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A Note to Our Clients About the Effects of a Federal Government Shut Down on the SEC

April 8, 2011

 

Should the U.S. federal government shut down at 12:01 am Saturday April 9, 2011, the operations of the Securities and Exchange Commission will virtually cease. The SEC has posted information regarding the shut down at the SEC website. The following are our views regarding the operations of the SEC during a federal government shut down. If the SEC provides additional guidance, we will update this note.

  • The EDGAR filing system will be fully functional, including for the payment of fees. As there will be limited staff available, it is unlikely that assistance will be available with regard to EDGAR filing or fee issues. As such, companies should make certain that all fees are paid in full.
  • Each normal business day on which the SEC is shut down will be a “business day” for purposes of the Securities Act, Exchange Act and the SEC’s rules.
  • You should continue to make Exchange Act filings -- such as Form 10-K, Form 10-Q, Form 8-K, Form 3, and Form 4 - on or before their due date.
  • There will be no SEC attorneys or accountants available to process filings, clear comments, or confirm the absence of stop orders.
  • Those Securities Act registration statements and post-effective amendments that become effective automatically will continue to become effective. Other registration statements and post-effective amendments that become effective only through action by the SEC or the staff will not be declared effective or accelerated.
  • Those preliminary proxy statements that have been on file for the required 10-day period may be mailed, as no staff or SEC action is needed with regard to such mailing.
  • If you have a preliminary proxy statement that is subject to staff comments and are unable to resolve those comments prior to the necessary mailing date for that proxy statement, you should consult with counsel to determine whether it is appropriate to mail the proxy statement.
  • It will not be possible to obtain no-action relief or answers from the staff with regard to interpretive questions. If you have a no-action request pending with the staff regarding a shareholder proposal and are faced with a proxy mailing decision, you should consult with counsel as to whether to include the shareholder proposal in the proxy statement.

If you have any questions regarding these or other issues, please contact your O’Melveny & Myers adviser.