On March 13, 2020, the Securities and Exchange Commission (SEC) issued an Order under Section 206A of the Investment Advisers Act of 1940 (Advisers Act) providing a conditional, temporary exemption from certain requirements of the Advisers Act in response to challenges created by the outbreak of coronavirus disease 2019 (COVID-19).
The Order recognizes that COVID-19 has led to disruptions to transportation and the imposition of quarantines around the world, which may limit investment advisers’ access to facilities, personnel, and third-party service providers, and that under such circumstances, investment advisers may face challenges in timely satisfying provisions of the Advisers Act and rules thereunder concerning the filing and delivery of certain reports and disclosures.
The Order applies to the following filing or delivery obligations, as applicable, for which the original due date is on or after March 13, 2020 but on or prior to April 30, 2020, and provided that the conditions below are satisfied:
- a registered investment adviser is exempt from the requirements: (a) under Rule 204-1 of the Advisers Act to file an amendment to Form ADV; and (b) under Rule 204-3(b)(2) and (b)(4) related to the delivery of Form ADV Part 2 (or a summary of material changes) to existing clients;
- an exempt reporting adviser is exempt from the requirements under Rule 204-4 under the Advisers Act to file reports on Form ADV; and
- a registered investment adviser that is required by Section 204(b) of and Rule 204(b)-1 under the Advisers Act to file Form PF is exempt from those requirements.
The conditions required to be satisfied are as follows:
- The adviser must be unable to meet a filing deadline or delivery requirement due to circumstances related to current or potential effects of COVID-19.
- If relying on the Order with respect to the filing of Form ADV or delivery of its brochure, summary of material changes, or brochure supplement, the adviser must promptly provide the SEC via e-mail 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 of) the following information: (a) that it is relying on the Order; (b) a brief description of the reasons why it could not file or deliver its Form on a timely basis; and (c) the estimated date by which it expects to file or deliver the Form.
- If relying on the Order with respect to filing Form PF required by Rule 204(b)-1, the adviser must promptly notify the SEC via e-mail at FormPF@sec.gov stating: (a) that it is relying on the Order; (b) a brief description of the reasons why it could not file its Form PF on a timely basis; and (c) the estimated date by which it expects to file the Form PF.
- The adviser must file the Form ADV or Form PF, as applicable, and deliver the brochure (or summary of material changes) and brochure supplement, as soon as practicable, but not later than 45 days after the original due date for filing or delivery, as applicable.
If you have specific questions about the Order, your Form ADV or Form PF or challenges posed by the COVID-19 outbreak more generally, please do not hesitate to contact the members of Hirschler’s Investment Management team or your regular contact at Hirschler.
 The Order provides that the SEC intends to continue to monitor the current situation and that the time period for any or all of the relief may, if necessary, be extended with any additional conditions that are deemed appropriate, and the SEC may issue other relief as necessary or appropriate.
Kristen M. Chatterton