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Division of Investment Management Staff Statement on Fund Board Meetings and Unforeseen or Emergency Circumstances Related to Coronavirus Disease 2019 (COVID-19)

March 4, 2020

The Division of Investment Management is actively monitoring the current and potential effects of COVID-19 on investment advisers and funds.  As a result of its outreach, the Division understands that fund boards may have upcoming meetings that were planned anticipating in-person attendance and that boards may be concerned about potential travel restrictions or the ability of directors to travel.  Division staff issued a letter to the Independent Directors Council in February 2019 that provides that the staff would not recommend enforcement action if fund boards do not adhere to certain in-person voting requirements in the event of unforeseen or emergency circumstances affecting some or all of the directors.[1]  As a result of the current and potential effects of COVID-19, the staff is hereby extending the no-action position expressed in the Independent Directors Council letter with respect to unforeseen or emergency circumstances to cover all approvals and renewals (including material changes) of contracts, plans or arrangements under section 15(c) or rules 12b-1 or 15a-4(b)(2), as well as the selection of a fund’s independent public accountant pursuant to Section 32(a) where such accountant is not the same accountant as selected in the immediately preceding fiscal year.[2] 

This position applies to board meetings held between the date of this update and June 15, 2020.  The Division staff may extend the time period for this no-action position as circumstances warrant, with any additional conditions deemed appropriate.

The Division encourages investment advisers and funds to contact the Division staff with any concerns they have related to the staff letter or to current or potential effects of COVID-19 on their operations, including any need for relief or guidance, at 202-551-6825 or email at imocc@sec.gov.  In addition, as investment advisers and funds plan and prepare for any potential impacts, the Division encourages them to evaluate their business continuity plans and valuation procedures, among other relevant policies, procedures and systems.

This IM Staff Statement represents the views of the staff of the Division of Investment Management.  It is not a rule, regulation, or statement of the Securities and Exchange Commission. The Commission has neither approved nor disapproved its content.  This Staff Statement, like all staff guidance, has no legal force or effect: it does not alter or amend applicable law, and it creates no new or additional obligations for any person.

 

[1] See letter from the staff of the Division of Investment Management to Independent Directors Council (Feb. 28, 2019), available at https://www.sec.gov/divisions/investment/noaction/2019/independent-directors-council-022819.

[2] Consistent with the letter to the Independent Directors Council, this position is conditioned on  board ratification of these actions at the next in-person board meeting.

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