Pressure from Regulators and Investors Prompts Carlyle Group to Drop Arbitration Clause from its IPO Filing

Carlyle Group will no longer be including a controversial arbitration clause initial public offering filing. The private equity giant had filed its IPO documents last year but has since been pressed by regulators and investors to drop the clause, which would have prevented company shareholders from submitting class action lawsuits and instead require that they go through a confidential arbitration process.

There had been concern from the Securities and Exchange Commission, lawmakers, and investors that the clause would prevent shareholders from bringing claims against the Carlyle Group in the event of wrongdoing. Earlier this month, the private equity group’s spokesperson Christopher W. Ullman said that after talking with the SEC and its investors, the Carlyle Group was withdrawing the proposed provision. Ullman was also quick to clarify that the original intent of the clause was to make the process for potential claims more cost-effective for everyone involved.

However, there is also the possibility that if the company had chosen not to withdraw the arbitration clause, the SEC may not have allowed the IPO to go forward. Senators Robert Menendez (D-NJ), Al Franken (D-Minn.), and Richard Blumenthal (D-Conn.) had even recently written to SEC chairwoman Mary L. Schapiro asking the SEC to block the IPO offering if the clause, which they believed would take away investors’ rights, wasn’t removed.

In their letter, the senators reminded the SEC that private securities litigation remains an “indispensable tool” that allows defrauded investors to get back their losses without needing to depend on the government. They cited the Exchange Act’s Section 10(b), which establishes an investor’s private right of action to file a lawsuit against an insurer for deceitful/fraudulent statements and actions allegedly committed when selling securities. The senators also said that making individuals only be able to go through the confidential arbitration process for shareholder claims would limit their ability to enforce their rights under the Exchange Act’s Section (10b), which would then violate the Act’s Section 29(a)’s statutory language.

The Senators wrote about how they believed that private arbitration significantly limits or doesn’t allow for pretrial discovery, which can then make complex securities claims impossible to prove. They also said that the private arbitration system generally favors the companies that retained their services as opposed to the individual shareholder with a claim. (Ullman said the Carlyle Group decided to take the arbitration clause out even before the senators had sent their letter to Schapiro.)

The Carlyle Group is shooting for its IPO to happen during the first half of the year. Last year, the firm revealed that about 36% of its assets are in private equity funds. Approximately 21% are in the areas of energy and real estate, while approximately 29% are in funds of funds. Carlyle Group has over 1,400 hundred investors in more than 73 nations. Its executives have gotten up to 60% of their compensation based on how the funds they focus on perform—the remaining amount is based on the performance of the firm. The filing says that once Carlyle becomes a public company, it executives will obtain about 45% of their compensation from their own funds’ returns, which is more in line with the industry average.

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Carlyle Drops Arbitration Clause From I.P.O. Plans, New York Times, February 3, 2012

Carlyle Drops Forced Arbitration Clause In IPO, The Wall Street Journal, February 3, 2012

Private equity giant Carlyle files for IPO, Reuters, September 6, 2011

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