SEC issues new C&DIs to clarify certain COVID-19 filing extensions

By Lene Powell, J.D.

The SEC’s Division of Corporation Finance has issued two new Compliance & Disclosure Interpretations (C&DIs) explaining how filing extensions related to the COVID-19 crisis apply in certain instances. Question 104.18 clarifies the application of COVID-19 relief to a 120-day deadline for Part III of Form 10-K, while Question 112.02 addresses the filing of Form 40-F by users of the U.S.-Canada Multi-Jurisdictional Disclosure System (MJDS).

The new C&DIs were issued April 6, 2020.

Form 10-K. As explained in Question 104.18, Form 10-K allows Part III information to be incorporated by reference from a registrant’s definitive proxy or information statement, or, under certain circumstances, filed as an amendment to the Form 10-K, not later than 120 days after the end of the related fiscal year.

Regarding the interaction of the 120-day deadline with relief provided in the COVID-19 Order issued March 25, 2020 (Release No. 34-88465), the SEC said:

• Q: May a registrant that is unable to file the Part III information by the 120-day deadline avail itself of the relief provided by the March 25 Order for the filing of the Part III information?
• A: Yes, provided the 120-day deadline falls within the relief period specified in the Order and the registrant meets the conditions of the Order. Conditions are explained in detail. 

Form 40-F. As explained in Question 112.02, an MJDS filer must file its Form 40-F on the same day the information included therein is due to be filed with any securities commission or equivalent regulatory authority in Canada.

Regarding the interaction of the March 25 COVID-19 Order with applicable Canadian relief, the SEC said:

• Q: If an MJDS filer properly relies on any applicable Canadian COVID-19-related relief for extension of its filing deadline with the securities commission or equivalent regulatory authority, does the MJDS filer need to comply with the conditions for exemptive relief in the March 25 COVID-19 Order on the date the Form 40-F would have been due in the U.S.?
• A: No. Under these facts, compliance with the conditions of the SEC’s COVID-19 Order on the original due date of the Form 40-F is not required. MJDS filers should also consider promptly disclosing their reliance on the Canadian COVID-19-related relief.