Reminder: The SEC Expected to Act on Proposed Amendments to Form ADV in 2016

On May 20, 2015, the SEC issued proposed amendments that, if adopted, will effect significant changes in respect of Form ADV. [1]Form ADV is used by managers to register as investment advisers or file as “exempt reporting advisers.” [2] The comment period relating to these proposed amendments ended on August 11, 2015, and it is generally anticipated that the SEC will act on these proposed amendments in early 2016. If adopted in their current form, the proposed amendments would usher in expansive reporting requirements relating to separately managed accounts (“SMAs”), codify reliance on so-called “umbrella” registration, amend certain books and records requirements and provide for additional disclosure obligations.

I. The Goals of the Proposed Amendments

The SEC’s proposed amendments seem prompted, in large part, by the goal of acquiring more information to assess purported risks that asset managers may pose to the U.S. financial system, in addition to modernizing what many in the industry view as an antiquated form that is not necessarily well-suited to address more complex structural arrangements (some of which are not uncommon). In fact, the SEC Chair, Mary Jo White, stated in the open meeting issuing the proposed amendments that by considering the proposed amendments, the SEC was seeking to grapple with the growing complexities of the asset management industry. [3]

II. Separately Managed Accounts

Under the proposed amendments, registered investment advisers will be required to submit more detailed information in respect of advised SMAs, including (1) any custodians that account for more than 10% of SMA RAUM; (2) a percentage breakdown of SMAs invested across 10 asset classes; and (3) depending on certain factors such as the registered adviser’s aggregate AUM, further information in respect of advised SMAs, which may include gross notional exposure, and weighted average amount of borrowing.

III. Umbrella Registration

The proposed amendments also seek to clarify past guidance that the SEC has issued in respect of “umbrella” registration—that is, the usage of a single Form ADV for multiple advisory entities that function as a single business. While the SEC had already authorized this practice in a 2005 letter to the American Bar Association’s Subcommittee on Private Investment Entities, [4] Form ADV is not currently tailored to address adequately the concept.

For an investment adviser to avail itself of umbrella registration under the proposed amendments, it (and each of its Relying Advisers) generally must:

• Advise only private funds and clients in SMAs that are qualified clients eligible to invest in the private funds advised by the investment adviser or Relying Adviser (with the SMAs pursuing substantially similar investment objectives and strategies as the private funds);
• Have its principal office and place of business in the United States; and
• Operate under a single code of ethics and a single set of written policies and procedures and have the same CCO. [5]

While the proposed amendments did not introduce any new substantive concept in respect of umbrella registration, the SEC stated in the proposed amendments release that it hopes that the proposed amendments would make this registration option more widely known to investment advisers in general.

IV. Additional Disclosure Matters

The proposed amendments also include certain other significant disclosure matters that may be of interest to the investment management industry. For instance, the proposed amendments would require disclosures relating to (1) the extent that social media is used in the adviser’s business; (2) the use of outsourced CCOs; and (3) the adviser’s balance sheet assets (as opposed to assets under management).

The proposed amendments represent the first significant revisions to Form ADV since the regulations promulgated in the immediate aftermath of the Dodd-Frank Wall Street Reform and Consumer Protection Act, and would add to the administrative burden that Form ADV filers would experience in connection with their filing obligations. While the SEC may not adopt all of the proposed amendments in their current form, many investment management industry participants generally expect the SEC to adopt a significant portion of the proposed amendments, with most expecting the SEC to do so early in 2016.

[1] See “Amendments to Form ADV and Investment Advisers Act Rules”, Release No. IA-4091 (May 20, 2015).

[2] The SEC defines “exempt reporting advisers” as investment advisers that are exempt from registering under the Investment Advisers Act of 1940 through the Venture Capital Fund Adviser Exemption (Section 203(l) of the Investment Advisers Act of 1940) or the Private Fund Adviser Exemption (Section 203(m) of the Investment Advisers Act of 1940). See Note 1 above, p. 29.

[3] See “Statement at an Open Meeting on Investment Company and Investment Adviser Reporting” by Chair Mary Jo White (May 20, 2015)..

[4] See American Bar Association Subcommittee on Private Investment Entities, SEC Staff Letter (Dec. 8, 2005) at Question and Answer G.1.

[5] Umbrella registration would be optional. However, it should be noted that it would be unavailable to Exempt Reporting Advisers and non-U.S. advisers that do not have their principal place of business in the U.S.