The United States Securities and Exchange Commission (the "SEC") has recently issued a final rule regarding amendments to Part 2 of Form ADV. A copy of the rule can be found at the SEC"s website at http://sec.gov/rules/final/2010/ia-3060.pdf. The changes become effective October 12, 2010.
In the past, Form ADV Part II ("Part II") required advisers to respond to a series of multiplechoice and fill-in-the-blank questions organized in a "check-the-box" format, supplemented in some cases with brief narrative responses on Schedule F. "Part II" will now be called "Part 2". Part 2 is being changed so that, rather than a check-the-box format, each adviser will be required to provide clients with a narrative that describes the adviser"s business, identifies conflicts of interest, discloses disciplinary history, provides information on certain supervised persons, and other information. These changes will affect all Massachusettsregistered investment advisers. Massachusetts-registered investment advisers should consult the General Instructions to Form ADV for details on how to respond to the questions.
Each Massachusetts-registered investment adviser whose fiscal year ends on or after December 31, 2010 will be required to file their next annual updating amendment using the "new" Form ADV (including the new Part 2). Annual updating amendments will continue to be required within ninety (90) days of the end of the registrant"s fiscal year. Until an adviser is required to file its annual updating amendment, it may make amendments to the "old" Part II to disclose any material changes to its business. All amendments will continue to be made electronically using the IARD system.
Registrants are required to provide Part II (or another written document containing the equivalent information) to new clients or prospective clients. A Registrant must also, without charge, deliver or offer in writing to deliver to each of its advisory clients a copy of this disclosure document on an annual basis. See 950 C.M.R. 12.205(8). As of the time the Registrant is required to have updated to the "new" Part 2, the Registrant will also be required to deliver (or offer to deliver) the new version of Form ADV Part 2 as part of its disclosure obligations.
Lastly, as part of this rule, the SEC has altered the definition of "custody" for purposes of Form ADV. Please be advised that this definition is incorporated by reference into the Regulations' discretion and custody requirements found at 950 CMR 12.205(5).
For details concerning these changes and applicable Regulations, contact the Massachusetts Securities Division at 617-727-3548.