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Nelson Mullins COVID-19 Resources

Nelson Mullins is continuing to monitor developments related to COVID-19, including guidance from the Centers for Disease Control (“CDC”); World Health Organization; various health officials; and federal, state, and local government authorities. The firm is taking appropriate precautionary actions and has implemented plans to ensure the continuation of all firm services to clients from both in office and remote work arrangements across in our 25 offices.

Nelson Mullins COVID-19 Resources

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Securities Alert

February 7, 2020

SEC Disclosure Considerations for Coronavirus - Risk Factors, MD&A and Other Disclosures, Including Guidance on Labor and Employment Law, Data Privacy and Cybersecurity Considerations

By Adele Hogan

The news reports related to the spread of the coronavirus (temporary name of 2019-nCoV (“CV”)) and current and potential economic impacts from it may raise securities law disclosure issues for some companies.  Those issues include analysis about what disclosure is required by securities laws in Annual Reports, Form 10-Ks, earnings releases in Form 8-Ks and public and private securities offering documents.  While the human impact is significant and not to be minimized, this Securities Alert focuses on some of the factors to consider to determine if and when securities law disclosure obligations related to CV are triggered.

The response to CV, including countries closing borders, enhanced health screenings, healthcare service preparation and delivery, quarantines, cancellations, disruptions to supply chains and customer activity, as well as the general concern and uncertainty, have begun to impact every industry.  This Securities Alert discusses the following:

  • the SEC’s forward-looking disclosure obligations and decision-making matrix when outcomes are uncertain but a known trend or uncertainty will be (or is “likely to cause” under the proposed SEC rules issued January 30, 2020) a material change,
  • selected disclosure considerations by industry,
  • environmental, social and governance (“ESG”) considerations,
  • the role Board members and executives have in SEC disclosure and
  • enhanced labor and employment law, data privacy and cybersecurity considerations.

SEC Disclosure Obligations When Outcomes are Uncertain

Continuing its modernization and simplification of Regulation S-K as mandated by the JOBS and FAST Acts, the SEC, on January 30, 2020, proposed amendments to certain financial disclosure requirements of Regulation S-K, particularly Management’s Discussion and Analysis of Financial Condition and Results of Operations (MD&A). The proposed amendments are intended to eliminate overlapping or unnecessary disclosure requirements, to revise requirements in light of advancements in technology (such as the availability of past financial statements and disclosure documents on EDGAR) and to further promote the “principles-based” nature of MD&A disclosure.  In addition to the numerous personal implications of the CV outbreak, companies should keep in mind this principles-based approach when considering the disclosure obligations that may be implicated.

There are many uncertainties around CV's likely financial impact on gross earnings, net earnings and other business matters.  The ESG (environmental, social and governance) factors are also hard to quantify at this time.  Nevertheless, if the forward-looking disclosure of CV relates to a “known trend or uncertainty, then the following chart outlines the decision-making process related to SEC disclosure obligations.

Forward Looking Disclosures Decision Tree:
Is the “Known Trend” Likely to Come to Fruition?
(1989 FR 36 Release – Describe and Quantify Causal Factors)

Three Outcomes:

Not reasonably Likely to Come to Fruition Just Don't Know... Is Reasonably Likely to Come to Fruition
No Disclosure Must Assume "Yes" and Disclose if Material Assess and Disclose if Material


As the chart above indicates, where boards and executives are uncertain of the outcome, and the outcome could be material, then disclosures must be made.  That is particularly difficult at the early stage of a health situation such as CV.

The impact of CV may have repercussions on a number of disclosure areas, including liquidity and capital resources, sources and uses of funds, gross and net revenues in the short, medium and long term, and other economic and non-economic, personal and ESG considerations.  Enhanced or additional risk factor disclosure related to CV pursuant to Regulation S-K Item 105 may be needed if it is or becomes one of the most significant factors that make an investment in the company or any offering speculative or risky.  Since SEC disclosure is increasingly principles-based, even if there is not a rule specifically dealing with a situation that a company may find itself in related to CV, the principles of full and fair disclosure apply.  Companies should be mindful that their planning for uncertainties that may arise as a result of CV and their response to events as they unfold may be material to an investment decision, and should plan accordingly.

Consider other situations where disclosure of material nonpublic information may be necessary, such as if senior management or boards become impaired and are unable to serve or whether a “material adverse change” in “prospects” has occurred or is reasonably likely to occur.  Business interruption insurance policies may be triggered.  “Act of God” provisions may be applicable.  Contract disputes may occur over CV related matters.   Professionals should review and update insider trading policies,  blackout periods and trading activity monitoring in light of new information related to CV.  Mergers and acquisitions activity may increase due to temporary dips in targets stock prices, while other deals may be temporarily stalled while the impact from CV is assessed.  Filings and other deadlines may be inadvertently missed and there may be gaps in government services in various parts of the world at various times. We are anticipating that disputes and  litigation related to CV and its aftermath may increase, and companies should consider many factors, not just more immediate concerns, when evaluating whether CV related disclosure is required under the securities laws.

It is noteworthy that in the SEC’s proposal issued on January 30, 2020 to update MD&A, in Item 303(a)(3)(ii), companies would be required to disclose known events that are reasonably likely to cause (as opposed to will cause) a material change in the relationship between costs and revenues.

Interestingly, the proposed amendments would for the first time provide guidance about the use of metrics.  Metrics may be important related to CV and its likely trajectory and impact. According to the SEC Release regarding the proposed amendments:

The guidance provides that, where companies disclose metrics, they should consider whether additional disclosures are necessary and gives examples of such disclosures. The guidance also reminds companies of the requirements in Exchange Act Rules 13a-15 and 15d-15 to maintain disclosure controls and procedures and that companies should consider these requirements when disclosing metrics.

The complete SEC Release regarding the proposed amendments is available here.  It is inevitable that some companies will have to grapple with how to handle complex SEC disclosure obligations related to CV, even if the impact is temporary or short term.   

Selected Disclosure Considerations by Industry

We have prepared specific factors to consider and guidance for various industries related to SEC disclosures for the impacts of CV.  Please contact your regular Nelson Mullins attorney or the author of this Securities Alert to discuss our industry guidance for your company. Impacted industries may include, without limitation:

  • Education, Research and Religious Institutions (child care, pre-school, elementary, secondary, colleges, universities, research institutes, think tanks, public libraries, religious institutions and related services)
  • Financial Services (banks, insurance, investment banks)
  • Food/Beverage (food supply, farmers, restaurants, agriculture and livestock)
  • Government (courts, military, legislative bodies, governmental authorities, Homeland Security, local councils and administrative bodies, social services, prisons,  etc.)
  • Healthcare (pharmaceutical companies, hospitals, nursing homes, urgent care, medical devices, etc.)
  • Investment Management and Funds (private equity, venture capital, alternative assets)
  • Leisure (casinos, cruise lines, hotels, sports clubs, country clubs, ski resorts, theaters, publications, zoos, amusement parks, museums, health clubs, spas) (including social media and the Press)
  • Manufacturing
  • Real Estate (shared office service companies, open floor plan design companies, commercial and residential buildings, homes, cooperatives and condominiums, etc.)
  • Retail
  • Service Providers (consultants, lawyers, accountants, advisors, human resources, payroll, security, architects, etc.)
  • Transportation (air, auto, bus, rail, shipping)
  • TMT (technology, media and telecommunications)

ESG Considerations

ESG considerations are always important, and have a heightened relevance at a time when CV and its ramifications are unknown.  Some considerations include:

  • Environmental:  What chemicals and drugs will plants, animals and humans be subjected to?  What lingering impact will they have on the environment and nature?
  •  Social:  What steps should be taken to protect populations and prevent unnecessary discrimination?  How will various levels of employees be treated in a fair manner?  What are the considerations of employees, shareholders, customers, suppliers and other stakeholders?  How should their needs be prioritized?
  • Governance:  What policies, procedures and controls are in place to ensure good governance?  Are the governance standards appropriate and rigorous enough to withstand unusual stresses?  What are the contingency plans and quality assurance protocols?

Role of Boards of Directors and Senior Management

If the CV situation continues to escalate, it is and will be a time for each person to show leadership and fortitude in small and sometimes large ways.   Directors, trustees and management as well as those in equivalent positions can work to better inform themselves and exercise good judgement and gravitas.  Strong legal counsel can be extremely helpful on this journey and help avoid unnecessary legal and other problems down the road.

Enhanced Labor and Employment Law, Data Privacy and Cybersecurity Considerations

In some jurisdictions, including New York State and New York City, an employee who contracts the flu or a serious virus may be considered disabled and entitled to additional protections under relevant employment law.  In those jurisdictions, the employer may be obligated to engage in the interactive process to accommodate the employee by providing additional leave or other accommodations beyond any statutory sick leave entitlement or company policy. Some other considerations include:

  • Data Privacy.  The employer could have certain confidentiality obligations under the Health Insurance Portability and Accountability Act (“HIPAA”) related to the protection of personal health information of the ill employee.  Collecting, storing, sharing and selling personal data, for example, may also implicate the California Consumer Protection Act that came into effect on January 1, 2020 (“CCPA”), General Data Protection Regulation (“GDPR”) or other data privacy regulations.  
  • Cybersecurity.  Cybersecurity policies and procedures may need to be updated to accommodate increased offsite working by employees and increased internet traffic by customers, suppliers and other stakeholders.  Enhanced guidance on use of public Wi-Fi, covering computer screens so information is not publicly displayed, and use of office equipment off premises may be appropriate.  Heightened vigilance to prevent phishing and other cybersecurity breach attempts, scams, fraud, money laundering, theft and other criminal activity is warranted during this period.
  • Security.  Companies should make sure physical security related to access to offices, servers, documents, data and other assets are secured with reduced staff and off premises usage.
  • Social Media.  Policies related to appropriate social media usage should be revisited as appropriate, including heightened sensitivity training where necessary related to CV and its impact on people.
  • RIFs.  To the extent the impact of CV disrupts the economic plans of companies, a company may face more serious financial pressure to consider furloughs and reductions in force (“RIFs”).  These considerations should be made with careful understanding of various wage and hour implications as well as mass layoff laws, including any advance notification requirements.  Furthermore, anti-discrimination laws should be followed.

Some of these considerations related to CV outlined above may trigger disclosure updates under the securities laws.  Please consult your regular Nelson Mullins lawyer or the author of this Securities Alert for specific guidance on labor and employment law, data privacy (including HIPPPA, CCPA and GDPR) and cybersecurity matters related to CV and any economic repercussions from it.

Conclusion

The CV situation may be a relatively contained situation or become more serious.  When it is too early to tell, but the impact will  be  material (or is reasonably likely to be material) if the uncertain event occurs, then the securities law disclosure obligations may be triggered.  At this point, it may be difficult to ascertain what disclosure is appropriate, but many companies have already added disclosure about CV and its likely impact on their business to their earnings releases and other disclosure documents.  Checking other similarly situated companies’ disclosure as well as periodic advice from regulators may provide additional guidance.   Your regular Nelson Mullins attorneys and the author of this Securities Alert are here to advise you on SEC disclosure guidance and your other corporate and litigation needs related to CV and its impact.

If you have questions or would like more information, please contact Adele Hogan at 646.428.2634 or adele.hogan@nelsonmullins.com.