Today, the SEC issued this Order extending its coronavirus-prompted conditional filing relief to provide an additional 45 days to file Exchange Act reports due between March 1 and July 1 subject to filing a Form 8-K (or Form 6-K) by the original report filing deadline and other enumerated conditions. The previous Order issued on March 4 (reported on here) granted such relief for reports due between March 1 and April 30.
The SEC Division of Corporation Finance concurrently issued instructive coronavirus-focused disclosure guidance - CF Disclosure Guidance: Topic No. 9. The guidance reminds companies that our principles-based disclosure scheme applies to COVID-19 and other evolving business risks, which may appropriately be addressed in the MD&A, business section, risk factors, legal proceedings, DC&P, ICFR, and the financial statements. Importantly, the guidance includes an illustrative list of considerations in the form of an extensive list of questions that should inform and help facilitate companies' facts and circumstances-specific COVID-19 disclosure now and going forward, as the risks and impacts continue to evolve. Companies are also reminded that they may take advantage of the PSLRA safe harbors for forward-looking information.
Further to the statement made Monday by Co-Directors of Enforcement Stephanie Avakian and Steven Peikin (reported on in yesterday's Society Alert), the guidance also reiterates the heightened risks of unlawful insider trading and selective disclosure in light of the potential abundance of material insider information about COVID-19 actual or projected risks or impacts on company operations and performance, and reminds companies to be mindful of their legal obligations in this regard.
The guidance also addresses unique COVID-19 earnings release-related challenges where a typical non-GAAP reconciliation may not be available at the time of an earnings release because the corresponding GAAP measure may be impacted by COVID-19-related adjustments that can't at that time be determined. In that case, Corp Fin will allow companies to reconcile non-GAAP financial measures to preliminary GAAP results that either include provisional amounts based on a reasonable estimate or a range of reasonably estimable GAAP results provided the financial presentation is limited to non-GAAP financial measures the company is using to report its financial results to the board and otherwise adheres to the guideposts described in the guidance. Companies are also reminded to adhere to the SEC's recent MD&A metrics guidance, which we previously reported on here.
See the SEC's release, which also addresses concurrently issued orders providing extended investment fund and adviser relief with respect to in-person board meeting requirements and filing and delivery deadlines. We are posting memos and commentary on the public company conditional filing relief and disclosure guidance on our Financial Reporting page under Coronavirus.