August 18, 2003

As bad luck would have

As bad luck would have it, the power blackout affected the ability of some companies to file their 10-Qs on Thursday, and even Friday. The SEC staff has indicated its willing to adjust the filing date for these companies in certain circumstances – and has provided instructions on how to make a date adjustment request.

We continue to receive a number of questions about CEO/CFO certifications, including what to do with amended 10-Ks. It would appear that the certifications for an amended 10-K could follow the old certification rules if the original 10-K was not “due” on or after August 14th – because the amendment technically does not have a due date and the amendment relates to the original 10-K’s timeframe (when the new controls/procedures requirements were not imposed). So the amended 10-K should be able to use the old language regarding controls/procedures – and have the 302 certification following the signatures and the 906 certification as exhibit 99. However, if you decided to go this route, I recommend calling the SEC staff to confirm that it would be acceptable.

And remember that if you are filing an amendment that doesn’t affect the financial statements, the SEC staff informally has indicated that you only have to include paragraphs 1 and 2 of the certification.

Former SEC trial attorney Gary Goodenow has launched, which includes some interesting information about his perspective of how the SEC’s Miami office functions. We would be remiss if we did not point out that our own “SEC Enforcement” practice area has a wealth of information about the SEC’s enforcement process, including dozens of FAQs.

After a 9-month vacancy, the SEC finally hired a new Chief Accountant, long-time PricewaterhouseCoopers partner Donald Nicolaisen.