Follow-Up Question to SEC's Guidance Regarding Conflict Minerals

News Brief

By Cydney Posner

You may recall that, in Corp Fin's recent guidance regarding conflict minerals, the staff advised in the last CDI that the failure to timely file a specialized disclosure report on Form SD regarding conflict minerals would not cause an issuer to lose eligibility to use Form S-3. In determining eligibility, the staff took the position that the requirement that issuers have filed in a timely manner all reports and materials required to be filed during the prior 12 calendar months refers only to Section 13(a) or 15(d) reports (such as Forms 10-K and 10-Q) and Section 14(a) and 14(c) materials (such as proxy statements and other soliciting material). Form SD is required to be filed under Section 13(p) and, "[t]herefore, the filing of Form SD regarding conflict minerals does not impact an issuer's eligibility to use Form S-3." Notwithstanding the breadth of the last sentence – or perhaps because of it -- there remained a question as to whether the staff's statement regarding eligibility is intended to address only "filing in a timely manner, " but not to address the similar requirement to be current, for the 12 months preceding the filing of Form S-3, in filing "all the material required to be filed pursuant to Section 13, 14 or 15(d)…." A staff member has confirmed to us informally that the CDI is intended to address only timeliness and that the staff is still considering whether to apply the same analysis to the requirement to be current, that is, whether an issuer can be eligible to use Form S-3 if a required Form SD has not been filed at all.

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