United States: Corp Fin Staff Extends Earlier Temporary Relief Addressing Logistical Issues

In March and April, the Corp Fin staff issued three statements providing temporary relief to address various logistical issues and other complications resulting from the COVID-19-related shutdowns. The relief related to authentication document retention requirements under Rule 302(b) of Reg S-T, submission of Forms 144 in paper and submission of a variety of other paper forms outside of Form 144. In two cases, the staff statements had provided relief only through June 30. Unfortunately, that turned out to be much too optimistic. Today, the staff extended the time frames for all three statements for an indeterminate period. The new statements can be found here, here and here. In each case, the temporary relief applies "until the staff provides public notice that it no longer will be in effect; that notice will be published at least two weeks before the announced termination date."

In March, the staff of various SEC divisions, including Corp Fin, issued a Statement Regarding Rule 302(b) of Regulation S-T in Light of COVID-19 Concerns. The statement offered temporary relief in connection with "the authentication document retention requirements under Rule 302(b) [of Reg S-T] in light of health, transportation, and other logistical issues raised by the spread of coronavirus disease 2019 (COVID-19)." Rule 302(b) requires each person who signs a document that is filed electronically with the SEC to manually sign a signature page (or other document), before or at the time the electronic filing is made. To facilitate authentication of the signature, the rule requires the company or other electronic filer to retain the signed documents for five years and to furnish copies to the SEC upon request. In light of difficulties that filers and signatories experienced in satisfying those requirements as a result of COVID-19, the relief allowed the signatory to retain the signed document and provide it to the filer as promptly as practicable so long as specified steps were taken. (See this PubCo post for a description of the requirements.)

In an April statement, the staff provided temporary relief with regard to paper Forms 144, advising that it would not recommend enforcement action if, in lieu of mailing or delivering paper Forms 144 under Rules 101(b)(4) or 101(c)(6) of Reg S-T, the filer (or submitter) attached a complete Form 144 as a PDF attachment to an email sent to PaperForms144@SEC.gov. If the filer were unable to provide a manual signature on the Form 144 submitted by email, the staff offered relief similar to the remedy provided for problems with manual signatures above. (For more information, see this PubCo post.)

And again in April, the staff offered temporary relief in connection with various other paper forms, including Forms 6-K and 11-K, if the filers submitted these documents by email instead of mailing or delivering the paper document to the SEC, so long as the filer attached a complete document, including any required exhibits, as PDF attachments to an email sent to CorporationFinancePaperForms@SEC.gov. If the filer were unable to provide a manual signature on the documents submitted by email, the staff offered relief similar to the remedy provided for problems with manual signatures above. (For more information, see this PubCo post.)

Of course, as usual, all the staff guidance is just that and not legally binding.

For guidance on the legal, regulatory and commercial implications of the COVID-19 pandemic, see our Cooley coronavirus resource hub.