Troutman Sanders' "What’s an SEC Filer to Do? Effect of the Partial Government Shutdown on SEC Filings" provides the key takeaways for those involved in the financial and Section 16 reporting, proxy statement filing, and registration statement processes as to how to proceed in view of the SEC's limited operations during the shutdown. Importantly, in most cases, companies should plan to proceed in the normal course and in full compliance with disclosure obligations and filing deadlines for current and periodic reports, preliminary and definitive proxies, and Section 16 filings. On the latter, the firm notes that the SEC is continuing to process Form ID requests for new Section 16 officers within one to two business days, and that filer support staff is still available to answer questions.
Wachtell Lipton's "Addressing Rule 14a-8 Shareholder Proposals During and After the Shutdown" provides a timely refresher on Rule 14a-8 shareholder proposal requirements and common practices; explains alternative approaches and factors proposal recipients should consider in their decision-making as to whether to include or exclude a proposal in view of the SEC Staff's inability to respond to no-action requests; and imparts guidance on responding to or warding off proposals in the ordinary course.
In the WSJ's "Shutdown Ties Companies' Hands on Unwanted Shareholder Proposals" (noted in last week's shutdown report), Gibson Dunn's Ron Mueller commented: "'If the [SEC] staff redoubles their efforts they’ll be able to respond to many of the proposals in a way that’s responsive to the shareholders' once the shutdown ends." The article continues: "If the shutdown continues even after a company needs to send out its proxy statement to shareholders, the company could include proposals in the statements but not make them subject to a vote, saying it is awaiting a determination from the SEC, Mr. Mueller said."
In the meantime, this WSJ article: "Democratic Picks for Agencies Are Latest Shutdown Casualty" suggests that the seemingly stalled Sen. Chuck Schumer-recommended candidacy of former SEC staffer Allison Lee to fill Kara Stein's recently vacated seat on the Commission (see our recent Stein report here), as well as delays on other posts are - at least in part - among the byproducts of the shutdown: "The furloughing of federal workers is straining the White House’s ability to do background checks and other paperwork necessary to nominate Democrats for three financial regulatory positions, people familiar with the matter said."
The SEC further ordered a stay last week - effective immediately - of all pending administrative proceedings due to the lapse in funding. The stay is effective until further order from the Commission.