Making a failed investment is usually permissible in the PE industry. Making a negligent investment is not. The PE firms now considering the â€œdelist-relistâ€ transactions I wrote about last time (click here to read)Â are jeopardizing not only their investorsâ€™ money, but the firmâ€™s own survival. Â The risks in these deals are both so large and so uncontrollable that if a deal were to go wrong, the PE firm would be vulnerable to a lawsuit by its Limited Partners (“LPs”) for breach of fiduciary duty.
Such a lawsuit, or even the credible threat of one, would likely put the PE firm out of business by making it impossible for the firm to ever raise money from LPs again. In other words, PE firms that do â€œdelist-relistâ€ are taking existential risk. To this old guy, that is just plain dumb.
Before making any investment, a PE firm, to fulfill its fiduciary duty, will do extensive, often forensic, due diligence. The DD acts as a kind of inoculation, protecting the PE firm in the event something later goes wrong with the investment. As long as the DD was done properly, meaning no obvious risks were ignored, then a PE firm canâ€™t easily be attacked in court for investing in a failed deal.
With the â€œdelist-relistâ€ deals however, there is no way for the DD process to fully determine the scale of the largest risks, nor can the PE firm do much to hedge, manage or alleviate them. This is because the largest risks are inherent in the deal structure.
The two main ones are the risk of shareholder lawsuits and the risk that the company, after being taken private, will fail to win approval for an IPO on a different stock market. If either occur, they will drain away any potential profit. Both risks are fully outside the control of the PE firm. This makes these deals a blindfolded and naked crawl through a minefield.
Why, then, are PE firms considering these deals? From my discussions, one reason is that they appear easy. The target company is usually already trading on the US stock market, and so has a lot of SEC disclosure materials available. All one needs to do is download the documents from the SECâ€™s Edgar website. Investing in private Chinese companies, by contrast, is almost always a long,Â arduous and costly slog â€“ it involves getting materials, like an audit, and then making sure everything else provided by the company is genuine and accurate.
Another reason is ignorance of or indifference to the legal risks: many of the PE firms Iâ€™ve talked to that are considering these â€œdelist-relistâ€ deals have little direct experience operating in the US capital markets. Instead, the firmâ€™s focus on what they perceive to be the â€œundervaluationâ€ of the Chinese companies quoted in the US. One PE guy I know described the Chinese companies as â€œmiss-killedâ€, meaning they are, to his way of thinking, basically solid businesses that are being unfairly scorned by US investors. There may well be some good ones foundering onÂ US stock markets. But, finding them and putting the many pieces togetherÂ of a highly-complex “delist-relist” deal is outside the circle of competenceÂ and experience of most PE firmsÂ active in China.
This investment approach, of looking for mispriced or distressedÂ assets on the stock market, Â is a strategy following by many portfolio managers, distress investors and hedge funds. PE firms operating in China, however, are a different breed, and raised money from their LPs, in most cases, by promising to do different sorts of deals, with longer time horizons and a focus on outstanding private companies short of growth capital. The PE firm acts as supportive rich uncle, not as a crisis counselor.
Abandoning that focus on strong private companies, to pursue these highly risky â€œdelist-relistâ€ deals seems not only misguided, but potentially reckless. Virtually every working day, private Chinese companies go public and earn their PE investors returns of 400% or more. There is no shortage of great private companies looking for PE in China. Just the opposite. Finding them takes more work than compiling a spreadsheet with the p/e multiples of Chinese companies traded in the US. Â But, in most cases, the hard work of finding and investing in private companies is what LPs agreed to fund, and where the best risk-adjusted profits are to be made. Â How will LPs respond if a PE firm does a â€œdelist-relistâ€ deal and then it goes sour? This, too, is a suicidal risk the PE firm is taking.