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- Updating Form ADV and Form U4 When it comes to disclosure on Form ADV, RIAs should assume information would be material to investors. When in doubt, RIAs should disclose information rather than arguing later with securities regulators that it was not material.
The Securities and Exchange Commission’s Asset Management Unit charged David Dube and his firm, Peak Wealth Opportunities, on Friday with failing to provide SEC examiners with records of a mutual fund advisory business that invested in NASCAR-related stocks.
The SEC examiners sought records from Dube and his Florida-based wealth management firm while examining a mutual fund they advised called the Stock Car Stock Index Fund. Despite repeated requests, the SEC says that Dube and Peak Wealth failed to furnish certain records to the SEC.
“After promising multiple times to provide the requested records, Dube failed to live up to his regulatory obligations and turn over the records,” said Bruce Karpati, chief of the Enforcement Division’s Asset Management Unit, in a statement. “When financial professionals fail to cooperate with SEC exams, they force the agency to expend greater resources to pursue investigations.”
According to an SEC order initiating administrative proceedings, Peak Wealth was the advisor to the Stock Car Stock Index fund from 2008 to June 2010. SEC examination staff requested records from Peak Wealth and Dube in 2010 while examining Peak Wealth’s advisory business and the operations of the fund.
The SEC further alleges that Dube and Peak Wealth:
- Failed to make and keep certain required financial records.
- Failed to withdraw Peak Wealth’s registration with the SEC and make other required filings.
- Failed to provide the fund’s board of directors with information reasonably necessary to assess Peak Wealth’s advisory fees.
Simultaneously with the SEC’s examination in 2010, the fund’s board requested information from Peak Wealth and Dube as part of the fund’s required annual evaluation of its advisory agreements. “Despite requesting additional time to respond to the board, Peak Wealth and Dube failed to provide any of the requested documents. The board subsequently terminated Peak Wealth’s advisory agreement and liquidated the fund by returning the money to investors,” the SEC states.
“A fully informed board is crucial to the advisory fee setting process, yet Dube failed to provide the board with the most basic of information,” said Chad Alan Earnst, an assistant regional director in the Enforcement Division’s Asset Management Unit.
Under the relevant rules, the SEC says that it could seek to permanently bar Dube from association with an SEC-registered investment advisor or broker-dealer.