The passing of the Dodd-Frank Act exposed all private fund advisors and Private Equity Funds to the Advisor Act of 1940 and the subsequent Compliance Program Rule 206(4)-7. The Presence Exams initiated by the OCIE and ensuing actions taken against firms by the SEC sent a clear message that compliance in Private Equity is a real risk and needs to be taken seriously.

Cybersecurity Compliance & Technology Controls: A New Requirement for PE

While the general compliance guidelines provided by the SEC are well within the experience of most firms to implement and execute, cybersecurity and IT controls is one area firms struggle to execute with confidence. Private Equity is learning what other regulated industries have discovered, which is that there is a lack of clarity on what needs to be done to be compliant. The integrity of and access to data is the cornerstone of most compliance standards. However, the technology, processes, and controls needed to achieve that standard continuously evolve based on the evolution of technology and the threat landscape.

Portfolio Company Compliance: A Trend Towards Centralization?

In addition to internal controls, PE firms are finding portfolio company level compliance a major source of risk as standards like PCI, HITRUST, and vendor auditing become critical even in mid-size organizations. The challenge is that portfolio companies in the mid-market often lack the economies of scale and expertise to execute an effective and efficient compliance strategy. This inexperience leads to EBIDTA impacting overspend or suffering from the negative valuation impact of poor audit results that get uncovered during exit due diligence or pre-IPO. In the worse case scenario, portfolio companies overspend and still fall short of compliance standards.

Without Clear Guidance, PE is Accountable

To make matters worse, it is clear that the SEC, based on varying alerts and statements, has yet to introduce actionable cybersecurity compliance guidance beyond the broad areas defined below:

  • The accurate creation of required records and their maintenance in a manner that secures them from unauthorized alteration or use and protects them from untimely destruction;

  • Safeguards for the privacy protection of client records and information; and

  • Business continuity plans

To fulfill these broad requirements, CCO’s are left with broad unanswered questions: 

  • What processes need to be put in place?

  • What tools do I need to buy?

  • Do I hire or outsource?

  • How much should I budget?

Effective Cybersecurity = Valuation 

These factors are creating a trend where portfolio compliance is falling under the governance of the PE firm, and in some cases, even establishing a centralized service compliance model. This emerging trend goes against the traditional “hands off” approach many PE firms have taken in the past, but firms adopting this approach are seeing tangible valuation gains and ROI in what has been seen as a Cost Center in the past. Having and maintaining an effective cybersecurity program is not something to be feared. With a holistic and well thought out approach, the program can actually be used to increase value. To achieve this, risk assessments will be performed, policies will be written, and controls (both technical and procedural) will be implemented. This is an ideal time to extend those policies and controls to your entire portfolio. 

Centralized Cybersecurity Compliance Using A “Hands Off” Approach 

The SEC will eventually deliver more specific guidance on Cybersecurity Compliance for PE firms, and the controls required are going to be very similar in nature to the standards already in existence. Whether it is Sarbanes– Oxley (SOX), PCI-DSS, GLBA, FISMA or HIPAA, each standard has its own nuances, and compliance can be achieved with the same controls and execution strategy. Through intelligent mapping of the required cybersecurity controls, a common and fulfilling “hands off” model framework can be applied so that all entities enjoy low cost, standardized solutions that reduce the work effort to achieve base compliance. The challenge is applying these standards in a way that ensures portfolio companies have the appropriate separation, independence, and portability to enable an efficient exit strategy.

Cybersecurity & Compliance Best Practices

The benefits of this approach are obvious: economies of scale, standardization that can be executed during the TSA as a templated approach, predictability in audit response, and ultimately valuation building. The complexity of this compliance model lies in creating an architecture that allows the following: 

  • Enabling Separation and operational independence of portfolio companies from PE operations;

  • Creating Portability so Portfolio companies can be divested and remain whole on compliance;

  • Repeatability regardless of the compliance standard;

  • Independence to execute

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