On March 25, 2020, the Division of Corporation Finance of the Securities and Exchange Commission (SEC) released CF Disclosure Guidance: Topic No. 9, which provides the Division’s current views on disclosure and other securities laws obligations of public companies related to the coronavirus (COVID-19). To address potential compliance issues, the SEC also issued an order superseding its original order of March 4, 2020, providing public companies with a 45-day extension to file certain disclosure reports that would otherwise have been due between March 1 and July 1, 2020, subject to certain conditions.
SEC Chairman Jay Clayton emphasized that the actions provide temporary, targeted relief for public companies affected by COVID-19 and he encouraged public companies to provide current and forward-looking information to their investors. Clayton also reminded public companies that they can avail themselves of the safe harbor in Section 21E of the Exchange Act for forward-looking statements.
Disclosure and other securities laws obligations related to COVID-19
Assessing COVID-19’s impact on a company’s operations and the related risks will be a facts and circumstances inquiry for each company. To assist registrants with that analysis, CF Disclosure Guidance: Topic No. 9 provides an illustrative, but non-exhaustive, list of questions for management teams to consider when drafting disclosure related to COVID-19’s impact on a registrant’s present and future operations:
- How has COVID-19 impacted your financial condition and results of operations? In light of changing trends and the overall economic outlook, how do you expect COVID-19 to impact your future operating results and near- and-long-term financial condition? Do you expect that COVID-19 will impact future operations differently than how it affected the current period?
- How has COVID-19 impacted your capital and financial resources, including your overall liquidity position and outlook? Has your cost of or access to capital and funding sources, such as revolving credit facilities or other sources changed, or is it reasonably likely to change? Have your sources or uses of cash otherwise been materially impacted? Is there a material uncertainty about your ongoing ability to meet the covenants of your credit agreements? If a material liquidity deficiency has been identified, what course of action has the company taken or proposed to take to remedy the deficiency? Consider the requirement to disclose known trends and uncertainties as it relates to your ability to service your debt or other financial obligations, access the debt markets, including commercial paper or other short-term financing arrangements, maturity mismatches between borrowing sources and the assets funded by those sources, changes in terms requested by counterparties, changes in the valuation of collateral, and counterparty or customer risk. Do you expect to disclose or incur any material COVID-19-related contingencies?