American Corporate Counsel Association
February 12, 2003
Jonathan G. Katz, Secretary
RE: File No. S7-52-02
Dear Mr. Katz:
On behalf of the American Corporate Counsel Association, ACCA's Corporate & Securities Law Committee is pleased to have the opportunity to comment on "Mandated Electronic Filing and Website Posting for Forms 3, 4 and 5." ACCA has more than 14,000 individual members who act as in-house counsel to more than 6,000 business entities. The Corporate & Securities Law Committee is the largest of ACCA's committees, with over 4,500 attorney members, most of whom work in public companies subject to the Commission's disclosure requirements.
ACCA recognizes that the Commission's objective is to implement the legislative mandate of the Sarbanes-Oxley Act. We have included suggestions intended to address practical problems that our members might have under the proposal.
1. Accommodate West Coast Filers
We view an extension of the deadline from 5:30 to 10:00 p.m. favorably. We believe that this will help to accommodate our members who reside on the West Coast.
We also urge the Commission to extend the deadline further to 12:00 midnight Eastern Time. The Sarbanes-Oxley Act of 2002 requires the reports to be filed before the end of the second business day following the day on which the subject transaction has been executed. Filings received and accepted by 12:00 midnight Eastern Time will have complied with the statutory requirement.
In addition, the Commission should consider in the development of the filing system the ability/functionality to allow electronic submission to the Commission 24 hours per day, 7 days per week and 365 days per year. Although the Commission does not operate during all of these times, the technology exists to place the submissions in a queue pending the actual filing during the next available window. This flexibility will make it easier for insiders and those filing on their behalf to file on a timely basis as they will not have to schedule their filings during the limited period that the filing website is currently available.
2. Maintain Forms 3, 4 and 5 in a Separate Location on the SEC's Web Site
We believe placement of the Forms 3, 4 and 5 in a separate location will ease retrieval and analysis of the contents of these forms by interested investors.
3. Fix the Problem of Subsequently Filed Form IDs
Presently, if a filer has obtained filer codes (or an issuer has obtained the codes on behalf of the filer) from the Commission and another person, on the filer's behalf, subsequently files a Form ID to obtain a new CCC in order to facilitate filing for that filer, the Commission will issue a new CCC number.
The Committee is aware of problems with issuers attempting to make filings on behalf of board members, for example, that are members of more than one board of directors. The Committee suggests that the Commission take affirmative steps to eliminate this problem. Ideally, someone that files a subsequent Form ID or an amendment on behalf of a person that already has filer codes should be given the existing codes and permitted to use them.
4. Maintain the Temporary Hardship Exemption
In response to the Commission's questions regarding temporary hardship exemptions, the Committee requests that the Commission maintain the temporary hardship exemption as proposed. As the release indicates, the Commission expects that hardship exemptions for Forms 3, 4 and 5 will be available infrequently. Presumably then, hardship exemptions that are granted will be granted because of deserving circumstances.