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SEC Chairman and Division of Corporation Finance Director Issue Statement Further Addressing COVID-19 Related Disclosures

On April 8, Jay Clayton, the Chairman of the Securities and Exchange Commission (SEC), and William Hinman, the Director of the SEC’s Division of Corporation Finance, issued a public statement addressing disclosure considerations in light of the COVID-19 pandemic. The statement follows other guidance and regulatory relief that the SEC has issued in recent weeks as the pandemic has developed.

The statement is expressed in the form of observations and requests from the Chairman and Director and stresses their view that as the next earnings season approaches, public companies should provide as much information as is practicable regarding their current financial and operating status along with future operational and financial planning. Noting that the COVID-19 pandemic has caused a deep contraction in many areas of the economy and that the strategy to address the national health situation is continuing to evolve, the statement goes on to provide that public companies should consider reflecting this state of affairs and outlook by addressing in disclosures investor interest in:

  • where the company stands today, operationally and financially;
  • how the company’s COVID-19 response is progressing, including efforts to protect the health of the company’s workforce and customers; and
  • how the company’s operations and financial condition may change as a result of efforts to combat COVID-19.

The statement also recognizes that upcoming earnings statements and earnings calls will “not be routine.” According to the Chairman and the Director, historical performance information may be less relevant while investors and analysts may seek information on where companies currently stand, what adjustments they have made in light of COVID-19 and what additional adjustments they expect to make in the future. This could include a detailed discussion of a company’s current liquidity position and expected financial resource needs. Further, the statement notes that a company’s efforts to address worker health and customer safety may be of material interest to investors and, if so, should, in the view of the Chairman and the Director, be disclosed.

The statement further provides that, to the extent public companies are receiving financial assistance to mitigate the effects of the COVID-19 pandemic pursuant to the CARES Act or other governmental programs, and such financial assistance has materially affected, or is reasonably likely to have a material future effect upon, the financial condition or results of operations of a company, the company should disclose the nature, amounts and effects of such assistance.

Observing that the request for public companies to produce forward-looking disclosures may create challenges, in particular given that these statements may involve assumptions outside of the control of public companies, including the length of time for which social distancing will continue, the statement urges public companies to make all reasonable efforts to convey meaningful information and resist the use of generic or boilerplate disclosures. The statement encourages public companies making forward-looking statements about the impact of COVID-19 to avail themselves of existing safe harbors for the use of forward-looking statements, and the Chairman and the Director note their expectation that good faith attempts to provide appropriately framed forward-looking information would not be second guessed by the SEC.

It is important to note that, as expressly indicated in the statement, the statement is not a rule or regulation of the SEC, it does not amend applicable law, it has no legal force or effect, and it does not create any new obligations.

The full text of the statement is available here.

©2020 Katten Muchin Rosenman LLPNational Law Review, Volume X, Number 101

TRENDING LEGAL ANALYSIS


About this Author

Brian Hecht Corporate Lawyer Katten
Partner

Brian Hecht is a Corporate partner in Katten's New York office. He offers broad transactional experience in capital markets transactions, mergers and acquisitions and corporate governance matters. Within capital markets, Brian's practice focuses on initial public offerings, high yield offerings, spin-offs, tender offers and investment grade debt offerings. Within mergers and acquisitions, he represents private equity funds and public companies in both public and private acquisitions and divestitures.

Prior to joining Katten, Brian was a...

212.940.8516
Mark Reyes Securities Lawyer Katten Muchin law firm Chicago office
Partner

Mark J. Reyes concentrates his practice in corporate and securities matters, including representing issuers and investors in public offerings and private placements of equity and debt securities and advising clients in complex corporate transactions such as mergers, acquisitions, private investments in public equity (PIPEs), private equity investments and joint ventures. He also counsels public companies on securities law compliance, disclosures and corporate governance matters.

Shown below is a selection of Mark’s engagements.

  • Representation of hospitality company in connection with its initial public offering and listing on NYSE, as well as ongoing counseling with respect to compliance with securities laws and NYSE rules, disclosure and corporate governance matters.
  • Representation of NASDAQ-listed public company in the banking industry in connection with strategic transactions, capital raising transactions, compliance with securities laws and NYSE rules, disclosure and corporate governance matters, including strategic acquisitions, notes offering and at-the-market offering.
  • Representation of clean tech manufacturer for industrial equipment in connection with alternative public offering and listing on NASDAQ, as well as ongoing counseling with respect to compliance with securities laws and NASDAQ rules, disclosure and corporate governance matters.
  • Representation of NASDAQ-listed issuer in connection with selling stockholder block trades.
  • Representation of NYSE-listed industrial manufacturer with respect to compliance with securities laws and NYSE rules, disclosure and corporate governance matters.
  • Representation of NASDAQ-listed medical device company with respect to compliance with securities laws and NASDAQ rules, disclosure and corporate governance matters.
312-902-5612
Mark D. Wood, corporate securities lawyer Katten Muchin Chicago Law firm
Partner

Mark D. Wood is head of Katten's Securities practice and concentrates in corporate and securities law. Mark represents public companies, issuers and investment banks in initial public offerings (IPOs) and other public offerings, private investment in public equity (PIPE) transactions, debt securities and other securities matters.

Mark also represents clients in complex corporate transactions, including tender offers, mergers, acquisitions, dispositions, going-private transactions, private equity investments, joint ventures and...

312-902-5493