The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”),1 created a new registration requirement under the Securities Exchange Act of 1934 (“Exchange Act”) for persons who fall within the definition of a “municipal advisor.” Those who provide “municipal advisory services” (as described more fully below) to or on behalf of a “municipal entity” including, for example, state and local governments as well as public pension plans, will need to examine whether the new registration requirements apply to their activities.
Each person who falls within the definition of a “municipal advisor” must register with the Securities and Exchange Commission (“SEC”) by October 1, 2010. On September 1, 2010, the SEC adopted an interim final temporary rule, Rule 15Ba2-6T (“Temporary Rule”), setting forth the requirements and means for registration, as well as related Form MA-T, a registration form to be used by municipal advisors for such purpose.2
Despite the rapidly approaching deadline, many questions remain to be answered by the SEC regarding the scope of activities that would cause a person be considered to be a municipal advisor, as well as exemptions from the registration requirement. This DechertOnPoint describes the scope of the Temporary Rule, the issues raised by the new municipal advisor registration requirement and the process for registration.
Section 15B of the Exchange Act provided for creation of the Municipal Securities Rulemaking Board (“MSRB”) and requires registration of municipal dealers that participate in offerings of municipal securities. In the wake of scandals involving, among other things, the bankruptcy of various municipal entities due to unsuitable investments, the MSRB endorsed legislation to require the registration of previously unregu-lated persons that provide advice to municipal issuers relating to the offering of bonds or the investment of bond proceeds.3 As adopted, however, the provisions of the Dodd-Frank Act may have far broader application. 4 In particular, the Dodd-Frank Act includes amendments to Section 15B that require persons who fall within the new definition of a “munici-pal advisor” to register with the SEC,5 including, in some cases (as discussed below): investment advisers registered under the Investment Advisers Act of 1940 (“Advisers Act”); brokers, dealers or municipal securi-ties dealers registered under the Exchange Act; and commodity trading advisors registered under the Commodity Exchange Act.
Expansive Definition of “Municipal Entity”
The “municipal advisor” registration requirements in Form MA-T apply to persons who provide “municipal advisory services” to “municipal entities.” In addition to various state and local governments and associated political subdivisions, agencies, instrumentalities and other issuers of municipal securities, the term “munici-pal entity” includes “any plan, program, or pool . . . sponsored or established by [a] State, political subdivi-sion, or municipal corporate instrumentality or any agency authority or instrumentality thereof.”6 Accord-ing to a recent advisory issued by the MSRB, the term “municipal entity” encompasses public pension funds, 529 plans, local government investment pools and other state and local governmental entities or funds.7 Who Must Register?
Definition of “Municipal Advisor”
The definition of a “municipal advisor” essentially covers two types of entities: First, it includes any “person (who is not a municipal entity or an employee of a municipal entity) that . . . provides advice to or on behalf of a municipal entity or obligated person with respect to municipal financial products or the issuance of municipal securities, including advice with respect to the structure, timing, terms, and other similar matters concerning such financial products or issues.”8 Second, it includes any person “who undertakes a solicitation of a municipal entity” on behalf of investment advisers, broker-dealers and others.9 Specifically included within the definition of “municipal advisor” are “financial advisors, guaranteed investment contract brokers, third-party marketers, placement agents, solicitors, finders and swap advisers” that provide the services described above.10
Persons That Provide Services to a Municipal Entity
The first portion of the definition of “municipal advisor” includes persons that: (i) advise municipal entities or obligated persons on the offering of traditional munici-pal products; (ii) advise municipal entities or obligated persons on the investment of proceeds from securities offerings; (iii) offer non-securities products (including swaps and guaranteed investment products) to munici-pal entities; (iv) recommend investment options and brokerage for municipal proceeds held in escrow; or (v) prepare feasibility studies, tax and revenue projec-tions or similar products in connection with offerings or potential offerings of municipal securities.
The broad language in the definitions of “municipal advisor,” “municipal entity” and other related terms means that those engaged in a wide spectrum of activities related to municipal financial products (such as municipal derivatives, guaranteed investment contracts and “investment strategies”)11 or municipal issuances, in service to state and local governments, 529 plans, and local government investment pools, may be subject to the new registration requirement.
Solicitors, Placement Agents, and Third-Party Marketers
The second portion of the definition of municipal advisor focuses on those who “solicit” municipal entities, including public pension funds, on behalf of broker-dealers and investment advisers, among others.12 Thus, independent finders and solicitors that market municipal advisory products or services to municipal entities will be required to register as municipal advisors.13 For example, unregistered third-party finders, solicitors, placement agents or others who introduce investment advisers to public pension funds or market advisory products or services to municipal entities (and the registered advisers employing them) will need to consider the impact of the Temporary Rule’s registration requirements, as well as various Advisers Act rules, on these activities.14
Exclusions from the Definition of “Municipal Advisor”
As suggested above, the Dodd-Frank Act includes several exclusions from the definition of municipal advisor for regulated entities and professionals who, in the course of their business or profession, service municipal entities or obligated persons, including:
- a broker, dealer or municipal securities dealer serving as an “underwriter” as defined in the Securities Act of 1933 (“Securities Act”);
- a registered investment adviser and its associ-ated persons, to the extent such service consti-tutes “investment advice” for purposes of the Ad-visers Act;15
- a registered commodity trading advisor and its associated persons, to the extent such service constitutes “advice related to swaps”;
- attorneys, to the extent such service constitutes “legal advice or . . . services that are of a tradi-tional legal nature”; and
- engineers, to the extent such service constitutes “engineering advice”.
Application to Registered Investment Advisers and Others
Although the exclusion for registered investment advisers and their associated persons arguably is premised on their registration status as investment advisers, rather than the activities they engage in, the Adopting Release states that registered investment advisers are excluded from the definition of municipal advisors only as to “services [that] are investment advice for purposes of the Investment Advisers Act.” Consequently, a registered investment adviser or an affiliate “or an associated person of a registered investment adviser must register with the SEC as a municipal advisor if the adviser or associated person of an adviser provides any municipal advisory services other than investment advice within the meaning of the Investment Advisers Act.”16 Form MA-T, the Temporary Rule, and the Exchange Act do not define the term “municipal advisory services,”17 nor does the Adopting Release provide any significant guidance as to what constitutes municipal advisory services, beyond those items implicitly included in the definition of municipal advisor.18 However, Form MA-T requires each municipal advisor to identify which of the following municipal advisory services it provides:
- Advice concerning the issuance of municipal securities;
- Advice concerning the investment of the proceeds of municipal securities;
- Advice concerning guaranteed investment contracts;
- Recommendation and/or brokerage of municipal escrow investments;
- Advice concerning the use of municipal deriva-tives (e.g., swaps);
- Solicitation of business from a municipal entity or obligated person for an unaffiliated person or firm (e.g., third-party marketers, placement agents, solicitors and finders);
- Preparation of feasibility studies, tax or revenue projections, or similar products in connection with offerings or potential offerings of municipal securities; and
- Other (specify): ___________
Based on this list, it would appear that registered investment advisers, or their associated persons or affiliates, that provide advice to municipal entities concerning the issuance of municipal securities, brokerage of municipal escrow investments, certain placement services, feasibility studies, tax or revenue projections or similar products,19 could be required to register as municipal advisors since these types of services are likely to be considered to be outside the scope of “investment advice” for purposes of the Advisers Act.20
A number of questions remain regarding the registra-tion and regulation of municipal advisors, particularly those who are already registered with the SEC or other regulators in other capacities, including an investment adviser registered under Advisers Act, a commodity trading advisor registered under the Commodity Exchange Act, or a broker, dealer or municipal securi-ties dealer serving as an “underwriter” as defined in the Securities Act. Currently, it appears that a “municipal advisor” (i) that is not already registered or regulated in any of the capacities noted above or (ii) whose munici-pal advisory activities are outside the scope of its current registration or regulation by federal regulators, will need to complete its Form MA-T prior to October 1, 2010, in order to continue to provide municipal advisory services to municipal entities. Moreover, in contrast to the Advisers Act, neither the relevant provisions of the Dodd-Frank Act nor the Temporary Rule provides an exception for banks or accountants (each of which has traditionally been excepted from the definition of an “investment adviser” and, therefore, can provide certain advisory services without registering as an investment adviser under the Advisers Act). It is unclear how the Temporary Rule and any substantive regulation will apply when such persons provide municipal advisory services.
Registration Process and Timing
As noted above, any municipal advisor that fails to register by October 1, 2010, will no longer be able to provide municipal advisory services to a municipal entity or obligated person. To facilitate registration by municipal advisors in advance of the October 1 dead-line, the SEC has provided a web-based platform for such purpose.21 In order to register, a municipal advisor must first obtain a username and password (“Credentials”) through a portal on the SEC’s website.22 Once the municipal advisor has obtained its Creden-tials, it may complete, submit and later amend or withdraw its Form MA-T through a platform maintained on the SEC’s website.23 Both the credentialing portal and the registration platform are currently open and operational.
Form MA-T requires a municipal advisor to provide certain basic identifying information (including the municipal advisor’s name, address, SEC File Number and CRD24, and a contact person),25 the types of municipal advisory services provided26 and the discipli-nary history of the municipal advisor and its associated persons.27 Form MA-T is considered to be a “report” for purposes of the Exchange Act and also constitutes the municipal advisor’s consent to service of process. Therefore, the Form MA-T must be executed by an appropriate officer, general partner or similarly situated person of the municipal advisor.28
Although Form MA-T itself is fairly basic, given the rapidly approaching registration deadline, the SEC has recommended that “municipal advisors . . . allow ample time to . . . obtain access credentials and submit the Form MA-T.”29 Once the Form MA-T is filed with the SEC by a municipal advisor, the municipal advisor’s registration will be effective until the earlier of: (i) the subsequent approval of such municipal advisor’s registration pursuant to a final rule adopted by the SEC; (ii) the SEC’s rescission of such registration; or (iii) the expiration of the Temporary Rule on December 31, 2011.
The provisions of the Temporary Rule adopted by the SEC are intended to comply with timeframes estab-lished by the Dodd-Frank Act. No rules have been adopted by either the SEC or MSRB setting compliance requirements for those entities or persons that must register as municipal advisors. Nor has the shortened time period provided by the legislation allowed either the SEC or the industry to consider the implications of the registration requirements or to address potential problems with the Temporary Rule.