Today, Corp Fin posted a few new FAQs regarding the transition to the new amendments to Reg S-K Items 101, 103 and 105, which are designed to modernize the disclosure requirements related to the descriptions of business, legal proceedings and risk factors (see this PubCo post). Those new rule amendments will become effective November 9.
Corp Fin has amended Disclosure Guidance Topic No. 7, Confidential Treatment Applications Submitted Pursuant to Rules 406 and 24b-2, to modify the alternatives available for companies with confidential treatment orders that are about to expire. The guidance—which, as always, is just that and not intended to be binding—addresses procedures for CTRs that were submitted, not under the new streamlined approach adopted last year (see this PubCo post), but rather under the old traditional approach that still lives but is now rarely used. Under the prior guidance, when a CT order obtained under the traditional process was about to expire, companies could use a short-form application for extensions, but they were not permitted to transition to the streamlined new process by simply filing the redacted exhibit on EDGAR following the streamlined procedures. However, under the new amended guidance, transition to the new streamlined approach is now one of the permitted alternatives.
It’s well known that COVID-19 provided an unanticipated shock to the economy as a consequence of what economist Paul Krugman termed the “economic equivalent of a medically induced coma.” As a result, many companies were compelled to disclose historic performance that was, to put it mildly, at odds with their expectations of a few months prior, with little insight about the shape of future performance. In this paper, The Spread of COVID-19 Disclosure, from the Corporate Governance Research Initiative at the Stanford Graduate School of Business and the Rock Center for Corporate Governance at Stanford University, the authors looked at how companies responded to this situation, examining the levels of transparency that companies provided in the “widely uncertain” setting of COVID-19.
For those interested in a summary and update of the SEC’s and its staff’s targeted relief to address COVID-19, you may want to look at this updated statement issued today by SEC Chair Jay Clayton and the Directors of Corp Fin, Investment Management and Trading and Markets. The statement summarizes the current temporary relief and indicates the staff’s views on whether the relief should be extended or otherwise adjusted: “It is clear that the need for certain relief remains, such as relief to ensure continued remote operations and to provide flexibility in light of continued market volatility. Other forms of current relief, however, are unlikely to be extended.”
Yesterday, the staff of Corp Fin issued Disclosure Guidance: Topic No. 9A, which supplements CF Topic No. 9 with additional views of the staff regarding disclosures related to operations, liquidity and capital resources that companies should consider as a consequence of business and market disruptions resulting from COVID-19. You might recall that, in March, the staff issued CF Topic No. 9, which offered the staff’s views regarding disclosure considerations, trading on material inside information and reporting financial results in the context of COVID-19 and related uncertainties. (See this PubCo post.) As with the original guidance, the new supplemental guidance includes a valuable series of questions designed to help companies assess, and to stimulate effective disclosure regarding, the impact of COVID-19, in advance of the close of the June quarter. As always these days, the guidance makes clear that it represents only the views of the staff, is not binding and has no legal force or effect.
Is EBITDAC a thing? Yes, according to the FT. This article describes the use of a new non-GAAP metric: “earnings before interest, tax, depreciation, amortisation—and coronavirus.” Applying the new metric, a few companies have actually added back profits they contend they would have earned but for the mandatory lockdowns resulting from COVID-19. Hmmm. While, according to the article, the add-back has “bemused some observers,” it does raise the question: how should companies employ non-GAAP financial measures (NGFMs) in the context of COVID-19? How should audit committees conduct oversight of the use of NGFMs that have been adjusted for coronavirus-related effects? Auditors weigh in.
Corp Fin has posted four new COVID-19-related FAQs, most of which concern the interaction of Form S-3 and the SEC’s COVID-19 Order. As you know, in the COVID-19 Order, the SEC provided public companies that are unable to file timely “due to circumstances related to COVID-19” with conditional 45-day extensions to file or furnish specified SEC various reports, schedules and forms that would otherwise have been due between March 1 and July 1, 2020, provided they comply with certain requirements (see this PubCo post). If a company does not file a required report on the original due date in reliance on the COVID-19 Order, what does that mean for its use of Form S-3?
The FT is reporting that the SEC is abandoning a key component of its proposal to add new disclosure and engagement requirements for proxy advisory firms, such as ISS and Glass Lewis. (See this PubCo post.) According to the report, the SEC has “scrapped the portion of the proposal that would have forced proxy advisers—led by Institutional Shareholder Services and Glass Lewis—to submit their voting recommendations to companies for checking before distributing them to investors in advance of shareholder meetings.” The proposal had received substantial pushback, including from the Council of Institutional Investors and even the SEC’s own Investor Advisory Committee. However, the FT appears to point the finger, or attribute the victory, depending on your point of view, primarily to hedge fund activists “who court proxy advisers’ support when fighting for board seats.”
Apparently, there are still a number of filings submitted on paper, and the filers are experiencing logistical difficulties submitting them. Once again, in light of health and safety concerns related to COVID-19, the Corp Fin staff is providing relief for specified paper forms submitted for the period from and including April 23, 2020 to June 30, 2020.
The Corp Fin staff is once again addressing logistical difficulties that have cropped up in light of COVID-19—this time it’s the submission of Forms 144 in paper. In this statement, the staff is providing temporary relief with regard to paper Forms 144 submitted during the period from April 10 through June 30, 2020. In the statement, the staff advises that it will 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) attaches a complete Form 144 as a PDF attachment to an email sent to PaperForms144@SEC.gov.