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SEC Adopts Rule Amendments to Permit Electronic Signatures to Authenticate SEC Filings

On November 17, 2020, the SEC adopted amendments to Rule 302(b) of Regulation S-T to permit the use of electronic signatures in authentication documents required for SEC filings on EDGAR. In addition, the SEC adopted amendments to certain rules and forms under the Securities Act of 1933, the Securities Exchange Act of 1934 and the Investment Company Act of 1940 to permit the use of electronic signatures in authentication documents for certain other filings when these filings contain typed, rather than manual, signatures, under generally the same conditions available under Rule 302(b). The amendments to Rule 302(b) and related amendments to other rules and forms took effect upon their publication in the Federal Register on December 4, 2020.

Rule 302(b) of Regulation S-T previously required that each signatory to an electronic filing made with the SEC under the federal securities laws, before or at the time the electronic filing is made, manually sign a signature page or other document to authenticate, acknowledge or otherwise adopt his or her signature appearing in typed form within the electronic filing. Further, electronic filers were required to retain the paper originals of these authentication documents for five years and furnish copies to the SEC or its staff upon request.

In March 2020, the staff of the SEC’s Division of Corporation Finance, Division of Investment Management and Division of Trading and Markets issued a statement regarding compliance with the authentication requirements under Rule 302(b) in light of the public health and safety concerns related to COVID-19. The staff stated that it would not recommend the SEC take enforcement action with respect to Rule 302(b) if the signatory retained the manually signed signature page or other authentication document and provided such document, as promptly as reasonably practicable, to the electronic filer in the ordinary course (e.g., if a signatory was working remotely, he or she could retain the paper original until the signatory could return to his or her place of work and deliver the document to the electronic filer), and complied with certain other conditions. In April 2020, the SEC received a rulemaking petition requesting that it generally permit the use of electronic signatures in authentication documents under Rule 302(b). The petition noted that obtaining and retaining manual signatures in compliance with the staff’s March 2020 statement remained a significant logistical burden due to COVID-19 and highlighted the widespread use of electronic signatures and improvements in electronic signature software technology. In June 2020, nearly 100 public companies jointly submitted a letter in support of the rulemaking petition.

Recognizing the widespread use of electronic signatures and technological developments in the authentication and security of electronic signatures, as well as the continuing need to support remote workforces, the SEC adopted amendments to Rule 302(b) to permit a signatory to an electronic filing made with the SEC to sign an authentication document through an electronic signature that meets certain requirements set forth in the EDGAR Filer Manual. Specifically, the electronic signature signing process must, at minimum:

  • require the signatory to present a physical, logical or digital credential that authenticates the signatory’s individual identity;

  • reasonably provide for non-repudiation of the signature;

  • provide that the signature be attached, affixed or otherwise logically associated with the signature page or document being signed; and

  • include a timestamp to record the date and time of the signature.

In addition, the amendments to Rule 302(b) provide that, before a signatory first uses an electronic signature to sign an authentication document, the signatory must manually sign a document to attest that he or she agrees that the use of the electronic signature in any authentication document serves as the legal equivalent of his or her manual signature for purposes of authenticating the signature to any filing for which it is provided. The filer must retain the initial electronic signature authentication document for as long as the signatory uses an electronic signature to sign authentication documents and for a minimum of seven years after the date of the most recent electronically signed authentication document, and must furnish this document to the SEC or its staff upon request. The amendments also provide that manually signed documents under Rule 302(b), including an initial electronic signature authentication document, may be retained and stored by electronic means.

The SEC’s adopting release is available here.

© 2022 Vedder PriceNational Law Review, Volume XI, Number 32
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About this Author

John Marten Investment Attorney Vedder Price Law FIrm
Shareholder

John S. Marten, a Shareholder in the Chicago office of Vedder Price, has substantial experience representing clients in the investment management industry.

As a member of the firm’s Investment Services group, Mr. Marten counsels clients on a wide variety of matters involving the application of the federal securities laws to investment companies, investment advisers and broker-dealers. He has significant experience counseling investment company clients with respect to new products and was recently involved in the creation of two mutual funds...

(312) 609 7753
Nathaniel Segal Investment Attorney Vedder Price Law Firm
Counsel

Nathaniel Segal is counsel at Vedder Price and a member of the Investment Services group. He focuses his practice on investment companies and investment advisers in connection with the organization and operation of investment products and services, including traditional mutual funds, closed-end investment companies (including interval funds and listed closed-end funds), variable insurance products and registered hedge funds, as well as mutual funds utilizing complex hedging and absolute return strategies. Mr. Segal has experience in conducting transactional due diligence...

(312) 609 7747
Jacob Tiedt,Vedder Price law firm investment services attorney
Shareholder

Jacob C. Tiedt is a Shareholder at Vedder Price and a member of the Investment Services group.

Mr. Tiedt’s practice includes the representation of registered mutual funds, closed-end funds and exchange-traded funds; private funds; investment advisers; and other financial institutions on a broad range of regulatory, governance and compliance matters. Mr. Tiedt regularly counsels clients on matters relating to SEC registration, disclosure and compliance; shareholder solicitation; NYSE, Nasdaq and FINRA regulation; corporate governance; and board administration. Mr....

312-609-7697
Jake Wiesen Investment Attorney Vedder Price
Associate

Jake W. Wiesen is an Associate in the Chicago office of Vedder Price and a member of the firm’s Investment Services practice group.

While in law school, Mr. Wiesen served as Associate Editor of the University of Illinois Law Review, a student attorney for the Civil Litigation Clinic and a teaching assistant for Introduction to Advocacy. He was also the recipient of the CALI Excellence for the Future Award in Administrative Law and Employee Benefits.

Prior to joining Vedder Price, Mr. Wiesen worked as a legal intern for the Chicago Transit Authority and served as a...

312 609 7838
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