As some clients are continuing to finalize their 10-Qs, we are answering a frequently asked question about the new Exhibit 104 requirement in Form 10-Qs for large accelerated filers in light of recent questions on this topic.

Question:  As a large accelerated filer, should our 10-Q exhibit list include a separate reference to Exhibit 104?

Answer:  Based on our discussions today with senior Staff within the SEC’s Division of Corporation Finance, we understand the position of the Staff in Corp Fin’s Office of Chief Counsel, which we note continues to wrestle with implementation issues (particularly regarding 8-K implementation issues), is that a registrant should explicitly reference an Exhibit 104 in the list of exhibits.  And because the recent EDGAR Filer Manual makes clear that a registrant meets its obligation under Exhibit 104 by providing the cover page interactive data file using an Inline XBRL document set with Exhibit 101, the registrant should simply cross-reference to Exhibit 101.

For example, Exhibit 104 could include a cross-reference as follows:

“Exhibit 104          The cover page from the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2019, formatted in Inline XBRL (included in Exhibit 101).”

We also remind large accelerated filers that the recent instructions to 601(b)(101) of Regulation S-K were amended to require that for interactive data files, the exhibit index must include the word “Inline” within the title description for any XBRL-related exhibits.  See Instruction 1 to Paragraphs (b)(101)(i) and (ii) of Regulation S-K.