法。考虑到私募基金公司掌握的资金规模——更不用说收购交易中的买方资金了——他认为加强监管是恰当的做法。

    "No one is really monitoring or examining what these funds are doing, often including their own investors," Thomas explains. "If an investor thinks something is wrong, their only real way to get information is to file suit. And then they risk losing access to that fund, and others, in the future."

    Private equity's counterargument is twofold. First, private equity funds are acting on their own behalf, rather than as a third party whose only involvement in the transaction is as a middleman. If one corporation sells assets to another corporation without the use of investment banks, for example, there is no law requiring the corporations to register as broker-dealers. As to Thomas' broader point, private equity sources point out that the industry already is regulated via the investment advisor rules -- something PE fought, and lost, as part of Dodd-Frank -- and that any additional oversight would have to be codified by Congress, not the SEC.

    What's particularly interesting about this battle is that it comes as private equity funds are sharing more and more of their fees with limited partners, such as public pension systems, university endowments and nonprofit foundations. In fact, more than 60% of funds closed since the beginning of 2012 rebate every dime of transaction fees to LPs. If private equity firms are required to register as broker-dealers because of transaction fees, many might just choose to exclusively hire investment banks -- thus transferring cash from LPs to Wall Street.

    At the same time, there are persistent concerns that private equity funds don't always disclose the existence of all incoming fees and, as Thomas said, LPs have little investigatory power outside of court-ordered discovery. Broker-dealer registration may solve this problem for LPs, although the peace of mind may be offset by the decreased fee income. In other words, would investors rather get most of all fees or all of no fees?

    For Jordan Thomas and his client, however, it comes down to a question of current law, which they see as black-and-white. "Private equity firms have all the hallmarks of being broker-dealers, but they haven't been registering as broker-dealers," Thomas says. "It's really that simple."   

    托马斯解释：“其实没有人真正在监督、检查这些资金的用途，就连出资人也经常忽略这一点。如果投资者认为出了问题，他们获得信息的唯一可靠途径就是提起诉讼。随后他们就可能和这笔资金或者其他人失去联系。”

    私募基金的反驳包括两部分。首先，私募基金的行为代表其自身，而不仅仅是作为中间人参与交易的第三方。举例来说，如果一家公司在不借助投行的情况下向另一家公司转让资产，并没有哪项法律要求这两家公司注册为券商。对于托马斯的整体观点，私募基金方面指出，私募基金行业已经受到了投资顾问条例的规范——这是多德-弗兰克（Dodd-Frank）法案的一部分，私募基金曾就此提出反对，但以失败告终——进一步监管必须经国会立法，而不是由证监会发号施令。

    这场争论中特别有意思的一点是，目前私募基金正越来越多地和有限合伙实体分享费用收入，比如公共养老金、大学所获捐款以及非营利基金会。实际上，2012年初以来到期的私募基金中，60%的基金将所有交易费都转交给了有限合伙实体。如果出于交易费的缘故而要求私募基金公司注册为券商，许多私募基金公司就有可能干脆选择专门聘用投资银行，以便将现金从有限合伙实体转移到华尔街。

    同时，一直有人担心私募基金并不总是披露所有费用收入。而且正如托马斯所言，除了法院命令外，有限合伙实体几乎没有权力开展调查。让私募基金注册为券商可能为有限合伙实体解决这个问题，只是费用收入的下降可能抵消进行注册所带来的心理安慰。换句话说，投资者是愿意得到大多数费用收入呢？还是愿意一无所获？

    不过，对乔丹•托马斯及其客户来说，此事关乎现行法律，在他们看来黑白分明。托马斯说：“私募基金公司有券商的所有特征，但它们还没有注册为券商，问题就是这么简单。”（财富中文网）

    译者：Charlie