Overview

Does maintaining a place of business in the state trigger a notice filing (regardless of number of clients)?

Yes.
S.D. CODIFIED LAWS §47-31B-405(b)(1)(2016).

Place of business  means:

  1. An office at which the broker-dealer, investment adviser, or federal covered investment adviser regularly provides brokerage or investment advice or solicits, meets with, or otherwise communicates with customers or clients; or
  2. Any other location that is held out to the general public as a location at which the broker-dealer, investment adviser, or federal covered investment adviser provides brokerage or investment advice or solicits, meets with, or otherwise communicates with customers or clients.

S.D. CODIFIED LAWS 47-31B-102(21)(2016).

What is the maximum number of clients adviser can have in the state without triggering a notice filing?

5.
S.D. CODIFIED LAWS 47-31B-405(b)(2)(2016)

What sorts of clients are not counted for purposes of determining whether to notice file?

  1. Federal covered investment advisers, investment advisers registered under this chapter, and broker-dealers registered under this chapter;
  2. Institutional investors;
  3. Bona fide preexisting clients whose principal places of residence are not in South Dakota; or
  4. Other clients specified by rule adopted or order issued under this chapter

S.D. CODIFIED LAWS § 47-31B-405(b)(1)(2016).

”Institutional investors” any of the following, whether acting for itself or for others in a fiduciary capacity:

  1. A depository institution or international banking institution;
  2. An insurance company;
  3. A separate account of an insurance company;
  4. An investment company as defined in the Investment Company Act of 1940;
  5. A broker-dealer registered under the Securities Exchange Act of 1934;
  6. An employee pension, profit-sharing, or benefit plan if the plan has total assets in excess of ten million dollars or its investment decisions are made by a named fiduciary, as defined in the Employee Retirement Income Security Act of 1974, that is a broker-dealer registered under the Securities Exchange Act of 1934, an investment adviser registered or exempt from registration under the Investment Advisers Act of 1940, an investment adviser registered under this chapter, a depository institution, or an insurance company;
  7. A plan established and maintained by a state, a political subdivision of a state, or an agency or instrumentality of a state or a political subdivision of a state for the benefit of its employees, if the plan has total assets in excess of ten million dollars or its investment decisions are made by a duly designated public official or by a named fiduciary, as defined in the Employee Retirement Income Security Act of 1974, that is a broker-dealer registered under the Securities Exchange Act of 1934, an investment adviser registered or exempt from registration under the Investment Advisers Act of 1940, an investment adviser registered under this chapter, a depository institution, or an insurance company;
  8. A trust, if it has total assets in excess of ten million dollars, its trustee is a depository institution, and its participants are exclusively plans of the types identified in subparagraph (F) or (G), regardless of the size of their assets, except a trust that includes as participants self-directed individual retirement accounts or similar self-directed plans;
  9. An organization described in Section 501(c) (3) of the Internal Revenue Code (26 U.S.C. Section 501(c) (3)), corporation, Massachusetts trust or similar business trust, limited liability company, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of ten million dollars;
  10. A small business investment company licensed by the Small Business Administration under Section 301(c) of the Small Business Investment Act of 1958 (15 U.S.C. Section 681(c)) with total assets in excess of ten million dollars;
  11. A private business development company as defined in Section 202(a) (22) of the Investment Advisers Act of 1940 (15 U.S.C. Section 80b-2(a) (22)) with total assets in excess of ten million dollars;
  12. A federal covered investment adviser acting for its own account;
  13. A qualified institutional buyer as defined in Rule 144A(a) (1), other than Rule 144A(a) (1) (i) (H), adopted under the Securities Act of 1933 (17 C.F.R. 230.144A);
  14. A major United State institutional investor as defined in Rule 15a-6(b) (4) (i) adopted under the Securities Exchange Act of 1934 (17 C.F.R. 240.15a-6);
  15. Any other person, other than an individual, of institutional character with total assets in excess of ten million dollars not organized for the specific purpose of evading this chapter; or
  16. Any other person specified by rule adopted or order issued under this chapterinclude depository institutions or international banking institutions; insurance companies or separate accounts of insurance companies; investment companies; registered broker-dealers; employee pension, profit-sharing, or benefit plans with total assets in excess of $10,000,000 (and other small requirements); a plan established and maintained by a state or a subdivision of a state; a trust with assets in excess of $10,000,000 benefitting plans listed in this section; certain business organizations, including non-profits, LLC, and partnerships, with assets in excess of $10;000,000 small business investment companies with assets in excess of $10;000,000 private business development companies with assets in excess of $10; 000,000 federal covered investment advisor acting for its own account; qualified institutional buyers; major US institutional investors; or any other non-individual person with assets in excess of $10,000,000.

S.D.CODIFIED LAWS 47-31B-405(b)(1)(2016)


Viewing of these pages does not establish an attorney-client relationship. The information above is informational purposes only and should not be construed as legal advice. A lawyer should be consulted to confirm both applicability and any other issues that might affect or apply to your situation.