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SEC Offers Filing Extensions Amid Coronavirus Pandemic

To date, COVID-19 (“Coronavirus”) has infected more than 105,000 people and killed approximately 3,500 — with numbers increasing worldwide. Accompanying this tragedy is substantial economic loss, with major selloffs across the S&P 500, Dow Jones Industrial Average, and Nasdaq Composite.1 Companies, such as Apple, that conduct significant amounts of business in China — the pandemic’s epicenter — have disclosed that Coronavirus will disrupt their supply chains and suppress sales,2 and entire sectors of the economy have predicted dire consequences. For example, the International Air Transport Association forecasts that travel bans and customer reluctance to fly could lead to revenue losses of $63 billion to $113 billion.3

On February 19, 2020,4 the U.S. Securities and Exchange Commission (the “SEC”) released a statement encouraging public companies to disclose risks to their businesses associated with Coronavirus. Since then, at least 606 public companies have disclosed Coronavirus risk factors.5 But given the expanding pandemic, and difficulty auditors are experiencing operating in China, on March 4, 2020, the SEC issued an order granting publicly traded companies impacted by Coronavirus the ability to request/receive an additional 45 days to file materials that would otherwise be due between March 1, 2020, and April 30, 2020.6

The deadline extension applies to a range of materials, including information filed on Forms 6-K and 8-K.7 To qualify for the extension, an issuer must submit a report within 45 days of its original deadline explaining why the delay is necessary.8 The report must state when the company expects to file its forms and contain risk factors describing the Coronavirus’s material impact on its business.9

V&E clients concerned about the effects of Coronavirus on their ability to make timely SEC filings may wish to utilize the relief procedure outlined in the new SEC order. However, even issuers who will be able to file on time should consider what — if any — disclosures are necessary in light of the Coronavirus pandemic. The SEC has encouraged issuers to disclose material Coronavirus risks to their businesses, and, given recent market losses, it is likely that shareholder actions will follow if there are failures to adequately disclose such risks.10

Please visit our Coronavirus: Preparation & Response series for additional resources we hope will be helpful.

Visit our website to learn more about V&E’s Government Investigations & White Collar Criminal Defense practice. For more information, please contact Vinson & Elkins lawyers Jennifer Freel, Laurel S. Fensterstock, or David Hoffman.

1 See Live Updates, Stocks Plunge Again on Coronavirus Fears, N.Y. Times (Mar. 5, 2020), https://www.nytimes.com/2020/03/05/business/stock-market-covid-19.html?action=click&module=Top%20Stories&pgtype=Homepage

2 See Press Release, Apple Inc., Investor Update on Quarterly Guidance (Feb. 17, 2020), https://www.apple.com/newsroom/2020/02/investor-update-on-quarterly-guidance/?subId1=xid:fr1583434845553edc

3 See Press Release, International Air Transport Association, IATA Updates COVID-19 Financial Impacts -Relief Measures Needed (March 5, 2020), https://www.iata.org/en/pressroom/pr/2020-03-05-01/.

4 See Press Release, Securities and Exchange Commission, Statement on Continued Dialogue with Audit Firm Representatives on Audit Quality in China and Other Emerging Markets; Coronavirus — Reporting Considerations and Potential Relief (Feb. 19, 2020), https://www.sec.gov/news/public-statement/statement-audit-quality-china-2020-02-19#_ftn9.

5 See Tom Zanki, Coronavirus Abounds In Risk Disclosures As Disease Spreads, Law360 (February 28, 2020, 7:14 PM), https://www.law360.com/articles/1248475.

6 See Order Under Section 36 of the Securities Exchange Act of 1934 Granting Exemptions from Specified Provisions of the Exchange Act and Certain Rules Thereunder, Exchange Act Release No. 34-88318 (March 4, 2020), https://www.sec.gov/rules/other/2020/34-88318.pdf.

7 Id.

8 Id.

9 Id.

10 V&E clients may also wish to consider what effects, if any, Coronavirus will have on their (or their counterparty’s) capacity to perform under existing contracts — specifically, whether the Coronavirus is sufficient to trigger a force majeure clause.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.