On December 3, 2018 the Nebraska Department of Banking and Finance (NDBF) released their 2018 Cybersecurity Survey of Nebraska-Registered Investment Advisers. NDBF surveyed fifty-seven Nebraska registered investment advisers. The survey focused on devices used in advisory activities, Wi-Fi access points, passwords, encryption policies, and anti-virus/anti-malware services. The full report can be viewed here.
The Securities and Exchange Commission (SEC) has proposed a new business continuity and transition plan rule that would require investment advisers to develop business continuity and transition plans tailored to the specific needs of their investment advisory business. In its guidance on the new rule, the SEC noted that investment advisers increasingly rely on technology to carry out both vital and day to day functions. When those technological processes are not available, either due to severe weather, system failure, or other causes, investment advisers should have a plan in place to minimize any harm or disruption to their clients’ interests. An investment adviser should also consider what it would do if key personnel are lost or unavailable, or if the investment adviser’s physical office is temporarily or permanently unusable. Click here to read the SEC’s proposed rule in its entirety.
On May 11, 2016, the Securities Bureau of the Nebraska Department of Banking and Finance (NDBF) adopted a new administrative rule that excludes investment advisers to private funds from the definition of “investment adviser”. This means that an investment adviser who solely advises private funds will not be subject to Nebraska’s investment adviser books and records requirements among other requirements for state registered investment advisers.
The Securities Bureau of the Nebraska Department of Banking and Finance recently released an annual renewal notice reminding investment advisers registered with the State of Nebraska that their investment adviser registration expires on December 31, 2010. The notice by the Nebraska Securities Bureau states that in order to renew registration by January 1, 2011, all renewal fees must be paid by December 13, 2010 and all required documents must be submitted by December 23, 2010. One of these required documents is the new narrative version of Form ADV Part 2. This means that all investment advisers currently registered with State of Nebraska must submit the new Form ADV Part 2 via the CRD/IARD system on or before December 23, 2010. (Please note that this deadline set by the Nebraska Securities Bureau does not apply to a SEC registered investment adviser and is only notice filed with the State of Nebraska.)
A recent consent order in a matter before the Nebraska Securities Bureau serves as a reminder to registered investment advisors of the necessity to clearly and accurately disclose that advisory services are offered by the registered investment advisor and not an outside business activity of the investment advisor representative.
In today’s edition of the Omaha World-Herald, Jack Herstein, deputy director of the Securities Bureau of the Nebraska Department of Banking and Finance, noted that the Securities Bureau has approved eight (8) professional designations for use by registered investment advisers in Nebraska.
The issue of custody over client funds and securities seems to be one of the most variant issues among regulators. One common form of custody is an advisor’s authorization to have fees deducted directly from client accounts. While the SEC and most states consider this practice a custody situation, the procedures advisor firms must implement vary from regulator to regulator. Therefore it is important for all investment advisors to fully understand and comply with the custody requirements that apply to their firm.
The Nebraska Securities Bureau recently issued a special notice to all federally covered and state registered investment advisors in Nebraska requesting that “firms prohibit the use of all professional designations that state or imply a specialized knowledge of the needs of senior investors by their … investment adviser representatives registered in Nebraska. This prohibition should cover all mass mailings, advertising, business cards and letterhead of the … representative.” (The Nebraska securities regulator noted that the CFA, CFP, ChFC or CPFS are still acceptable professional designations.) This effort appears to be aimed directly at barring designations such as the Certified Senior Advisor (“CSA”). Although this special notice is crafted as a request instead of a rule, the Nebraska Securities Bureau is warning investment advisors that it will pursue enforcement actions if an investment advisor representative uses a professional designation in a manner misleading to investors.
Along with paying annual renewals via IARD system and updating your Form ADV Annual Amendment, it’s important to remember that many state securities regulators also require a state registered investment adviser firm to submit an annual financial statement and/or other documents (e.g., proof of continued coverage of a surety bond, investment advisory client agreement if material changes) directly to the state securities regulator (outside of the IARD/CRD system).
The United States Securities and Exchange Commission (“SEC”) recently issued a final set of rule amendments under the Investment Advisers Act of 1940, primarily aimed at enhancing the regulatory framework governing investment advisers to private funds. The new set of rules, as described in SEC Release No. IA-6383, is designed to protect investors who invest directly or indirectly in private funds. It focuses on increasing transparency in compensation arrangements and prohibiting conflicted arrangements involving private funds. Through an audited financial statement requirement, the new rules also aim to prevent fraudulent activities by registered investment advisers advising private funds. Finally, this set of new rules includes an amendment requiring all SEC-registered investment advisers to document in writing the annual review of their compliance policies and procedures.
