SEC Staff Allows Early Adoption of Electronic Signatures

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On November 20, 2020, the Staff of the SEC’s Division of Corporate Finance, Division of Investment Management, and Division of Trading and Markets issued a statement that it would not recommend enforcement action against persons utilizing electronic signatures in compliance with recent rule amendments to Rule 302(b) of Regulation S-T even though the amendments have not yet become effective.  As previously reported, on November 17, 2020, the SEC announced new rule amendments to permit the use of electronic signatures for certain filings after the signatory has provided a one-time, manually-signed attestation to the filer that his or her electronic signature is the legal equivalent of a manual signature (see here for a model form of attestation).  The amendments will officially become effective upon publication in the Federal Register.

The Staff also reaffirmed that it would continue to provide temporary relief from, and not recommend enforcement action with respect to, existing document retention requirements related to manual “wet ink” signatures under Rule 302(b) provided that:

  • the signer retains the manually-signed signature page or authentication document;
  • the signer promptly provides either his or her manually-signed signature page or authentication document or an electronic copy (such as a .pdf scan) of such document to the filer;
  • the signer includes the time and date of execution on the signature page or authentication document; and
  • the filer develops and maintains policies and procedures for this remote signature process.

Although statements of the Staff have no legal force or effect, they provide important insight into how the Staff views its enforcement priorities.  Here, the Staff’s support of the early adoption of electronic signatures should encourage filers to move more quickly, in light of the worsening COVID-19 pandemic, to avail themselves of the flexibility offered by the recent rule amendments.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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