Congressional Testimony: America for Sale? An Examination of the Practices of Private Funds

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America for Sale? An Examination of the Practices of Private Funds

Committee on Financial Services
U.S. House of Representatives

November 19, 2019

Testimony Submitted by Americans for Financial Reform:

The private equity industry controls a large and growing portion of the economy, including businesses and other assets like housing, that workers and consumers rely upon for jobs, goods and services. It has increased in size eight-fold over the past two decades from $700 billion in global assets in 2000 to $5.8 trillion in 2018. Today, the private equity industry controls 8,000 companies in the United States, more than twice as many companies as are publicly traded on U.S. stock markets.

The business model followed by the dominant private equity firms today is fundamentally predatory and extractive. Current law permits and even encourages private equity firms to be structured in such a way that the general partners – the key individuals controlling the fund and holding decision making power over portfolio firms owned by the private equity fund — rewarded for maximizing immediate returns to themselves, and shielded from liability, accountability, and transparency for the decisions they make. They take advantage of this privileged position to extract value from portfolio firms, as well as limited partner outside investors.

A major mechanism of value extraction is the use of debt. This begins with the leveraged buyout transaction in which the target firm is acquired for the private equity owner’s portfolio. These LBO transactions are funded with high proportions of debt, with the target firm used as collateral. The acquired firm – but not the private equity fund which is the beneficiary of the transaction – is responsible for repayment of the acquisition debt. All too often the portfolio firm emerges from the LBO with crushing levels of debt that force layoffs and prevent it from investing in its future due to the burden of debt repayment. Even in cases where an unsustainable debt burden created by private equity acquisition forces bankruptcy, those harmed by the failure of the firm have no recourse to the private equity owner. The debt excesses of private equity have driven levels of high-risk corporate debt to record levels, creating risks to the broader economy and the financial system.

Once the private equity firm owns the portfolio company, it is able to use its managerial control to extract value from the firm and its customers in other ways. There is a repeated record, across multiple industries, of private equity owned firms and their owners taking advantage of legal and regulatory loopholes, or simply defying authorities to enforce limits on exploitative business practices, in order to maximize short run profits for the fund at the expense of worker and customer well-being. These extractive practices include simply forcing portfolio firms to pay unnecessary fees or charges to the private equity owner, or siphoning value out of the portfolio firms through arrangements like the sale and lease back of the sites where they do business. They also include creating monopolies or oligopolies by purchasing multiple firms in the same field, so that customers can be squeezed for monopoly profits. Private equity owned firms also exploit customers who have limited recourse in order to maximize their profits, such as taking advantage of tenants in private equity owned real estate, or extreme cost cutting in private equity owned health care companies that endanger the health of patients.

Even when the long-term viability of the portfolio firm is damaged by these practices, or the firm goes bankrupt, private equity owners have generally extracted enough value to ensure their own profit on the transaction. Since the private equity insiders generally do not have financial or personal liability for the debt owed or legal judgements against their portfolio firms, they can take these steps with relative impunity, so long as they have made back their own small equity investment in the deal.

Private equity firms claim to make their money by improving the operations, capacity, and business strategy of the companies they acquire. Some PE firms or transactions actually do this. But as documented in the testimony below, all too often the profits of private equity come not from genuinely improving the management of the portfolio firm but through predatory actions that create long-run damage for the workers, community, and customers of that firm.

Private equity firms also claim that their returns produce benefits for the broader investor public through the sharing of returns with limited partner investors, including union and other public pension funds. But their promises often rely on manipulated or misleading numbers, in addition to often resting on activities that will harm the medium and long-term interests of their own outside investors as well as other stakeholders in portfolio companies. Private equity firms benefit from favorable treatment and exemptions under the securities laws, which allow them to raise funds from outside investors without disclosing reliable data on their returns, fees and costs, or activities.

This testimony documents and shines a spotlight on some of the abusive practices of private equity. These include destroying retail jobs, saddling people with unmanageable medical bills through surprise billing, gouging students at for-profit colleges that fail to provide an adequate education, exacerbating the affordable housing crisis by buying up single-family houses, apartment buildings, and manufactured home communities after the financial crisis and raising rents and harassing tenants. We describe how private equity actions threaten the well-being of workers, consumers, investors, and communities, and how the measures taken by private equity to finance their activities threaten the integrity of debt markets. Private equity extraction is contributing to growing inequality and to increasing economic hardship and vulnerability for millions of Americans.

This testimony also describes and analyzes a critical legislative response to the issues in the private equity business model, the Pocan-Jayapal Stop Wall Street Looting Act (SWSLA, HR 3848). This legislation directly attacks the perverse incentives that reward predatory practices by private equity general partners. By closing loopholes and making fundamental changes in legal liability for private equity general partners, it would curb the excesses of private equity insiders, without affecting productive partnerships that genuinely assist portfolio firms. Critically, the SWSLA is designed to address the incentives faced by the general partners of the private equity firm, and is aimed squarely at ending the power of private equity insiders to engage in behavior that exploits and harms portfolio firms and limited partners, and at strengthening workers, investors, and other stakeholders in dealing with PE. We urge Congress to stand up for working people and for communities, patients and consumers, and enact the  Stop Wall Street Looting Act.