Update: On March 25, the SEC issued a new order that supersedes the original order discussed below. The new order (1) extends the time period for the relief from April 30 to June 30 and implies that future extensions may be possible, and (2) removes the conditions that an adviser provide a brief description of why it could not meet the deadline and the estimated date by which it expects to file the relevant Form or deliver its Brochure. Our blog post regarding the original order is below.
On March 13, the Securities and Exchange Commission (the “SEC”) announced regulatory relief for investment advisers whose operations may be affected by the coronavirus (the “Order”). The relief is limited to filing and delivery obligations originally due prior to April 30. The relief permits those advisers to delay making annual updating amendments to Form ADV (including the Brochure) and Form PF, on the following conditions:
- The adviser cannot meet the deadline due to circumstances related to current or potential effects of coronavirus.
- For Form ADV, the adviser promptly notifies the SEC by email (IARDLive@sec.gov) and discloses to clients and investors either on its website or in a separate communication that it is relying on the Order, a brief description of why it could not meet the deadline, and the estimated date by which it expects to file the Form or deliver its Brochure.
- For Form PF, the adviser promptly notifies the SEC by email (IARDLive@sec.gov) that it is relying on the Order and a brief description of why it could not timely file the Form. There is no obligation to notify clients and investors.
- The adviser files the relevant Form (and, if relevant, delivers its Brochure) as soon as practicable, but not later than 45 days after the original due date. For Form ADV, the latest possible filing and delivery date would be May 14. For Form PF, the latest possible filing date would be June 13.
The relief does not address other regulatory obligations that could arise during this period. For example, advisers to pooled investment vehicles that rely on the audit exemption to the Custody Rule would still be expected to deliver audited financial statements to fund investors within 120 days of the end of their fiscal years (i.e., by April 29 for most funds). However, we expect that advisers expecting to face difficulty meeting this deadline could include this development in the brief description required to rely on the Order.
Notably, the relatively flexible criteria to take advantage of the Order should make Friday’s relief available to a wide swath of the market. Advisers do not need to demonstrate any actual impairments related to coronavirus; a simple expectation for future challenges or potential difficulties is enough to qualify for the relief.
The SEC has authority to extend the relief, and has set up a dedicated email address to answer operational and compliance questions related to the coronavirus (IM-EmergencyRelief@sec.gov).