SEC Provides Regulatory Relief for Public Reporting Companies

MEGAN PENICK
MARCH 19, 2020

The Securities and Exchange Commission recently issued an order granting certain companies relief from complying with various filing deadlines during the period of March and April 2020. Specifically, 1934 Act reporting companies whose businesses or operations have been disrupted due to the ongoing COVID-19 pandemic have been given an additional 45 days beyond their designated filing deadlines to file periodic reports, subject to certain conditions.

Michelman & Robinson explains the SEC’s order in question and answer format below.

Q. My company is publicly reporting, how do I take advantage of the 45-day extension?

A. Companies, whether US-based or foreign reporting issuers, can take advantage of the 45-day extension by filing a Current Report on Form 8-K or Form 6-K disclosing all of the following:

• That the issuer is relying on the order
• A brief description of why the issuer cannot timely file its report, schedule or form on a timely basis
• The estimated date on which the report, schedule or form will be filed with the SEC
• If appropriate and material, a risk factor explaining how COVID-19 is affecting the issuer’s business
• If the reason that a report cannot be timely filed is the inability to get an opinion from any person other than the issuer, then the issuer must also attach as an exhibit a statement from such third party specifying the reason why it is unable to provide an opinion

Q. When am I required to file the Form 8-K or Form 6-K seeking regulatory relief?

A. The Form 8-K or Form 6-K seeking the 45-day extension must be filed no later than the day that the applicable report, schedule or form is due.

Q. When am I required to file the report, schedule or form for which I obtained an extension?

A. After the Form 8-K or 6-K has been filed, the report, schedule or form that had originally been due must then be filed no later than 45 days after the original due date, unless and until the SEC issues additional guidance.

Q. What companies will the SEC’s order most likely to affect?

A. When the order was originally issued earlier this month, most of the companies that were being affected by the COVID-19 pandemic were based or had operations in Asia, as the pandemic had yet to spread with significant severity to the U.S. and Europe. As such, by the time the order was issued, most U.S.-based accelerated filers would likely have already completed or been close to completing their annual reports on Form 10-K, as they were due on March 16^th and thus probably had completed audits by that point. However, certain filers with operations in China were likely to be affected as they had already been severely delayed in completing their annual audits due to the quarantines that were then occurring (and following the Chinese New Year). However, now that the COVID-19 pandemic has spread through the U.S. and Europe, it is likely to affect many non-accelerated filers, smaller reporting companies and Regulation A+ filers, who are required to file their annual reports by the end of March and April, respectively.

We will provide further notices in the event the SEC provides additional guidance on this topic or extensions. In the meantime, the corporate and securities professionals at M&R stand ready to answer your SEC and related questions, as well as any others you may have in the wake of the coronavirus outbreak.

We are working diligently to keep our clients up to date on coronavirus-related developments. Nevertheless, these developments are changing daily and, in some cases even hourly, so it is important that you make sure you are dealing with the most current information. That being said, this alert is not offered, and should not be relied on, as legal advice. You should consult an attorney for guidance and counsel regarding any specific concern or situation.