United States: SEC Extends COVID-19 Regulatory Relief For Public Companies, Funds And Investment Advisers And Issues Additional Guidance

Extension of COVID-19 Regulatory Relief

On March 25, 2020, the Securities and Exchange Commission (SEC) extended regulatory relief (link) for certain Exchange Act reports (including Form 10-Ks and Form 10-Qs) with an original filing deadline on or before July 1, 2020 (COVID-19 Order), superseding and extending their original March 4, 2020 order (link), which originally provided regulatory relief for certain March and April filing deadlines. The original filing deadline will be conditionally extended by 45 days for public companies that have been particularly impacted by the outbreak of the novel coronavirus (COVID-19). This temporary relief is subject to several conditions, including the filing of a Form 8-K explaining that the company is seeking relief under the COVID-19 Order and its particular reasons for doing so.

The following table summarizes the potential extended Form 10-Q filing deadlines for companies whose fiscal quarter ended on March 31, 2020, which would apply if relief under the aforementioned COVID-19 Order is warranted:

Companies, their audit committees and boards, should consider the necessity for reflecting disclosures regarding COVID-19 in their periodic reports, including within their business descriptions, risk factors, management discussion and analysis and legal proceedings. Additionally, companies should consider updates to forward-looking statements language, earnings guidance and other company press releases to maintain compliance with Regulation FD and stock exchange regulations.

New COVID-19 CD&Is – Questions 135.12 and 135.13

On March 31, 2020, the SEC issued two Compliance and Disclosure Interpretations (CD&Is) related to the COVID-19 Order. The first CD&I (link) clarifies that a company wishing to rely on the COVID-19 Order to extend a report's due date by 45 days should file the required Form 8-K or 6-K instead of a Form 12b-25. If a company files a Form 12b-25, but not the required Form 8-K or 6-K, the registrant will not be able to rely on the COVID-19 Order for the related report. To be eligible for relief, the required Form 8-K or 6-K with related information must be filed by the later of March 16, 2020, and the original due date of the required report.

The second CD&I (link) clarifies that companies that have properly relied on the COVID-19 Order may subsequently file a Form 12b-25 to further extend the filing deadline of a report. The SEC noted that if a company properly relies on the COVID-19 Order, a report will have a due date 45 days after the original filing deadline for such report. A report will not be considered late if it is filed within the 45 day relief period.

Footnote

1. Companies that receive an extension on filing Exchange Act annual reports or quarterly reports pursuant to the SEC order will be considered to have a due date 45 days after the filing deadline for the report. As such, those companies will be permitted to rely on Rule 12b-25 if they are unable to file the required reports on or before the extended due date. See also CD&I 135.12 and CD&I 135.13.

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