When you prepare your Form ADV annual amendment, the central task is capturing material changes since your last filing — new or changed conflicts of interest, fees, services, affiliations, and disciplinary events — and disclosing them clearly and completely.
Now that we are in the first quarter of the new year, most registered investment advisers (“RIA” or “Firm”) are busy preparing their annual Form ADV amendment. This annual amendment is due within 90 days of the end of the Firm’s fiscal year, and the majority of RIAs have a fiscal year end of December 31.
Updating the Form ADV can be a struggle for Firms, especially when trying to determine what items need to be disclosed. The level of anxiety caused by this requirement is understandable given that improper disclosures or a lack thereof in Form ADV can lead to enforcement actions and monetary sanctions by regulators.
The Cost of Getting Form ADV Disclosures Wrong
The SEC has repeatedly brought enforcement actions against advisers for inadequate or inaccurate Form ADV disclosures. Below are two examples:
- Allison, LLC and Stephen D. Allison, Inv. Adv. Act Rel. No. 4673 (March 29, 2017) – In this enforcement action, Stephen D. Allison and Allison, LLC (“ALLC”), a registered investment adviser wholly owned and controlled by Allison, were cited for, among other things, repeatedly failing to disclose in ALLC’s Form ADV that ALLC’s distressed financial condition was reasonably likely to impair the Firm’s ability to meet contractual commitments to clients. Additionally, the SEC found Allison and ALLC had a conflict of interest with their clients, as they were incentivized to choose fund share classes that carried 12b-1 fees over those that did not. Allison and ALLC did not disclose this conflict of interest and misrepresented in ALLC’s Forms ADV and updating amendments that Allison did not receive 12b-1 fee payments. As a result, the SEC found willful violation of Sections 206(2), 207 and 204(a) of the Advisers Act,[1] and revoked the Firm’s registration as an investment adviser.
- Source Financial Advisors, LLC and Michelle M. Smith, Inv. Adv. Act Rel. No. 4702 (May 5, 2017) – In this enforcement action, the SEC cited Michelle M. Smith (“Smith”) and Source Financial Advisors, LLC (“Source”), the registered investment adviser that Smith founded, for misrepresentations in Smith’s Form ADV Part 2B, which falsely stated that Smith had earned a marketing degree from Radford University. In addition, the SEC found that from 2012 through 2016, Source had misrepresented in marketing materials distributed to clients and prospective clients that Smith held the Certified Financial Planner (“CFP”) credential, when in fact Smith had only taken CFP coursework. As a result, the SEC found that Source and Smith had violated Sections 206(2) and 207 of the Advisers Act and mandated they inform clients in writing of the Order and pay a penalty in the amount of $35,000.[2]
Not having adequate and appropriate disclosures in Form ADV is one of the biggest regulatory risks for RIAs. Unfortunately, there is no all-inclusive manual outlining everything that should be included in Form ADV. The closest to this is the Form ADV Instructions[3], which leaves a lot to interpretation.
Conflicts of Interest to Review for Your Form ADV Amendment
When working on the Form ADV annual amendment, there are several conflict areas to consider. The chart below can serve as a helpful guide[4] in inventorying disclosable areas, events, and conflicts of interest. Remember, all material conflicts of interest must be disclosed, along with details on how the Firm addresses the conflicts.
| Category | Disclosable Areas, Events & Conflicts of Interest |
|---|---|
| Brokerage and Trading |
|
| Code of Ethics |
|
| Compensation (direct and indirect) |
|
| Custody |
|
| Portfolio Management |
|
| Other Considerations |
|
Frequently Asked Questions
What Is a Material Change on Form ADV?
A material change is any change to the information in your Form ADV that would be important to a client’s or prospective client’s decision to hire or stay with the firm — for example, a new or changed conflict of interest, a change to fees or services, a new affiliation, or a disciplinary event. Part 2A requires a summary of material changes, and certain Part 1 items must be amended promptly when they become inaccurate.
What Conflicts of Interest Must Be Disclosed on Form ADV?
All material conflicts of interest must be disclosed, along with how the firm addresses them. Common areas include compensation (performance fees, revenue sharing, referral fees), brokerage and soft dollars, custody, employee personal trading, outside business activities, and side-by-side management — the categories summarized in the chart above.
How Often Must You Amend Form ADV?
Every SEC- and state-registered adviser must file an annual updating amendment within 90 days of its fiscal year-end. Beyond that annual filing, advisers must also amend Form ADV promptly during the year whenever certain information becomes materially inaccurate.
When in Doubt, Err on the Side of Transparency
Form ADV is the main disclosure document for your clients. Its accuracy and completeness is important, not only from a regulatory standpoint but from a fiduciary standpoint as well. Firms should be sure to put an appropriate amount of care and consideration into drafting the disclosures in Form ADV and, when in doubt of how much to disclose, err on the side of transparency. Allocating appropriate resources is crucial, and utilizing compliance consultants and/or legal counsel when drafting Form ADV amendments can be very beneficial given their extensive knowledge and experience.
For help with your Form ADV amendment and ongoing regulatory filings, Core Compliance can assist your firm every step of the way. Contact us at (619) 278-0020 to learn more.
Author: Core Compliance & Legal Services; Editor: Tina Mitchell, Managing Director, Consultation Services, Core Compliance & Legal Services (“Core Compliance”). Core Compliance works extensively with investment advisers, broker-dealers, investment companies, hedge funds, private equity firms and banks on regulatory compliance issues.
This article is for information purposes and does not contain or convey legal or tax advice. The information herein should not be relied upon in regard to any particular facts or circumstances without first consulting with a lawyer and/or tax professional.
[1] See https://www.sec.gov/litigation/admin/2017/34-80335.pdf
[2] See https://www.sec.gov/litigation/admin/2017/ia-4702.pdf
[3] See https://www.sec.gov/about/forms/formadv.pdf
[4] Does not include all conflicts applicable to investment advisers
