Last September, Houston-based Investment Advisory Firm, Robare Group Ltd. (“Robare”), was charged with violating Sections 206(1), 206(2) and 207 of the Investment Advisers Act of 1940 by the Securities and Exchange Commission (“SEC”). The SEC’s enforcement division discovered an undisclosed revenue sharing agreement between Robare and its custodian Fidelity Institutional (“Fidelity”). According to the SEC, Robare made mutual fund recommendations to its clients without properly disclosing the agreement. The arrangement resulted in payments of $440,000 over eight (8) years.
The SEC alleged that Robare did not disclose this potential conflict of interest on its Form ADV Part 2. According to Judge Grimes, “Fidelity would remit payments to the Robare Group when the Robare Group’s clients invested on Fidelity’s platform in certain “eligible” non-Fidelity non-transaction fee funds.” Under the agreement Robare would receive between two (2) and twelve (12) basis points based on eligible assets under management.
Last week one of the SEC’s own administrative law judges, James Grimes, dismissed the charges against Robare and its co-owners Mr. Mark L. Robare, and Jack L. Jones, Jr in a 44-page decision. Judge Grimes stated that while the firm didn’t disclose the relationship in its Form ADV “The form itself says that a firm ‘may disclose this additional information to client in [the firm’s] brochure or by some other means.” The “other means” in this case were a brochure, fee agreement, new account agreement and disclosure documents.
Judge Grimes also argued that Robare’s use of out outside compliance firms “to ensure the Robare Group was compliant with its disclosure obligations belies any argument that Mr. Robare or Mr. Jones acted with intent to deceive, manipulate, or defraud anyone.” This may be reason for advisers to seek counsel when evaluating existing disclosures or creating new ones.
Jacko Law Group, PC (“JLG”) creates, analyzes and revises client disclosure documents on behalf of broker-dealers, investment advisory firms, investment companies, hedge fund managers, private equity firms, and other financial, securities and corporate law clients throughout the United States and internationally.
JLG can assist you with evaluating disclosure documents and assess how you may wish to enhance them.
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