Today, the SEC announced the adoption of amendments to several rules under the Investment Advisers Act of 1940 and to Form ADV, the investment adviser registration and reporting form. Although there is a long lead-in time to get in compliance with the new rules and Form ADV, advisers should consider beginning work now to ensure compliance by next year. The SEC proposed the Form ADV amendments in May 2015 and the final release addresses three areas:

(i) The adopted amendments will require advisers to aggregate information about the separately managed accounts they advise and, according to the adopting release, are designed to improve the depth and quality of the information collected by the SEC. The enhanced information also will be used to facilitate the SEC’s risk management initiatives and risk-based exam program.

(ii) The amendments incorporate a method for adviser entities operating a single advisory business to register with the SEC using a single Form ADV (i.e., umbrella registration). These changes relate to the 2012 No-Action Letter of the Office of Investment Adviser Regulation to the American Bar Association, Business Law Section, which provided a method for certain affiliates of a registered adviser to “rely” upon the registration of its affiliated adviser when conducting a single advisory business. These amendments formally incorporate this concept into Form ADV and are intended to make the availability of umbrella registration more well known to advisers and provide more data and a clearer picture of registrants utilizing umbrella registration to the SEC.

(iii) The amendments make other clarifying, technical, and other amendments to current items and instructions, which are based upon the staff’s experience with the current Form ADV and responses to inquiries from advisers and their service providers.

Additionally, the SEC has adopted various rule amendments, including amendments to the “books & records” rule, Rule 204-2, related to making and keeping records related to performance calculations and rates of return communicated in writing by an adviser to any person, as well as certain other technical amendments.

The amendments become effective 60 days after publication of the adopting release in the Federal Register. Compliance with the revised books & records rule will be required with respect to any communication circulated after Oct. 1, 2017. Any initial Form ADV filing or amendment to an existing Form ADV that is filed on or after Oct. 1, 2017, will be required to comply with the amended Form ADV. The SEC does not expect the electronic filing system (the IARD) to be able to accept the amended Form ADV until around the time of the 2017 compliance date, so it does not appear that early adoption will be an option.

If you have questions, they can be directed to Greenberg Traurig’s Investment Regulation Group or your Greenberg Traurig attorney.

Tags: accounts, ADV, amendments, federal register, Form ADV, Greenberg Traurig, gtlaw, gt_law, IARD, investment advisers act, retirement accounts, richard m. cutshall, risk management, SEC
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Photo of Richard M. Cutshall Richard M. Cutshall

Richard M. Cutshall is Co-Chair of the firm’s Financial, Regulatory and Compliance Practice, Co-Chair of the firm’s Private Funds Group, and Co-Chair of the firm’s Investment Management Group. Rich has experience representing clients in a variety of investment management, general securities, and corporate

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Richard M. Cutshall is Co-Chair of the firm’s Financial, Regulatory and Compliance Practice, Co-Chair of the firm’s Private Funds Group, and Co-Chair of the firm’s Investment Management Group. Rich has experience representing clients in a variety of investment management, general securities, and corporate matters, including the representation of mutual funds, ETFs, and other funds registered under the Investment Company Act of 1940; fund and ETF independent directors; unregistered investment funds; federally registered, state registered, and federally and state exempt investment advisers; broker-dealers; and an array of public and private companies.

Rich represents investment adviser clients at all stages of their life cycle, from concept and formation through registration, daily operation through wind-down and exiting the business, including representing investment adviser clients on both the buy-side and sell-side in M&A transactions. He also represents clients in all aspects of investment company practice, including organizing and forming new funds and ETFs, registering mutual funds and ETFs with the SEC, and the acquisition and merger of public funds.

In the course of representing investment advisers and public and private funds, Rich advises Greenberg Traurig’s clients on all aspects of securities regulatory compliance, particularly including new and existing SEC rules; SEC examination, regulatory, and investigative initiatives and sweeps; the SEC’s proposal, adoption, and implementation of new regulations, such as the recently rewritten investment adviser marketing rule; and finding compliance solutions related to the regulatory scheme applicable to investment advisers and investment funds, including implementing both novel and long-standing SEC regulatory guidance and interpretations. He also advises clients on the day-to-day aspects of corporate governance, board and adviser fiduciary responsibility, and SEC compliance, as well as assisting clients in all aspects of SEC and other regulatory examinations.

Rich has given presentations on and assists a variety of investment management clients with their compliance with anti-money laundering laws, and has performed annual independent third party audits of several clients’ anti-money laundering policies, programs and controls.

Rich also has experience representing clients in many industries in the sale or acquisition of businesses, formation of corporate entities, sophisticated contract negotiations, and in obtaining, renewing and renegotiating the terms of financing business operations. He routinely works with clients’ chief executive officers, chief financial officers, directors, and in-house general and assistant general counsels, including occasionally working from clients’ corporate headquarters upon request. Rich works with corporate and finance clients of all sizes, from startup family-run businesses and entrepreneurial endeavors to Fortune 500 clients. He also has experience representing clients across many industries, including health care, data management, retail product display and advertising design and manufacturing, industrial manufacturing, and real estate management and brokerage industries.

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