December 22, 2008

SEC Closed on Friday, December 26th: Federal Holiday?

A few weeks ago, the White House issued an executive order making this Friday, the 26th, a day off for the US government. It’s not uncommon for the day before – or after – Christmas to be declared a federal holiday by a Presidential executive order. [Added note – The SEC issued this related press release on Tuesday.]

1. Business Day for ’34 Act Report Deadlines – Friday will not be considered a business day for Form 4 and other ’34 Act deadlines. It’s considered just like a federal holiday for deadline purposes (see Rule 0-3(a)).

2. Tender Offers – If you are counting your 20 business days for a tender offer, it is my understanding that the SEC staff takes the position that if the offer is ongoing, you can still count the unscheduled Friday holiday in the 20 days. But you shouldn’t end the offer – or start it – on Friday.

3. Filing Deadline for Form SH – The Form SH weekly filing deadline is the last business day of the calendar week following a calendar week in which short sales are effected. Due to the Executive Order requiring the federal government to close on December 26th, the last business day of this calendar week is Wednesday, December 24th. Accordingly, Form SH filings disclosing this week’s positions must be submitted by 5:30 pm Eastern on December 24th to be deemed timely filed. [Update – Different Staffers (ie. Corp Fin vs. IM) are saying different things about this one. So it’s uncertain if they are due on the 24th or can wait until the 29th.]

FASB Adopts New Securitization Disclosures Effective This Year

Recently, FASB issued a new FSP FAS 140-4 – entitled “Accounting for Transfers of Financial Assets” – which increases disclosure requirements about transfers of financial assets and variable interest entities. This FSP is effective now since it’s for reporting periods (interim and annual) that end after December 15, 2008.

The FSP is being adopted in connection with broader amendments that FASB proposed in September to Statement 140 and FIN 46(R). The two proposed amendments would significantly change accounting for transfers of financial assets, the criteria for determining whether to consolidate a variable interest, and associated disclosures. The amendments, if adopted, would be applicable for fiscal years beginning after November 15, 2009. We have posted memos analyzing these proposed amendments in our “Off-Balance Sheet” Practice Area.

FINRA: First Batch of “New” Rules

Recently, FINRA issued a Notice advising that the first group of consolidated FINRA rules were effective as of December 15th. In addition, FINRA has published this nifty rule conversion chart showing the conversation of NASD to FINRA rules (see links to two other conversion charts on the right side of the page). The conversion chart references the relevant rule filing number that is hyperlinked to each rule filing, which filings provide a statement of the purpose of the rule change and the text of the changes between the NASD or NYSE rules and FINRA rules (where applicable). FINRA will issue additional effective date notices every time they update the FINRA Manual until the process is complete.

– Broc Romanek