In light of the disruptions resulting from the coronavirus (“COVID-19”), on March 13, 2020, the SEC issued an order (“Order”)1 granting temporary conditional relief from certain Form ADV and Form PF filing and delivery requirements, as applicable, under the Investment Advisers Act of 1940 (“Advisers Act”).2
Filing and Delivery Exemptions
Subject to meeting the conditions described below, the SEC granted exemptions from the following filing or delivery requirements, as applicable, for which the original due date is on or after March 13, 2020 but on or before April 30, 2020:3
• An SEC-registered investment adviser (“adviser”) is exempt from the requirements to (a) file an amendment to Form ADV, including an annual updating amendment, under Rule 204-1 under the Advisers Act; and (b) deliver Form ADV Part 2 (or a summary of material changes) to existing clients under Rule 204-3(b)(2) and (b)(4) of the Advisers Act;
• An exempt reporting adviser (“ERA”) is exempt from the requirements to file reports on Form ADV, including an annual updating amendment, under Rule 204-4 under the Advisers Act; and
• An adviser is exempt from the requirements to file Form PF under Section 204(b) of and Rule 204(b)-1 under the Advisers Act.
Conditions for Relief
An adviser or ERA must satisfy the following conditions in order to rely on the relief granted by the Order:
a. The adviser or ERA is unable to meet a filing deadline or delivery requirement due to circumstances related to current or potential effects of COVID-19;
b. The adviser or ERA relying on the Order promptly provides the SEC via email at IARDLive@sec.gov and discloses on its public website (or if it does not have a public website, promptly notifies its clients and/or private fund investors of) the following information:
1. that it is relying on the Order;
2. a brief description of the reasons why it could not file or deliver, as applicable, its Form on a timely basis; and
3. the estimated date by which it expects to file or deliver the Form; and
c. The adviser or ERA files the Form ADV or Form PF, as applicable, and delivers Form ADV Part 2 (or a summary of material changes), as soon as practicable, but not later than 45 days after the original due date for filing or delivery, as applicable.
S&K Observations
In light of current and potential disruptions resulting from COVID-19, advisers and ERAs should assess their ability to meet the filing and delivery requirements, as applicable, of Form ADV and Form PF.4 Please contact your primary attorney in Seward & Kissel’s investment management group or any of the attorneys listed below for assistance with these requirements or the conditions for relying on the relief granted by the Order.
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.5 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.
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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. 5463 (March 13, 2020) available at https://www.sec.gov/rules/other/2020/ia-5463.pdf.
2 The SEC also provided an exemption from certain requirements of the Investment Company Act of 1940 for registered investment companies and a statement regarding prospectus delivery obligations of registered funds. See Order Under Section 6(c) and Section 38(a) of the Investment Company Act of 1940 Granting Exemptions from Specified Provisions of the Investment Company Act and Certain Rules Thereunder; Commission Statement Regarding Prospectus Delivery, Investment Company Act of 1940 Release No. 33817 (March 13, 2020) available at https://www.sec.gov/rules/other/2020/ic-33817.pdf.
3 The SEC stated in the Order that “[t]he time period for any or all of the relief may, if necessary, be extended with any additional conditions that are deemed appropriate and the Commission may issue other relief as necessary or appropriate.”
4 See also Seward & Kissel’s client alert “Coronavirus Considerations for Investment Managers” (March 13, 2020) available at https://www.sewkis.com/publications/coronavirus-considerations-for-investment-managers/.
5 See also 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/.
