Notice filing is a topic that often confuses people studying for the Series 63 Uniform Securities Agent State Law exam or the Series 65 Uniform Investment Adviser Law exam or the Series 66 Uniform Combined State Law exam. Some mistakenly assume that notice filing is the same as state registration. While there are some similarities, notice filing and state registration are different and the Series 63, Series 65 and Series 66 exams require that you understand the distinction.
So what is notice filing, and how does it work?
To understand the concept of a notice filing, it’s important to know a bit about the entities to which it applies: federal covered advisers and federal covered securities. First, let’s look at federal covered advisers. A federal covered adviser is an SEC-registered adviser that offers investment advice in exchange for compensation. Any adviser with assets under management of $110 million must register as a federal covered adviser.
When it comes to registration, advisers are not subject to double registration, meaning that an investment adviser registered with the SEC does not need to register with any state, and an adviser that is required to register with a state does not register with the SEC. For federal covered advisers, this makes life easier because a federal covered adviser only needs to go through the rigorous registration process one time. Instead of registering in a state, on Form ADV that it files with the SEC, a federal covered adviser lists any states in which it will either have an office or more than five retail clients in a twelve-month period. The SEC then gives notice to the administrator in any state noted on the adviser’s form ADV that the adviser intends to do business in that state. This is a notice filing: a simple heads-up to the state administrator that the advisor will be doing business in its state. Depending on the requirements of the given state, the adviser may be asked to file additional paperwork and pay a fee before offering advice to clients in the state. But, happy day, the adviser gets to skip the state registration process.
Now let’s discuss notice filing for federal covered securities. What is a federal covered security? Well, many of the securities that the average investor is likely to own are federal covered securities. For example, any security traded on an exchange like the NYSE or NASDAQ is a federal covered security. Additionally, securities issued by investment companies that are registered under the Investment Company Act of 1940, such as mutual funds and closed-end funds, are federal covered securities. A federal covered security must be registered with the SEC, but the issuing company is not required to register it with any state. Instead, the issuer must note on its registration statement any state in which it intends to sell the security. The SEC then notifies the administrator of each noted state of the issuer’s intention to sell in that state. Sound familiar? It should because this is also a notice filing: a simple shout-out by the SEC to the state administrator that the security will be sold in its state. Typically the issuer is then required to submit its SEC registration documents to the administrator and pay a filing fee, but, and this is a biggie, the issuer does not need to go through the demanding state registration process in order to sell its securities in the state.
So it’s actually pretty simple. A federal covered security or adviser is registered once with the big boys at the SEC. After that, it’s all smooth sailing. No need for further registration, just a simple notice given to states in which the security will be sold or the adviser will offer investment advice.
Now that you’ve learned the difference between notice filing and state registration, let’s do a practice question to get you ready for the Series 63, Series 65 or Series 66 exam:
Spencer Investments is a federal covered investment adviser doing business in Oregon. The Administrator in Oregon requires a notice filing. Does this mean Spencer Investments must register in Oregon as well as with the SEC?
A. No. What it means is that Spencer needs to request that the SEC send the Oregon Administrator a copy of Spencer’s Form ADV, and Spencer needs to pay a notice filing fee to the Oregon Administrator.
B. Yes. Spencer does business in Oregon, so it must register in Oregon.
C. Spencer Investments does not have to register in Oregon but does need to fill out and file all the paperwork for registration so the Oregon Administrator is on “notice” regarding Spencer’s business in Oregon.
D. Yes. The Oregon requirements for registration may be more stringent than the SEC’s, so Spencer must comply with them to do business in Oregon.
Correct Answer: A.
No. What it means is that Spencer needs to request that the SEC send the Oregon Administrator a copy of Spencer’s Form ADV, and Spencer needs to pay Oregon a notice filing fee. A notice filing for an investment advisor is not a registration but means the registration papers Spencer Investments filed with the SEC are shared with the Oregon Administrator, and the Oregon Administrator receives a filing fee.