Mackenzie Financial Corporation and LBC Financial Services Inc.
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Revocation of prior relief -- Relief granted from the requirement in s.3.2(2) of NI 81-101 to deliver a fund facts document to investors for purchases of mutual fund securities of certain series under automatic switching programs -- Laurentian Preferred Pricing Series offering lower combined management and administration fees than the Laurentian Retail Series, as applicable, based on the size of a fund investment -- Investment fund manager initiating automatic switches between series on behalf of investors when their investments satisfy or cease to meet eligibility requirements of Laurentian Preferred Pricing Series -- Automatic switches between series of a fund triggering a distribution of securities which requires delivery of a fund facts document -- Relief granted from the requirement to deliver a fund facts document to investors for purchases of series securities made under automatic switching programs subject to compliance with certain notification and disclosure requirements in the simplified prospectus and fund facts document -- Relief granted from the requirement to prepare a fund facts document for each series of securities of a mutual fund in accordance with the form requirements in Form 81-101F3 and the requirement that the fund facts document contain only information that is specifically required or permitted to be in Form 81-101F3 so that fund facts document delivered to investors in the automatic switching program will provide disclosure relating to the automatic switching program and both series, subject to certain conditions -- National Instrument 81-101 Mutual Fund Prospectus Disclosure.
Applicable Legislative Provisions
National Instrument 81-101 Mutual Fund Prospectus Disclosure, ss. 2.1, 3.2.01(1), 6.1.
November 19, 2018
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the Jurisdiction) AND IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS AND IN THE MATTER OF MACKENZIE FINANCIAL CORPORATION (Mackenzie) AND LBC FINANCIAL SERVICES INC. (the Principal Distributor, and together with Mackenzie, the Filers)
DECISION
Background
The principal regulator in the Jurisdiction has received an application (the Application) from Mackenzie on behalf of the Funds (as defined below) and the Principal Distributor for a decision under the securities legislation of the Jurisdiction (the Legislation):
(a) revoking the decision granted by the principal regulator (the Revocation) on November 20, 2017 (the Prior Relief);
(b) exempting the Principal Distributor from the requirement in subsection 3.2.01(1) of National Instrument 81-101 Mutual Fund Prospectus Disclosure (NI 81-101) to deliver or send the most recently filed fund facts document (a Fund Facts) in the manner as required under the Legislation (the Fund Facts Delivery Requirement) in respect of the purchases of Laurentian Preferred Pricing Series (as defined below) or Laurentian Retail Series (as defined below) securities of the Funds that are made pursuant to Automatic Switches (as defined below) (the Fund Facts Delivery Relief); and
(c) exempting the Funds from the requirement in section 2.1 of NI 81-101 to prepare a Fund Facts in the form of Form 81-101F3 Contents of Fund Facts Document (Form 81-101F3), to permit the Funds to deviate from certain requirements in Form 81-101F3 in order to prepare a Consolidated Fund Facts Document (as defined below) that includes the Switching Disclosure (as defined below) (the Consolidated Fund Facts Relief, and together with the Fund Facts Delivery Relief, the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this application; and
(b) the Filers have provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, Québec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador (the Other Jurisdictions, together with the Jurisdiction, the Jurisdictions).
Interpretation
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
Representations
This decision is based on the following facts represented by the Filers:
Mackenzie
1. Mackenzie is a corporation amalgamated under the laws of Ontario with its head office in Toronto, Ontario.
2. Mackenzie is registered as an investment fund manager, portfolio manager, exempt market dealer and commodity trading manager in Ontario. Mackenzie is also registered as: (a) a portfolio manager and exempt market dealer in the Other Jurisdictions and each of the territories of Canada; and (b) an investment fund manager in Newfoundland and Labrador, and Québec.
3. Mackenzie is the manager of the existing mutual funds (the Existing Funds) offered under simplified prospectus dated November 23, 2017, as amended. Mackenzie may offer other mutual funds under the simplified prospectus in the future (those funds, together with the Existing Funds, are referred to as the Funds and, individually, as a Fund).
4. Mackenzie and the Existing Funds are not in default of the securities legislation of the Jurisdictions.
The Principal Distributor
5. Certain series of the Funds (the Laurentian Series) are, or will be, available for purchase only through the Principal Distributor, the principal distributor for the Laurentian Series securities.
6. The Principal Distributor is a member of the Mutual Fund Dealers Association of Canada and is registered in the category of mutual fund dealer in each of the Jurisdictions.
7. The Principal Distributor is not in default of securities legislation in any of the Jurisdictions.
The Funds
8. Each Fund is, or will be, an open-end mutual fund trust created under the laws of Ontario or an open-end mutual fund that is a class of shares of a mutual fund corporation incorporated under the laws of Ontario.
9. Each Fund is, or will be, a reporting issuer under the laws of all of the provinces and territories of Canada and subject to National Instrument 81-102 Investment Funds. The Laurentian Series securities are, or will be, qualified for distribution pursuant to a simplified prospectus, Fund Facts and annual information form that have been, or will be, prepared and filed in accordance with NI 81-101.
10. Each Fund currently offers up to nine Laurentian Series: Series LB, LF, LF5, LM, LP, LW, LW5, LW6 and LX. Mackenzie may offer additional series under the simplified prospectus in the future.
11. Series LW, LW5, LW6 and any future applicable preferred pricing series securities that are Laurentian Series securities (the Laurentian Preferred Pricing Series) generally have or will have lower combined management and administration fees than Series LB, LM and LX and any future applicable retail series securities that are Laurentian Series securities (the Laurentian Retail Series). The Laurentian Preferred Pricing Series are: (a) currently only available to investors who have invested at least $100,000 in one Laurentian Series of a Fund or $250,000 across a group of eligible investments; and (b) will only be available to investors who have invested at least $100,000 in eligible investments once this revised threshold has been incorporated into the simplified prospectus on or around November 23, 2018 (the Eligibility Criteria).
12. Each pair of series, namely Series LB and LW, Series LX and Series LW5 and Series LX and LW6, and any future pairs of series (each a Pair) are each made up of a Laurentian Retail Series and a Laurentian Preferred Pricing Series. Each Laurentian Preferred Pricing Series in a Pair is identical to its corresponding Laurentian Retail Series but for the Eligibility Criteria and the fact that it has lower combined management and administration fees than the Laurentian Retail Series.
13. Series LM is presently closed to new investments other than those made through pre-authorized contribution plans that were in existence on November 25, 2015. Series LM is identical to Series LW6 but for the Eligibility Criteria and the fact that Series LW6 has lower combined management and administration fees than Series LM.
Automatic Switches
14. Mackenzie currently has a program whereby investors holding Laurentian Retail Series securities (other than Series LM securities) are automatically switched into the corresponding Laurentian Preferred Pricing Series securities once they meet the applicable terms of the Eligibility Criteria (the Lower Fee Switches) without the Principal Distributor or investor having to initiate the trade. If an investor holding Laurentian Preferred Pricing Series securities ceases to meet the Eligibility Criteria, Mackenzie may switch the Laurentian Preferred Pricing Series securities back into the applicable Laurentian Retail Series securities without the Principal Distributor or investor initiating the trade (the "Higher Fee Switches", and together with the Lower Fee Switches, the "Automatic Switches").
15. The Lower Fee Switches take place when the investor purchases additional securities or when positive market movement moves the investor into Laurentian Preferred Pricing Series eligibility.
16. For Series LM investors, the Lower Fee Switches will be made to Series LW6 securities. Since Series LM is closed, if an investor holding Series LW6 securities ceases to meet the Eligibility Criteria, then Higher Fee Switches will be made to Series LX securities, instead of back into Series LM securities. There is no material difference between the terms of Series LM securities and Series LX securities.
17. The Higher Fee Switches may occur because of redemptions that decrease the amount of total investments with Mackenzie for the purposes of calculating the investor's eligibility for Laurentian Preferred Pricing Series securities. However, in no circumstances will market value declines that reduce the account value below the Eligibility Criteria lead to Higher Fee Switches.
18. Investors may access Laurentian Preferred Pricing Series securities by: (a) initially investing in Laurentian Preferred Pricing Series securities if they meet the Eligibility Criteria; or (b) initially investing in Laurentian Retail Series securities and then, upon meeting the Eligibility Criteria, having those Laurentian Retail Series securities switched into Laurentian Preferred Pricing Series securities by way of a Lower Fee Switch.
19. Investors may access Laurentian Retail Series securities by: (a) initially investing in Laurentian Retail Series securities; or (b) initially investing in Laurentian Preferred Pricing Series securities and then, upon no longer meeting the Eligibility Criteria for the Laurentian Preferred Pricing Series securities, having those Laurentian Preferred Pricing Series securities switched into Laurentian Retail Series securities by way of a Higher Fee Switch.
20. The trailing commissions for the Laurentian Preferred Pricing Series and Laurentian Retail Series securities are, or will be, identical.
21. Further to each Lower Fee Switch, an investor's account would continue to hold Laurentian Series securities in the same Fund(s) as before the Lower Fee Switch, with the only material differences to the investor being that the combined management and administration fees charged for the Laurentian Preferred Pricing Series securities would be lower than those charged for Laurentian Retail Series securities.
22. Further to each Higher Fee Switch, an investor's account would continue to hold Laurentian Series securities in the same Fund(s) as before the Higher Fee Switch, with the only material differences to the investor being that the combined management and administration fees charged for the Laurentian Retail Series securities would be higher than those charged for Laurentian Preferred Pricing Series securities.
23. There are no sales charges, switch fees or other fees payable by the investor upon a Lower Fee Switch or a Higher Fee Switch.
24. The Automatic Switches have no adverse tax consequences on investors under current Canadian tax legislation.
Consolidated Fund Facts Relief
25. Mackenzie proposes to prepare, for each of the Funds, a consolidated Fund Facts for each Pair (a Consolidated Fund Facts Document).
26. Each Consolidated Fund Facts Document will include the information required by Form 81-101F3 for both of the series in the applicable Pair, except as set out below in paragraph 25.
27. Specifically, for each Consolidated Fund Facts Document, Mackenzie proposes to deviate from the following requirements in Form 81-101F3:
(a) General Instructions (10) and (16), to permit the Consolidated Fund Facts Document to be the Fund Facts for, and disclose information relating to, both of the series in the applicable Pair, except as further described below;
(b) Item 1(c.1) of Part I, to permit the Consolidated Fund Facts Document to name both of the series in the applicable Pair in the heading;
(c) Item 1(e) of Part I, to permit the Consolidated Fund Facts Document to name both of the series in the applicable Pair in the introduction to the Fund Facts;
(d) Instruction (0.1) of Part I, to permit the Consolidated Fund Facts Document to identify the fund codes of both of the series in the applicable Pair;
(e) Instruction (1) of Item 2 of Part I, to permit the Consolidated Fund Facts Document to list the date that both of the series in the applicable Pair first became available to the public;
(f) Instruction (3) of Item 2 of Part I, to permit the Consolidated Fund Facts Document to disclose the management expense ratio (the MER) of only the applicable Laurentian Retail Series within the applicable Pair;
(g) Instruction (6) of Item 2 of Part I, to permit the Consolidated Fund Facts Document to specify the minimum investment amount and additional investment amount of only the Laurentian Retail Series within the applicable Pair;
(h) General Instruction (8), to permit the Consolidated Fund Facts Document to include a footnote under the "Quick Facts" table that:
(i) states that the Fund Facts pertains to both of the series in the applicable Pair;
(ii) cross-references the "How much does it cost?" section of the Fund Facts for further details about the Automatic Switches;
(iii) cross-references the fee decrease table under the subheading "Fund Expenses" of the Fund Facts for further details about the minimum investment amount for both series in the applicable Pair; and
(iv) cross-references the "Fund Expenses" subsection of the Fund Facts for further details about the MER for both of the series in the applicable Pair;
(i) Item 5(1) of Part I, to permit the Consolidated Fund Facts Document to:
(i) reference only the applicable Laurentian Retail Series in the introduction under the heading "How has the fund performed?"; and
(ii) include, as a part of the introduction, disclosure explaining that the performance of the Laurentian Preferred Pricing Series of the applicable Pair would be similar to the performance of the corresponding Laurentian Retail Series, but would vary as a result of the difference in fees compared to the corresponding Laurentian Retail Series, as set out in the fee decrease table under the subheading "Fund expenses";
(j) Instruction (4) of Item 5 of Part I, to permit a Consolidated Fund Facts Document to show the required performance data under the subheadings "Year-by-year returns", "Best and worst 3-month returns", and "Average return" relating only to the applicable Laurentian Retail Series;
(k) Item 1(1.1) of Part II, to permit a Consolidated Fund Facts Document to:
(i) refer to both series in the applicable Pair in the introductory statement under the heading "How much does it cost?"; and
(ii) include, as part of the introductory statement, a summary of the Automatic Switches, consisting of:
a. a statement explaining that the Laurentian Preferred Pricing Series charges lower combined management and administration fees than the corresponding Laurentian Retail Series;
b. a statement explaining the scenarios in which the Automatic Switches will be made, including Automatic Switches made due to the investor no longer meeting the Eligibility Criteria for the applicable Laurentian Preferred Pricing Series;
c. a cross-reference to the fee decrease table under the subheading "Fund expenses";
d. a cross-reference to specific sections of the simplified prospectus of the Funds for more details about the Automatic Switches; and
e. a statement disclosing that investors should speak to their representative for more details about the Automatic Switches;
(l) Item 1(1.2)(1) of Part II, to permit a Consolidated Fund Facts Document to refer to both of the series in the applicable Pair in the introduction under the subheading "Sales charges", if applicable;
(m) Instruction (1) of Item 1 of Part II, to permit a Consolidated Fund Facts Document to disclose all sales charge options for both of the series in the applicable Pair.
(n) Item 1(1.3)(2) of Part II, to permit a Consolidated Fund Facts Document, where the applicable Fund is not new, to:
(i) disclose the MER, trading expense ratio and fund expenses of both series in the particular Pair, and where certain information is not available for a particular series, to state "not available" in the corresponding part of the table; and
(ii) add a row in the table:
a. in which the first column states "For every $1,000 invested, this equals"; and
b. which discloses the respective equivalent dollar amounts of the fund expenses of each series included in the table for each $1,000 investment;
(o) Item 1(1.3)(3) of Part II, to permit a Consolidated Fund Facts Document, where the applicable Fund and both of the series in the applicable Pair are not new, to include, instead of the mandated statement above the fund expenses table:
(i) a statement explaining that the applicable Laurentian Retail Series has higher combined management and administration fees than the applicable Laurentian Preferred Pricing Series; and
(ii) a statement stating "As of [the date of the most recently filed management report of fund performance], the fund expenses were as follows:";
(p) Item 1(1.3)(3) of Part II, to permit a Consolidated Fund Facts Document, where the applicable Fund is not new but where one of the series in the applicable Pair is new, to include, instead of the mandated statement above the fund expenses table:
(i) a statement explaining that the applicable Laurentian Retail Series has higher combined management and administration fees than the applicable Laurentian Preferred Pricing Series;
(ii) a statement disclosing that the fund expenses information below is not available for one of the series because it is new, as indicated below; and
(iii) a statement stating "As of [the date of the most recently filed management report of fund performance], the fund expenses were as follows:";
(q) Item 1(1.3)(4) of Part II, to permit a Consolidated Fund Facts Document, where the applicable Fund is new, to:
(i) include a statement explaining that the applicable Laurentian Retail Series has higher combined management and administration fees than the applicable Laurentian Preferred Pricing Series;
(ii) disclose the rates of the management fee and administration fee of only the applicable Laurentian Retail Series; and
(iii) for only the applicable Laurentian Retail Series, disclose that the operating expenses and trading costs are not available because it is new;
(r) General Instruction (8), to permit a Consolidated Fund Facts Document to include, at the end of the disclosure under the sub-heading "Fund expenses":
(i) a table that discloses:
a. the name of, and qualifying investment amounts associated with each of the series in the applicable Pair; and
b. the combined management and administration fee decrease of the applicable Laurentian Preferred Pricing Series from the combined management and administration fee of the applicable Laurentian Retail Series, shown in percentage terms; and
(ii) an introduction to the table stating that the table sets out the combined management and administration fee decrease of the applicable Laurentian Preferred Pricing Series from the combined management and administration fee of the applicable Laurentian Retail Series.
(collectively, the Switching Disclosure).
28. Mackenzie submits that, given that each of the Laurentian Retail Series and Laurentian Preferred Pricing Series are a part of the Automatic Switches, and an investor in either series would make one investment decision at the outset by purchasing securities of a Laurentian Retail Series of a Fund or, if eligible, of a Laurentian Preferred Pricing Series of a Fund, a Consolidated Fund Facts Document containing the Switching Disclosure will provide investors with more comprehensive disclosure about the Automatic Switches and each of the series in the applicable Pair as compared to disclosure in separate Fund Facts for each of the series in the applicable Pair.
29. Since, if the Fund Facts Delivery Relief described below is granted, the Fund Facts for the series that is being switched into pursuant to an Automatic Switch would not be delivered in connection with the Automatic Switch, Mackenzie submits that there is little benefit to preparing separate Fund Facts for each of the series in the applicable Pair. Mackenzie submits that the Consolidated Fund Facts Document containing the Switching Disclosure, which would be delivered to investors before the initial investment in Laurentian Retail Series securities or, if eligible, Laurentian Preferred Pricing Series securities, provides investors with better disclosure than if investors received the Fund Facts pertaining only to the applicable Laurentian Retail Series or Laurentian Preferred Pricing Series.
30. In the absence of the Consolidated Fund Facts Relief, Mackenzie would be required to prepare separate Fund Facts for each of the Laurentian Retail Series and Laurentian Preferred Pricing Series.
Fund Facts Delivery Relief
31. Each Automatic Switch entails (a) a redemption of the Laurentian Retail Series security, immediately followed by a purchase of the corresponding Laurentian Preferred Pricing Series security, or (b) a redemption of the Laurentian Preferred Pricing Series security, immediately followed by a purchase of the corresponding Laurentian Retail Series security. Each purchase of securities done as part of an Automatic Switch is a "distribution" under the Legislation, which triggers the Fund Facts Delivery Requirement.
32. Pursuant to the Fund Facts Delivery Requirement, a dealer is required to deliver the most recently filed Fund Facts of a series of a fund to an investor before the dealer accepts an instruction from the investor for the purchase of securities of that series of the fund.
33. The Filers previously obtained relief from the Fund Facts Delivery Requirement in respect of purchases of Laurentian Preferred Pricing Series securities that are made pursuant to the Lower Fee Switches in the Prior Relief.
34. The Filers request that, starting on or about November 23, 2018, (the Implementation Date), the Prior Relief be extended to purchases of Laurentian Retail Series securities that are made pursuant to the Higher Fee Switches through the granting of the Revocation and the Fund Facts Delivery Relief.
35. While Mackenzie will initiate each trade done as part of an Automatic Switch, Mackenzie and the Principal Distributor do not propose to deliver a Fund Facts to investors in connection with the purchase of securities made pursuant to an Automatic Switch since, after the Implementation Date, investors will receive a Consolidated Fund Facts Document containing the Switching Disclosure before their first purchase of Laurentian Retail Series or Laurentian Preferred Pricing Series securities in accordance with the Fund Facts Delivery Requirement. The Consolidated Fund Facts Document will provide investors with disclosure about the Automatic Switches and both of the series in the applicable Pair, and investors would derive little benefit from receiving a further Consolidated Fund Facts Document in conjunction with each Automatic Switch.
36. To ensure that existing investors in both the Laurentian Retail Series and the Laurentian Preferred Pricing Series prior to the Implementation Date receive sufficient disclosure of the changes that will be implemented on the Implementation Date, Mackenzie will liaise with the Principal Distributor to devise and implement a notification plan for such investors to notify them about the Automatic Switches, as further described below in condition 3(a) below.
37. Mackenzie will also liaise with the Principal Distributor about the Automatic Switches so that the Principal Distributor will be equipped to appropriately advise new investors about the Automatic Switches.
38. The most recently filed Consolidated Fund Facts Document for each series will be available to investors on Mackenzie's website.
39. In the absence of the Fund Facts Delivery Relief, the Principal Distributor would be required to deliver the applicable Fund Facts to investors in connection with the purchase of securities made pursuant to each Automatic Switch.
Decision
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that:
1. the Revocation is granted;
2. the Consolidated Fund Facts Relief is granted provided that each Consolidated Fund Facts Document contains the Switching Disclosure; and
3. the Fund Facts Delivery Relief is granted provided that:
(a) for investors invested in the Laurentian Retail Series or the Laurentian Preferred Pricing Series prior to the Implementation Date, Mackenzie has liaised with the Principal Distributor to devise and implement a notification plan for such investors regarding the Automatic Switches to communicate the following:
(i) for investors other than Series LM investors:
1. that their investment may be switched to the Laurentian Preferred Pricing Series with lower management and administration fees upon meeting the Eligibility Criteria;
2. that other than a difference in management and administration fees, there is no other material difference between the Laurentian Retail Series and the Laurentian Preferred Pricing Series;
3. that if they cease to meet the Eligibility Criteria, their investment may be switched into the Laurentian Retail Series, which has higher management and administration fees;
(ii) for Series LM investors:
1. that their investment may be switched to Series LW6 with lower management and administration fees upon meeting the Eligibility Criteria;
2. that other than a difference in management and administration fees, there is no other material difference between Series LM and Series LW6;
3. that if they cease to meet the Eligibility Criteria, because Series LM is closed, their investment may be switched into Series LX, which has the same management and administration fees as Series LM, but has higher management and administration fees than Series LW6;
4. there is no other material difference between Series LM and Series LX;
(iii) that they will not receive the Consolidated Fund Facts Document when they purchase securities in connection with an Automatic Switch, but that:
1. they may request the most recently filed Consolidated Fund Facts Document for the relevant series by calling a specified toll-free number or by sending a request via email to a specified address;
2. the most recently filed Consolidated Fund Facts Document will be sent or delivered to them at no cost, if requested;
3. the most recently filed Consolidated Fund Facts Document may be found either on the SEDAR website or on Mackenzie's website; and
4. they will not have the right to withdraw from an agreement of purchase and sale (a Withdrawal Right) in respect of a purchase of securities made pursuant to an Automatic Switch, but they will have the right of action for damages or rescission in the event any Fund Facts or document incorporated by reference into a simplified prospectus for the relevant series contains a misrepresentation, whether or not they request the Fund Facts;
(b) Mackenzie incorporates disclosure in the simplified prospectus for each Fund participating in the Automatic Switches that describes the Automatic Switches, including setting out:
(i) the Eligibility Criteria;
(ii) the fees applicable to investments in the applicable Laurentian Retail Series and Laurentian Preferred Pricing Series;
(iii) for investors other than Series LM investors who are switched to Series LW6, that if they cease to meet the Eligibility Criteria, their investment will be switched back to the corresponding Laurentian Retail Series, which has higher management and administration fees; and
(iv) for Series LM investors who are switched to Series LW6, that if they cease to meet the Eligibility Criteria, because Series LM is closed, their investment may be switched into Series LX securities, which has the same management and administration fees as Series LM, but has higher management and administration fees than Series LW6.
(c) for Laurentian Retail Series and Laurentian Preferred Pricing Series investors, Mackenzie sends these investors an annual reminder notice advising that they will not receive a Fund Facts when they purchase Laurentian Retail Series or Laurentian Preferred Pricing Series securities pursuant to an Automatic Switch, but that:
(i) they may request the most recently filed Consolidated Fund Facts Document for the relevant series by calling a specified toll-free number or by sending a request via email to a specified address;
(ii) the most recently filed Consolidated Fund Facts Document will be sent or delivered to them at no cost, if requested;
(iii) the most recently filed Consolidated Fund Facts Document may be found either on the SEDAR website or on Mackenzie's website; and
(iv) they will not have a Withdrawal Right in respect of a purchase of series securities made pursuant to an Automatic Switch, but they will have a right of action for damages or rescission in the event any Fund Facts or document incorporated by reference into a simplified prospectus for the relevant series contains a misrepresentation, whether or not they request the Fund Facts.