Wrap Fee Brochures
Under the Form ADV instructions, a wrap fee program is any advisory program where a specified fee, or fee not based on account transactions, is charged for advisory services and execution. An RIA that sponsors wrap fee programs must provide to each wrap fee client (and offer annually) a Wrap Fee Brochure.73 Currently, Schedule H of Form ADV Part II sets forth the requirements applicable to a sponsor's Wrap Fee Brochure. Like the existing Schedule H, Appendix 1 to Part 2A requires that the sponsoring RIA: (i) repeat in the Wrap Fee Brochure certain items from its Part 2A Brochure (as relevant to the wrap fee clients) and (ii) provide additional information and disclosures tailored to wrap fee programs.74
Updating, filing and delivery requirements for Wrap Fee Brochures are identical to those for Part 2A. The following highlights significant disclosure requirements to be included in the Wrap Fee Brochure that differ from those required in a standard Part 2A Brochure.75
- Description of Program Services, Fees and
Compensation.76 Sponsors must provide narrative
disclosure regarding: (i) the services provided under the wrap fee
program; (ii) the fees charged; and (iii) whether the sponsor
compensates any person for client referrals. In addition, sponsors
must: (i) include fee schedules applicable to the wrap fee program
and (ii) disclose whether fees are negotiable, and the portion (or
range) of the fee that is paid over to the portfolio
managers.
Since wrap fee programs generally contemplate a fee structure where a single fee covers a range of services that might otherwise be acquired separately, sponsors must: (i) disclose that the wrap program fee may be more or less than the amount necessary to acquire such services separately and (ii) describe factors that bear upon the relative cost of the program. Similarly, any additional fees, costs or expenses (e.g., brokerage charges when a portfolio manager trades away from the wrap fee sponsor) above the program fee must be clearly disclosed.77 Where referral fees are paid to a third-party, or where the person recommending the program receives compensation as a result of a client's participation in the program, this fact must be disclosed, and conflicts (such as a person's incentive to recommend a particular program over other programs or the separate acquisition of the services covered by the wrap fee) must be noted. Finally, sponsors must disclose: (i) any applicable account requirements (e.g., investment minimums on a program or portfolio manager-by-portfolio manager basis) and (ii) how accounts are reviewed by the sponsor. - Disclosures Regarding Portfolio Managers.78 Traditionally, wrap fee programs anticipate that day-to-day management of client assets will be handled by portfolio managers, which generally are third-party RIAs (but may include the sponsor of the program or its personnel or affiliates). Consequently, a Wrap Fee Brochure must include substantial disclosure as to how the sponsor selects, reviews and recommends the retention or replacement of portfolio managers for the program and for particular clients, including any standards with respect to the calculation of manager performance.79 Sponsors must disclose if any of their related persons act as portfolio managers and, if so, must describe the potential conflicts of interest associated with such arrangements, as well as whether (and how) the selection and evaluation process differs for related managers as opposed to third-party portfolio managers. 80 Finally, sponsors must include, in the Wrap Fee Brochure, a description of how client information is provided to portfolio managers, as well as any restrictions placed on a client's ability to contact or consult with its portfolio managers.81
- Special Requirements for Sponsors whose Employees are Portfolio Managers.82 As noted above, RIAs that serve as portfolio managers must provide (or arrange for sponsors to provide) their Brochures to program participants, while wrap sponsors that serve as portfolio managers are required only to provide the Wrap Fee Brochure. To assure that program participants receive relevant disclosures with respect to the sponsor's role as a portfolio manager, sponsors whose employees may fulfill a portfolio management role in a wrap fee program must include, in the Wrap Fee Brochure, responses to certain items of Part 2A. Such disclosures include: (i) the types of advisory services offered (including information as to specialization and related risks);83 (ii) whether and how those services may be tailored to individual program participants, including the ability to impose investment restrictions; 84 (iii) the differences between how the sponsor manages wrap and non-wrap accounts and the nature of the compensation;85 (iv) if the sponsor receives performance fees from any account, a discussion of the conflicts associated with side-by-side management;86 (v) a description of the methods of analysis and investment strategies used;87 and (vi) proxy voting disclosures. 88
Brochure Supplements
Currently, Item 6 of Part II requires each RIA to disclose certain biographical information about the RIA's principal executive officers and those employees of the RIA that are involved in the determination of investment advice to be provided to clients.89
Part 2, itself, does not require that such information be included in the RIA's Brochure or Wrap Fee Brochure.90 Instead, an RIA must prepare, and provide to certain clients, Supplements detailing relevant information about those supervised persons91 of the RIA that: (i) formulate investment advice for the client and have direct client contact; or (ii) have discretionary authority over the client's assets.92 A Supplement must disclose certain specified information about the person(s) covered therein (each, a "Covered Person")93 and must include: (i) a cover page identifying the RIA and each Covered Person; (ii) each Covered Person's postsecondary education and five year business experience (if any);94 (iii) relevant disciplinary histories for each Covered Person;95 (iv) any outside business activities of a financial nature or which constitute a substantial source of income for, or require substantial time of, the Covered Person,96 and any related conflicts;97 (v) whether a non-client provides an economic benefit to the Covered Person in connection with the Covered Person's advisory services and, if so, a description of the related arrangements and conflicts;98 (vi) how the RIA supervises each Covered Person, together with the name, title and telephone number of the relevant supervisor;99 and (vii) if professional designations are disclosed in the Supplement, the minimum qualifications required for any such designation.100
Implications for Private Fund Managers
As noted above and discussed in prior DechertOn- Points,101 the Dodd-Frank amendments to the Advisers Act will result in requiring registration with the SEC or state regulators, by a significant number of advisers that currently rely on the Private Adviser Exemption in managing private funds. New advisers that register after October 11, 2010 may, and new advisers that register after January 1, 2011 must, prepare and file Brochures meeting the requirements of the Part 2 Amendments as part of their initial registration through the IARD.102 Advisers that advise private funds, particularly advisers whose business is limited to private funds, should consider the following in preparing and using Brochures and in complying with related delivery requirements.
Delivery Obligations
As noted above, Rule 204-3 requires an RIA to deliver a Brochure to: (i) each current "client" following the effectiveness of the Part 2 Amendments (as discussed below) or (ii) subsequent "clients" at or prior to the inception of the investment advisory relationship.103 In addition, the Part 2 Amendments require an RIA to annually deliver to "clients" that were recipients of a Brochure either: (i) an updated Brochure or (ii) a Material Changes Summary, accompanied by (a) an offer to provide an updated Brochure without charge and (b) information as to a website address, email address and/or telephone number by which a "client" may obtain the current Brochure.
In response to commenters' requests for clarification with respect to an RIA's delivery obligations in the context of a privately offered fund (in light of the SEC's position in the 2000 Proposal that delivery to fund investors was necessary and the 2008 Part 2 Proposal's silence on the point), the SEC took a carefully measured approach, noting "that [R]ule 204-3 requires only that brochures be delivered to 'clients'" and pointing readers to the 2006 decision in SEC v. Goldstein, 451 F.3d 873 (D.C. Cir. 2006) ("Goldstein"), in which the D.C. Circuit Court vacated a rule that would have treated private fund investors, rather than the fund itself, as "clients" for certain purposes under the Advisers Act ("Vacated Rule").104
While delivery to private fund investors is, thus, not mandated by the Part 2 Amendments, RIAs should consider: (i) the extent to which Rule 206(4)-8 under the Advisers Act may obligate the RIA to provide investors in such vehicles with disclosures of the type included in the Brochure and (ii) whether Brochure delivery and annual Material Changes Summary disclosure would be an efficient means to discharge those disclosure obligations (including the obligation to disclose all material conflicts reflected in the Brochure) to such investors.105 As a result, RIAs must carefully consider how to: (i) effectively deliver (and establish evidence delivery of) a Brochure and an annual Material Changes Summary to a private fund as required by Rule 204-3 and (ii) evidence such delivery as required by Rule 204-2. In addition, such RIAs should consider whether delivery of such documents to private fund investors, while not required, may be appropriate and in the RIA's best interest.
Effect of Disclosures Related To Private Funds, and Use of Brochure, on Private Offering Exceptions
Many private funds rely on Regulation D, which is generally predicated on the fund not engaging in a general solicitation, to avoid registration under the Securities Act of 1933 ("1933 Act").106 The Part 2 Amendments are likely to require substantial additional disclosure about the RIA's services to such private funds, including strategies, risks and fees, and related conflicts, all of which will be publicly available to any interested person through the IAPD. Moreover, it is possible that such information might be considered together with other publicly accessible data about an RIA or its private funds, such that the aggregate information available could provide potential investors with information that: (i) such persons might believe is sufficient to make a decision to invest in a private fund, even absent a prior relationship with the RIA or a person acting on the RIA's behalf, and (ii) might (in some circumstances) rise to the level of a public solicitation if such information were distributed, promoted or endorsed by the RIA.107
As a result, some commenters expressed concern that inclusion of information about private funds in a Brochure could compromise a private fund's 1933 Act exception. In response to these concerns, the SEC noted that RIAs that advise privately placed pooled investment vehicles "can provide information required by Part 2 without jeopardizing reliance on [relevant] exemptions" from registration requirements under the 1933 Act, notwithstanding the now public nature of Brochures. However, the SEC further observed that "the inclusion of private fund information [in a Brochure] beyond that required in Part 2 . . . such as subscription instructions, performance information, and financial statements, may jeopardize such reliance by constituting a public offering or conditioning the market for the securities issued by those funds."108
Thus, while the Part 2 Amendments (especially when taken together with disclosures required by Section 7.B of Part 1 of Schedule D),109 can be expected to result in increased public access to information about RIAs to private funds and the private funds themselves, this should not, by itself, raise general solicitation concerns under the 1933 Act. Nevertheless, RIAs should not view public accessibility of Brochures as an invitation to publicly discuss private offerings or to use the Brochure as a means to increase the RIA's or its private funds' public profile so as to encourage or promote investment in a private fund by persons that may not be qualified to invest in the fund. Although the Adopting Release provides comfort that appropriate disclosures in a Brochure will not "jeopardize" a private fund's 1933 Act exemption, the SEC's measured response also suggests that the SEC would not hesitate to take action where an RIA includes disclosure related to private funds in a Brochure, or uses a Brochure, in a manner that the SEC deems inconsistent with relevant 1933 Act exemptions.
Therefore, RIAs that identify and include information about their private funds in a Brochure, should establish policies and procedures to assure that the private funds are offered and sold in a manner that is consistent with the relevant 1933 Act exemption.110 Such procedures may include: (i) instructing personnel who monitor the phones or email accounts (provided on the Brochure's cover page) not to forward, to the RIA's investor relations or subscriptions personnel, calls or emails from persons who do not have a prior relationship with the RIA and (ii) refraining from posting Brochures that relate solely to the RIA's private fund business on publicly accessible portions of the RIA's website.
Compliance Dates
As discussed above, the Part 2 Amendments provide for a phase-in period, whereby: (i) an adviser applying for registration after January 1, 2011 must file its Brochure(s) meeting the requirements of the Part 2 Amendments as part of its application for registration on Form ADV; and (ii) an existing RIA whose fiscal year ends on or after December 31, 2010 must include, in its next annual updating amendments to its Form ADV, Brochure(s) that meet the requirements of the amended Form ADV. Within 60 days of filing such amendment, such an RIA must deliver to its existing clients a Brochure and Supplement that meet the requirements of amended Form ADV and each RIA must, after the relevant filing, begin to deliver to new and prospective clients, Brochures and Supplements meeting the new requirements.
Footnotes
73 An RIA that provides investment advice as a "portfolio manager" under a wrap fee program is required to provide its Brochure to each client to whom the RIA provides advice. However, where the wrap sponsor also provides investment advice, the sponsor is required only to deliver its Wrap Fee Brochure since, as discussed below, the Wrap Fee Brochure contains additional disclosure requirements where a sponsor or its personnel act as a portfolio manager through the sponsor's program(s). Sponsors must prepare and deliver Supplements for relevant personnel servicing wrap fee clients, and nonsponsor portfolio managers must provide such clients with Supplements relating to their personnel. A wrap fee client (some times referred to as a "program participant"), thus, would generally receive: (i) a Wrap Fee Brochure from the sponsor; (ii) a Brochure for each nonsponsor portfolio manager for the program participant and (iii) Supplements with respect to all persons who provide discretionary advice to, or formulate advice and have contact with, the program participant. An RIA acting as a non-sponsor portfolio manager may delegate to the wrap fee program's sponsor, the portfolio manager's Brochure delivery and recordkeeping obligations with respect to program participants. However, such a delegation does not relieve an RIA of its legal delivery obligations, and thus an RIA making such a delegation "should take steps to assure . . . that the sponsor is performing the[se] tasks." Adopting Release, supra note 1, at 49246.
74 An RIA whose business is limited to sponsoring wrap fee programs would not be required to prepare the standard Part 2A Brochure. See Adopting Release, supra note 1, at n. 183.
75 Item 9 of Form ADV Part 2A, Appendix 1 (Additional Information) requires sponsors to disclose: (i) disciplinary information (as required by Item 9 of Form ADV Part 2A); (ii) a description of the sponsor's financial industry activities and those of its affiliates (as required by Item 10 of Form ADV Part 2A); and (iii) as relevant to wrap fee clients: (a) information about any conflicts of interest related to participation or interest in client transactions, personal trading activities and the sponsor's code of ethics (as required by Item 11 of Form ADV Part 2A); (b) how the sponsor reviews accounts (as required by Item 13 of Form ADV Part 2A); (c) client referral payments made and other compensation received in connection with advisory services (as required by Item 13 of Form ADV Part 2A); and (d) financial information (as required by Item 18 of Form ADV Part 2A).
76 Items 4 (Services Fees and Compensation) and 5 (Account Requirements and Types of Clients) of Form ADV Part 2A, Appendix 1.
77 Although disclosure of brokerage practices is not specifically mandated in the Wrap Fee Brochure, the nature of wrap fee programs is such that these programs will generally include brokerage services that should be described.
78 Items 6 (Portfolio Manager Selection and Evaluation), 7 (Client Information Provided to Portfolio Managers) and 8 (Client Contact with Portfolio Managers) of Form ADV Part 2A, Appendix 1.
79 Sponsors will need to: (i) describe those standards, (ii) indicate whether the sponsor or a third-party reviews performance information provided by portfolio managers, for accuracy and compliance with applicable standards and, if such reviews are not conducted, (iii) the fact and, if applicable, that "performance information may not be calculated on a uniform and consistent basis." Item 6.A of Part 2A, Appendix 1.
80 Where a sponsor's employees (as opposed to its affiliates) serve as portfolio managers, additional disclosure requirements will apply.
81 Such disclosure should include a description of the information provided and how such information is updated.
82 Item 6.C of Form ADV Part 2A, Appendix 1.
83 Item 4.B of Form ADV Part 2A.
84 Item 4.C of Form ADV Part 2A. In order for a wrap fee program to qualify for the Rule 3a-4 safe harbor from registration as an investment company under the 1940 Act, program participants must be able to impose reasonable restrictions on the management of their accounts.
85 Item 4.D of Form ADV Part 2A.
86 Item 6 of Form ADV Part 2A.
87 Item 8.A of Form ADV Part 2A.
88 Item 17 of Form ADV Part 2A.
89 Consequently, biographical information about an RIA's principal executive officers will no longer be disclosed to program participants, unless such officers are otherwise required to be the subject of a Supplement. Disciplinary information regarding principal executive officers will be included in the Brochure pursuant to Item 9 of Form ADV Part 2A.
90 An RIA may include all of the necessary information about each relevant person in the Brochure and, in such case, a separate Supplement would not be required. The Adopting Release notes that this "approach may be attractive to smaller firms with few persons for whom they would be required to prepare [S]upplements." Adopting Release, supra note 1, at 49248. An RIA choosing this method should be aware that, if the Supplement information is included in the Brochure itself, that information will be available to the public through the IAPD.
91 Supervised persons may include the RIA's officers, directors or employees, as well as certain independent contractors and, for an RIA having "participating affiliate" arrangements with an unregistered foreign affiliate, any "affiliate associated persons" providing advisory services to the RIA's clients. Third-party solicitors are not required to be the subject of a Supplement.
92 Where accounts are managed by a team, members of the team who have no direct client contact need not be included in a Supplement.
93 In some cases, an RIA may wish to prepare a series of Supplements covering different types of accounts, each of which include the personnel relevant to the particular account type. This method of compliance would aid in assuring that relevant biographical information about all team members would be provided and ease the paperwork burden, without subjecting the information to public availability.
94 Where applicable, an RIA must disclose the fact that a Covered Person lacks a post-secondary education or business experience.
95 An RIA delivering a Supplement electronically may satisfy this disclosure obligation by including in that Supplement: (i) a statement that the Covered Person has a disciplinary history, the details of which can be found on FINRA's BrokerCheck system or the IAPD and (ii) a hyperlink to the relevant system with a brief explanation of how the client can access the disciplinary history.
96 An RIA may presume that business activities that represent less than 10% of the Covered Person's time and income are not "substantial" and need not be disclosed. Item 4.B of Form ADV Part 2B.
97 Specific disclosure of any commissions, trails, bonuses or other compensation relating to the sale of securities or investment process would be required along with an explanation that such compensation "gives the [Covered Person] an incentive to recommend investment products based on the compensation received rather than on the client's needs."
98 Such compensation might include, among other things, sales awards and prizes as well as bonuses based in part on sales or asset gathering activities. Salary and ordinary bonuses would not need to be disclosed.
99 The SEC rejected commenters' objections to this requirement, noting that "it is important for clients to be able to contact an appropriate person at an advisory firm . . . [in order to] allow clients to determine appropriate redress for their complaints without having to go through the particular Covered Person that is the focus of the complaint." Adopting Release, supra note 1, at 49250. However, neither the 2008 Part 2 Proposal nor the Adopting Release addressed how this disclosure is made when the RIA is a sole proprietorship.
100 An RIA may, but is not required to, list any professional designations earned by the Covered Person. An RIA listing professional designations should take care that it does so in a manner that is clear and not misleading. 101 See July 2010 DechertOnPoint "The Impact of the Dodd- Frank Wall Street Reform and Consumer Protection Act on the Registration Obligations of Private Fund Advisers" available at http://www.dechert.com/library/FS-15-07-10-The_Impacts_of_the_Dodd-Frank_Wall_Street.pdf and July 2010 DechertOnPoint "The Impacts of the Dodd- Frank Wall Street Reform and Consumer Protection Act on Registered Investment Companies and Advisers" available at http://www.dechert.com/library/FS--14-%2007-10-The_Impacts_of_the_Dodd-Frank_Wall_Street.pdf.
102 For further details about the transition to the new Part 2 and the effective and compliance dates of related requirements, see "Compliance Dates" below.
103 In 2000, the SEC had taken the position that "an adviser acting as the general partner for a limited partnership must provide a brochure to each limited partner" since delivery to the general partner (generally the RIA or an affiliate) "results, for all practical purposes, in the delivery of no [B]rochure, and is inconsistent with the remedial purposes of the rule."2000 Proposal, supra note 3, at n. 117 and accompanying text.
104 Adopting Release, supra note 1, at n. 192 (noting, in a footnote to a sentence explaining the extension of the class of Excepted Clients to certain BDCs, that commenters sought a similar exception from delivery requirements for "hedge funds" or "clarif[ication] that advisers to hedge funds are not required to deliver copies of [B]rochures to their investors").
105 Private placement memoranda (each, a "PPM") for private funds are typically provided to prospective investors prior to making an investment in a private fund. In addition, current investors in private funds may be provided with updated PPMs or additional information may be included in annual reports to investors, as needed. RIAs may be able to discharge Rule 206(4)-8 disclosure obligations to investors through appropriate PPM disclosure and such disclosure may also assist RIAs in preparing their Brochures. Whether a cross reference to information included in a PPM as to, for example, particular investment strategies and related risks would also be sufficient to discharge Brochure requirements pursuant to Items 4 (Advisory Services and Specialization) and 8 (Methods of Analysis, Investment Strategies and Risk of Loss) of Form ADV Part 2A, as such Items relate to private funds advised by the RIA, has not been addressed by the SEC.
106 Funds that are domiciled outside of the United States may rely on Regulation S in offering interests to non-U.S. Persons. If a private fund is making, or proposes to make, a public offering, it would no longer be able to rely on Section 3(c)(1) or Section 3(c)(7) of the 1940 Act and, as a result, would be required to register with the SEC as an investment company.
107 It can be anticipated that private, third-party data aggregators will use information gleaned from the filed Brochures, together with other publicly available information such as Form 13F filings, which are currently being data-mined, to provide subscribers or the general public with increased information about private fund offerings. In addition, Brochure filings by private fund advisers will undoubtedly be of interest to the press and to competitors.
108 Adopting Release, supra note 1, at 49253. While RIAs to private funds are not prohibited from including additional information about private funds in a Brochure, particularly where such information would aid clients in understanding required Brochure items (e.g., side-by-side management disclosure required by Item 6 of Form ADV, Part 2A), RIAs should refrain from including information relating to private funds in Brochures if such information significantly exceeds the bounds of what is required by the form.
109 Section 7.B of Part 1 of Schedule D requires an RIA to list each private fund it manages that is a limited partnership or limited liability company, if the RIA or a related person acts as general partner or managing member and allows an RIA to list other private funds that the RIA "advise[s]." For each private fund listed, the RIA is instructed to identify: (i) the name of the general partner or manager; (ii) whether the fund is a "private fund" (as defined in the Vacated Rule); (iii) whether clients are solicited to invest; (iv) the percentage of clients that have invested; (v) the investment minimum; and (vii) total fund assets. A substantial portion of the information requested by Section 7.B arises from form amendments adopted concurrently with the Vacated Rule. See Final Rule: Registration Under the Advisers Act of Certain Hedge Fund Advisers, Rel. No. IA-2333 (Dec. 3, 2004); 69 FR 72054 (Dec. 10, 2004). Although these form amendments were reversed by the Goldstein case, the SEC has not changed the paper or electronic versions of the forms to eliminate the request for information about "other private funds that [the applicant] advise[s]." Instead, an answer to a FAQ notes that "it will take some time to reprogram the IARD to reflect th[e] reversal" and until the IARD is reprogrammed, RIAs have the choice to follow the FAQ (i.e., to answer the questions as they appeared prior to the Vacated Rule such that: (i) no information would need to be provided about private funds that were not limited partnerships or limited liability companies of which the RIA or an affiliate is general partner or manager, respectively, and (ii) and no response would be required as to (a) the identity of the general partner or manager (though, for systems reasons, an RIA choosing not to respond must enter "not required" in the appropriate field); or (b) whether the fund is a "private fund") or to "complete the questions as they appear." SEC Staff Guidance for Interim Completion of Part 1A of Form ADV, Item 7.B. and Schedule D, Section 7.B., at http://www.sec.gov/divisions/investment/iard.shtml#staffguidance.
110 See, e.g., Lamp Technologies, Inc. (pub. avail., May 29, 1998); Lamp Technologies, Inc. (pub. avail., May 29, 1997); see also Use of Electronic Media, Rel. No. 33-7856 (Apr. 28, 2000); Statement of the Commission Regarding Use of Internet Web Sites to Offer Securities, Solicit Securities Transactions or Advertise Investment Services Offshore, Rel. No. 33-7516 (Mar. 23, 1998); SECURITIES AND EXCHANGE COMMISSION, IMPLICATIONS OF THE GROWTH OF HEDGE FUNDS, 16-17 (September 2003).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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