New Jersey’s Bureau of Securities Written Examination of Investment Advisers

August 24, 2012

Many states have unique requirements for their investment advisers. The New Jersey Bureau of Securities, the securities regulator in the state, requires that state registered investment advisers fill out a written examination. These written examinations must be completed annually by the investment adviser firm. The New Jersey Bureau of Securities’ written examination form states that “written examinations do not take the place of on-site examinations, but may alleviate the need to conduct on-site examinations.”  Alternatively, information in the written examination questionnaire may raise red flags for theNew Jersey Bureau of Securities and lead to an on-site examination by regulators.

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Investment Advisers must have Procedures in Place to Safeguard Client Records and Information

August 22, 2012

Pursuant to Rule 30 of Regulation S-P (“Regulation S-P”), investment advisers registered with the U.S. Securities and Exchange Commission (“SEC”) “…must adopt policies and procedures that address administrative, technical, and physical safeguards for the protection of customer records and information. These policies and procedures must be reasonably designed to:

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State Privacy Laws and Investment Advisers’ Recordkeeping Requirements

August 16, 2012

Recently, Maryland and Illinois have passed employment privacy laws that could potentially have an effect on investment advisers and their recordkeeping requirements under both state and SEC rules. Delaware passed a similar privacy law that protects students from infringement by educational institutions. Maryland was the first state to pass a law of this kind in May 2012. Illinois followed a couple months later in July 2012. Several other states have similar bills on the docket for their state legislatures and members of Congress also have a bill to deliberate.

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Investment Advisers Must Make Investment Adviser Representatives Aware of the Need to Update U4

August 15, 2012

Investment adviser representatives must make amendments in a timely manner to their Form U4s when a material change occurs. Typically, this means filing an amended Form U4 within 30 days of the material change. Failure to do so can lead to fines, suspensions, or even being barred from acting as an investment adviser representative. Investment advisers must make sure their investment adviser representatives are aware of this requirement and understand the consequences of failing to update their Form U4s.

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Basics About the IAPD Website

August 07, 2012

The Investment Adviser Public Disclosure (“IAPD”) website was created by the U.S. Securities and Exchange Commission (“SEC”) to provide investors with information about their investment adviser and investment adviser representative. The IAPD was created as a result of a 1996 amendment to the Investment Advisers Act of 1940. The website provides information on both SEC and state registered investment advisers, certain investment adviser firms that are exempt from registration with the SEC or states, and state-registered investment adviser representatives.

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DOL Creates On-Line Tool to Help ERISA Plans Report Violations of 408(b)(2)

August 03, 2012

The U.S. Department of Labor (“DOL”) recently announced a new proposal to provide a web-based tool for ERISA covered retirement plans to report violations of the new 408(b)(2) disclosure requirements.  Under the new 408(b)(2) regulations, as of July 1, 2012 ERISA covered service providers were required to provide retirement plans, to which they provide services, with certain disclosures.  Failure to provide the required disclosures will result in services to the ERISA covered plan being classified as a prohibited transaction under ERISA and the Internal Revenue Code.  The purpose of the new tool is to assist plan sponsors in determining whether they have all the required information and to provide an easy way for plan sponsors to report service providers who fail to make the required 408(b)(2) disclosures.

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Investment Advisers Must Make Consistent Disclosures on Their Form U4s and Form ADVs

August 02, 2012

Investment advisers are required to maintain current and accurate disclosures on their Form ADV documents and Form U4 – Uniform Application for Securities Industry Registration or Transfers Forms. The Form U4 and Form ADV each have sections that require disclosure of the same or similar information regarding the investment adviser and its investment adviser representatives.   Examples of disclosure information that is required by both the Form U4 and Form ADV include educational and business background, outside business activities, and regulatory disclosures.  If the information provided is inconsistent between the Form U4 and the Form ADV it can be an immediate red flag to regulators that an investment adviser is not maintaining current and accurate information as required.  Not providing required disclosure information or failing to update the required information for the Form U4 or the Form ADV can result in regulatory violations and penalties.  In order to avoid such regulatory violations and penalties, investment advisers and their investment adviser representatives must maintain the Form U4 and Form ADV documents to ensure that the information provided is current, accurate, and consistent at all times.

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Bachus Shuts Down SRO Bill for Investment Advisers

August 02, 2012

Last week, U.S. House Financial Services Committee Chairman Spencer Bachus (R – AL), decided to at least temporarily put the Investment Adviser Oversight Act of 2012 (“Investment Adviser Oversight Act”) on hold. This decision came on the heels of Representative Maxine Waters’ (D – CA) introduction of the Investment Adviser Examination Improvement Act of 2012 (“Investment Adviser Examination Improvement Act”).

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Illinois Becomes Third State to Pass Privacy Law Conflicting with SEC Social Media Compliance Regulations for Investment Advisers

August 01, 2012

Today Illinois Governor Pat Quinn signed a new law that makes it unlawful for employers to request passwords to social media accounts or from demanding access to social media accounts from potential and current employees. Illinois became the third state to pass such legislation after Maryland and Delaware recently adopted similar laws in May and July. After signing the law Governor Quinn said, “Members of the workforce should not be punished for information their employers don’t legally have the right to have. As use of social media continues to expand, this new law will protect workers and their right to personal privacy.”

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Not Maintaining a Current and Accurate Form U4 Can Result in Disciplinary Actions

July 27, 2012

The Form U4, the Uniform Application for Securities Industry Registration or Transfer, is the form used by investment advisers, broker-dealers, or issuers of securities to register representatives in the appropriate jurisdictions and/or with the appropriate self-regulatory organizations.  As a registered investment adviser, you must make the determination of which individuals in your firm will meet the definition of an investment adviser representative, complete a Form U4 for each individual, and submit it to the applicable state securities regulators in order for the investment adviser representatives to be properly licensed under the firm.  However, it is important to understand that the obligation for completing the Form U4 does not stop once the investment adviser representative is licensed.  Investment adviser representatives are obligated to amend and update the information required by the Form U4 as changes occur and not doing so can result in disciplinary actions.

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