Newsflash: SEC Staff No Longer Requires “Tandy” Representations in Filing Reviews

The staff of the U.S. Securities and Exchange Commission (SEC) announced on October 5, 2016 that, with immediate effect, it will no longer require companies to include “Tandy” representations in their disclosure filing review correspondence.¹

The announcement notes that Tandy language refers to an affirmative representation, in writing, from the disclosing company “that the disclosure in the document was its responsibility” and that it will “not raise the SEC review process and acceleration of effectiveness as a defense in any legal proceeding.” The practice of requesting Tandy representations in certain filings started in the mid-1970s, and in 2004 the SEC staff began to request Tandy representations as a routine matter in connection with all filing reviews.² Tandy representations typically take the form of acknowledgements that: (1) the registrant is responsible for the adequacy and the accuracy of the disclosure in the filing; (2) comments of the staff of the SEC or changes to disclosure in response to SEC staff comments in the filing reviewed by the staff do not preclude the SEC from taking any action with respect to the filing; and (3) if an inquiry or investigation is currently pending or threatened by the SEC and if the SEC subsequently, in order to protect its investigative position, so requests, the registrant will not assert SEC staff comments with respect to the inquiry or investigation as a defense in any proceeding initiated by the SEC under the federal securities laws of the United States. 

In its announcement, the SEC staff stated that “it remains true that companies are responsible for the accuracy and adequacy of the disclosure in their filings” and that the staff will insert the following language when issuing comment letters in the future: “We remind you that the company and its management are responsible for the accuracy and adequacy of their disclosures, notwithstanding any review, comments, action or absence of action by the staff.” 

Footnotes 

_{1) U.S. Securities and Exchange Commission, “Tandy” Representations No Longer Needed in Filing Reviews (Oct. 5, 2016).
2) U.S. Securities and Exchange Commission, SEC Staff to Publicly Release Comment Letters and Responses (June 24, 2004).}