[co-author: Trent O'Malley*]

The Securities and Exchange Commission (the “Commission”) on Friday, March 13, 2020, granted temporary relief under the Investment Advisers Act of 1940 relative to certain filing and delivery deadlines and other requirements that the adviser cannot meet because of the current COVID-19 pandemic. See INVESTMENT ADVISERS ACT OF 1940 Release No. 5463 (March 13, 2020) (the “Order”).

Temporary Relief from certain ADV Requirements

Specifically, the Order found here grants temporary relief to a Registered Investment Adviser (“RIA”) and/or an Exempt Reporting Adviser (“ERA”) (together, “IA”) unable to:

(a) File Form ADV amendments (as required under Rule 204-1) (applicable to all IAs);

(b) Deliver Form ADV Part 2 amended brochures, brochure supplements, or summary of material changes to clients (under Rule 204-3(b)(2) and (b)(4)) (applicable only to RIAs); and/or

(c) File Form PF (as required under Section 204(b) of the Advisers Act) (applicable to certain RIAs);

when such filings are due any time between, and including, March 13, 2020 and April 30, 2020 (the “Applicable Time Period”).

For an IA to rely appropriately on the temporary relief each of the following conditions must be present:

1. The IA’s inability to meet the deadline or delivery requirement must be due to circumstances related to current or potential effects of COVID-19;

2. The IA must notify the Commission via email at IARDLive@sec.gov for Form ADV and disclose on its website (or promptly notify clients, if it does not have a website) and the Commission via email at FormPF@sec.gov for Form PF:

a. That the IA is relying on this Order;

b. A brief description of the reason(s) why the IA could not file or deliver its Form ADV or Form PF on a timely basis; and

c. The estimated date by which the IA expects to file or deliver the Form; and

3. As soon as practicable, but not later than 45 days after the original filing and/or delivery due date, the IA files the Form ADV, delivers the brochure (or summary of material changes) and brochure supplement, or files the Form PF, as applicable.

Pursuant to the release accompanying the Order, found here, this temporary relief is designed to enable advisers to meet their obligations and to continue their operations, while recognizing that there may be temporary disruptions outside of their control caused by COVID-19. Further, the Commission’s Order specifically acknowledged the Applicable Time Period could later be extended beyond the April 30, 2020 end date should circumstances warrant.

(*Trent O’Malley is a legal intern at Winstead who contributed to the authorship of this alert)