In light of its current understanding of the circumstances related to the coronavirus (“COVID-19”), on March 25, 2020, the SEC issued an order (“Amended Order”)1 to amend its order dated March 13, 2020 (“Original Order”)2 granting temporary exemptions from certain Form ADV and Form PF filing and delivery requirements, including the requirement for an SEC-registered investment adviser (“adviser”) or exempt reporting adviser to file an annual amendment to its Form ADV.3
As with the Original Order, the Amended Order does not grant advisers an automatic extension of the applicable filing or delivery deadline. An adviser relying on the Amended Order must promptly notify the SEC staff via email at IARDLive@sec.gov and disclose on its public website (or if it does not have a public website, promptly notify its clients and/or private fund investors) that it is relying on the Amended Order. An adviser relying on the Amended Order must meet the applicable filing or delivery requirement as soon as practicable, but not later than 45 days after the original due date.
The Amended Order, however, removes the Original Order’s requirement that an adviser relying on the order must (i) include, in its email to the SEC staff and on its website, as applicable, why the adviser is unable to meet the applicable filing deadline or delivery requirement and (ii) provide an estimated date of filing or delivery completion.
The Amended Order also extends the relief specified in the Original Order to filing or delivery obligations, as applicable, for which the original due date is on or after March 13, 2020 but on or before June 30, 2020.
S&K Observations
As a reminder, an adviser or exempt reporting adviser whose fiscal year ended on December 31, 2019, must file an annual updating amendment to its Form ADV by March 30, 2020, or meet the applicable conditions for relying on the Amended Order.4 Please contact your primary attorney in Seward & Kissel’s investment management group or any of the attorneys listed below for assistance with your Form ADV annual amendment or the conditions for relying on the Amended Order.5
Seward & Kissel has established a COVID-19 Resource Center on our web site to access all relevant alerts that we distribute.
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1 See Order Under Section 206A of the Investment Advisers Act of 1940 Granting Exemptions from Specified Provisions of the Investment Advisers Act and Certain Rules Thereunder, Advisers Act Release No. IA-5469 (March 25, 2020) available at https://www.sec.gov/rules/other/2020/ia-5469.pdf.
2 See Order Under Section 206A of the Investment Advisers Act of 1940 Granting Exemptions from Specified Provisions of the Investment Advisers Act and Certain Rules Thereunder, Advisers Act Release No. 5463 (March 13, 2020) available at https://www.sec.gov/rules/other/2020/ia-5463.pdf.
3 See Seward & Kissel’s client alert “SEC Provides Temporary Conditional Relief from Certain Form ADV and Form PF Filing Requirements in Response to the Coronavirus” (March 15, 2020) available at https://www.sewkis.com/publications/sec-provides-temporary-conditional-relief-from-certain-form-adv-and-form-pf-filing-requirements-in-response-to-the-coronavirus/. The SEC also amended exemptions from certain requirements of the Investment Company Act of 1940 for registered investment companies in light of the circumstances related to COVID-19. See Seward & Kissel’s client alert “SEC Provides Revised Relief to Assist Registered Funds Affected by the Coronavirus” available at https://www.sewkis.com/publications/sec-provides-revised-relief-to-assist-registered-funds-affected-by-the-coronavirus/.
4 See Seward & Kissel’s client alert “Tips and Considerations for Form ADV Annual Amendments” (March 2, 2020) available at https://www.sewkis.com/publications/tips-and-considerations-for-form-adv-annual-amendments-2/.
5 Seward & Kissel has created a “Guide to Completing Form ADV Part 1A” and a “Model Form ADV Parts 2A & 2B” to assist advisers with completing Form ADV. These documents as well as other compliance tools, resources, webinars and publications are available on our SKRC Online Compliance Subscription Service, which is free to our active investment adviser clients. Please click here to request free client access.
