Conflicts of Interest in an Evolving Landscape: Potential Areas of SEC Examination Risk for GP‑Led Secondary Transactions

Over the last several years, GP‑led secondary transactions and continuation funds have experienced dramatic growth. In a market environment characterized by fundraising challenges, high interest rates and diminished M&A activity, GP‑led secondaries offer sponsors a flexible and unique tool to manage competing strategic demands by offering liquidity to existing investors while preserving the sponsor’s ability to optimize the value of existing “trophy” portfolio companies. However, the conflicted nature of GP‑led secondaries has garnered attention from the SEC and other regulatory authorities in recent years, including in the since-vacated private fund adviser rules. In particular, the SEC’s emphasis in its 2025 examination priorities on ensuring that advisors “adequately mitigate and fairly disclose conflicts of interest” suggests that GP‑led secondaries will be an area of continued focus in future SEC examinations and enforcement activity irrespective of the changing U.S. administration. In a guest article, Willkie Farr & Gallagher attorneys Nathaniel Marrs, Matthew Block and Morgan Aveni explore several potential ways in which GP‑led secondaries may garner greater SEC scrutiny in the future, including as to conflicts of interest in the auction process, the adequacy of LP advisory committee consents, the information parity between all types of participating investors and the equitable allocation of transaction expenses. See “SEC 2025 Examination Priorities Feature Essential Compliance Concerns, Emerging Technologies and Several Notable Omissions” (Dec. 12, 2024).

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