A member of the community brought this situation to my attention. In tandem with the Reg G rulemaking, the SEC adopted new rules earlier this year that require ’34 Act reporting companies to file an 8-K under new Item 12 to “furnish” any earnings releases as an exhibit to the Form 8-K. As a result, some companies have filed 8-K’s pursuant to the new Item 12 that list the earnings release as an exhibit under Item 7(c) (which is the Item that the Form 8-K suggests should be used to list exhibits).
In recent SEC comment letters, the staff indicates that their position is that listing the earnings release as an exhibit under Item 7(c) results in the earnings release being deemed “filed” as opposed to “furnished” for purposes of ’33 and ’34 Act liability. Recall that information that is “furnished” is not subject to ’33 and ’34 Act liability, but information that is “filed” is subject to such liability. The staff would prefer that the 8-K simply furnish the earnings release as an Exhibit 99 without reference to any Item number (other than Item 12).
Apparently, the staff wants to be able to easily distinguish between 8-K’s that were “furnished” and those that were “filed.” The end result doesn’t seem to make much sense, particularly in light of the fact that Item 7(c) of Form 8-K states that “the exhibits shall be furnished in accordance with the provisions of Item 601 of Regulation S-K” – but it may be wise to follow this guidance (and not list any 8-Ks that were previously “furnished” under Item 7(c) in the list of exhibits in a registration statement – so as to avoid them being deemed incorporated by reference). If you have your own interesting comments from the staff, please share them at firstname.lastname@example.org.
For TheCorporateCounsel.net members, we have posted interviews with Catherine Meeker, W. Scott Ortwein and Dennis Garris on the SEC’s Director Nomination Proposal and Kirk Maldonado on the Basics of Form 11-K.