The Tensions Between the SEC’s COVID-19 Disclosure Guidance and the Muddled Duty to UpdatePosted on Nov 12, 2020
In this novel climate of economic uncertainty propelled by the ongoing global pandemic, regulatory guidance carries heightened importance for public companies that seek to ensure compliance with federal securities laws, rules, and regulations. However well-intentioned this guidance might be, significant issues may arise in practice when the legal bases for certain recommendations are unclear to both courts and litigants. One area in which such conflict may emerge is securities or disclosure fraud liability based on a public company’s purported duty to update prior disclosures that, although true when made, become misleading because of a subsequent event.
The Securities and Exchange Commission (“SEC”) invoked something similar to this duty on March 25, 2020, when its Division of Corporate Finance (“CF Division”) released its first major guidance regarding corporate disclosures and other securities law obligations that companies should consider with respect to the COVID-19 pandemic. Among its recommendations was a non-exhaustive list of questions companies should consider when assessing and disclosing the impact of COVID-19 and related risks on their present and future operations. Specifically, the CF Division encouraged “companies to provide disclosures that allow investors to evaluate the current and expected impact of COVID-19 through the eyes of management, and that companies proactively revise and update disclosures as facts and circumstances change.” The CF Division further suggested that companies should, in order to refrain from trading prior to their dissemination of material non-public information, “consider whether [they] may need to revisit, refresh, or update previous disclosure to the extent that the information becomes materially inaccurate.”
While nothing in the disclosure guidance represents an agency-promulgated rule or regulation, or has legal force, such an emphasis on updating disclosures raises the questions of whether companies have a duty to update and, if so, when this duty is imposed. Unfortunately for interested parties, these answers are far from clear. A duty to update is not expressly codified by any major securities law. Instead, the contours of the duty, to the extent that it is recognized, have been developed in courtrooms. The courts’ inconsistent treatment of the duty to update has created confusing and contradictory standards for all players involved in claims of a breach of the duty.
On one end of the debate, the Seventh Circuit Court of Appeals stands as the lone appellate court that has outright rejected the recognition of a duty to update beyond the periodic disclosure obligations of a public company. By contrast, other circuits have legitimized a possible duty to update theory of securities fraud liability in specific circumstances. In In re Burlington Coat Factory Securities Litigation, the Third Circuit explained how a duty to update may arise if a projection contains an implicit factual representation that remains alive in the minds of investors as a continuing representation, based upon what a reasonable investor would expect. The First Circuit has described the duty to update as potentially applying if a prior disclosure becomes materially misleading in light of subsequent events. While the Second Circuit has recognized that a duty to update may exist, it has stated that there is no duty to update vague statements of optimism or expressions of opinion. The Fifth and Eleventh Circuits have recognized the duty, at least in the abstract, as well.
Construed together, the cases that recognize a duty to update suggest that the key considerations are: i) whether the original statement remains “alive” in the sense of being relied on by reasonable investors and ii) whether the statement relates to a “fundamental change” to the issuer. Even when courts accept some idea of duty to update, they often find that a defendant has not breached it. Therefore, while this body of case law provides several examples of what actions do not breach the duty, great uncertainty exists as to what remains “alive” in the minds of investors and what types of statements relate to a “fundamental change.”
For the past thirty years, commentators have called for further clarity from Congress or the Supreme Court to rectify the conflicting case law. The highest court had a chance to take a stance on the matter in 2019, when a petition for certiorari argued that the Ninth Circuit became a clear outlier in creating a duty to update a statement of historical fact that was accurate when made if subsequent events diminish the “value” or “weight” of that statement. The Ninth Circuit had found that a company was obligated to disclose a later stage of pharmaceutical trial results because such disclosure “diminished the weight” of an earlier, true disclosure of preliminary results, though the court did not identify this as a “duty to update” explicitly. The Supreme Court declined to grant certiorari, leaving the question for another day.
While there is some debate over whether the Ninth Circuit implicated the duty to correct rather than the duty to update, the petition remains an example of the confusion surrounding the duty to update and whether the duty applies to historical statements with forward-looking components. With the SEC’s COVID-19 guidance drawing more attention to the importance of updating disclosures, the increase in both law enforcement scrutiny and private litigation under these theories looms large. Though safe-harbor provisions exist to protect good-faith disclosure, concerns over potential arguments that these disclosures were not adequately updated may lead to inconsistent disclosure practices among public companies in handling changes in the midst of COVID-19. This result could dangerously undermine the SEC’s disclosure regime as a whole, which seeks to level the playing field for investors, issuers, and the public, and, arguably, should provide a source of stability in a time that is everything but.
 Ann C. Kim, et al., SEC enforcement and litigation risks amid the COVID-19 pandemic, Hogan Lovells Publications (April 22, 2020), https://www.hoganlovells.com/en/publications/sec-enforcement-and-litigation-risks-amid-the-covid-19-pandemic [https://perma.cc/A2SE-2J36].
 CF Disclosure Guidance: Topic No. 9, Sec. & Exch. Comm’n (March 25, 2020), https://www.sec.gov/corpfin/coronavirus-covid-19 [https://perma.cc/YGN4-ACSD].
 The duty to update is distinct, yet often confused with, the duty to correct. The “duty to update” as discussed here refers to a duty to update prior statements that were correct when made but have become inaccurate due to subsequent developments. On the other hand, the “duty to correct” refers to a duty to correct statements that subsequently are discovered to have been incorrect when made. See 3C Harold S. Bloomenthal & Samuel Wolff, Securities and Federal Corporate Law § 18:23 (2d ed.). The conflation of the two duties may exacerbate the uncertainty surrounding whether and when a duty to update exists. See Bruce Mendelsohn & Jesse Brush, The Duties to Correct and Update: A Web of Conflicting Case Law and Principles, 43 Sec. Reg. L.J. 67, 68 (2015) (“[I]t is important to understand the distinction between these duties because they carry different obligations and liability risks and involve somewhat different legal considerations: a duty to correct may apply if the disclosure was materially false at the time it was made, and a duty to update may be triggered if the disclosure became materially false as a result of new developments.”) (emphasis in original).
 See Jeffrey A. Brill, Note, The Status of the Duty to Update, 7 Cornell J.L. & Pub. Pol’y 605, 609-10 (1998) (explaining how neither the Securities Act of 1933 nor the Securities Exchange Act of 1934 codifies the duty to update).
 See Bloomenthal & Wolff, supra note 5 (“It would be an understatement of major proportions to say that the federal courts are not in agreement as to whether federal securities law imposes a ‘duty to update.’”).
 See, e.g., Higginbotham v. Baxter Intern., Inc., 495 F.3d 753, 760 (7th Cir. 2007) (rejecting a duty to update before next quarterly report); Gallagher v. Abbott Laboratories, 269 F.3d 806, at 808-809 (7th Cir. 2001) (“We do not have a system of continuous disclosure. Instead firms are entitled to keep silent (about good news as well as bad news) unless positive law creates a duty to disclose … Judges have no authority to scoop the political branches and adopt continuous disclosure under the banner of Rule 10b-5.”); Stransky v. Cummins Engine Co., Inc., 51 F.3d 1329, 1332 (7th Cir. 1995), as amended, (Apr. 7, 1995) (finding that, if a company makes a historical statement that was accurate when made, it has no duty to update it based upon subsequent events).
 In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1432 (3d Cir. 1997).
 Backman v. Polaroid Corp., 910 F.2d 10, 16-17 (1st Cir. 1990).
 In re International Business Machines Corporate Securities Litigation, 163 F.3d 102, 110 (2d Cir. 1998) (finding that statements to the effect that the company did not plan to cut its dividend were vague expressions of opinion and not sufficiently concrete or specific to require updating).
 See Rubinstein v. Collins, 20 F.3d 160, 170 n.41 (5th Cir. 1994) (acknowledging the duty, though using the term “correct” rather than “update”); Finnerty v. Stiefel Laboratories, Inc., 756 F.3d 1310, 1316-17 (11th Cir. 2014) (“We have held that a duty to disclose may arise from a defendant's previous decision to speak voluntarily. Specifically, a duty exists to update prior statements if the statements were true when made, but misleading or deceptive if left unrevised. There is, of course, no obligation to update a prior statement about a historical fact.”).
 Mendelsohn & Brush, supra note 5 at 74.
 Id. (“But even courts that accept the duty in concept have often stated that it does not apply to the circumstances of the case at bar.”).
 See, e.g., Brill, supra note 6 at 677 (“The bewildering case law is in dire need of clarification and consistency, which will come only from further legislative action or a Supreme Court decision that directly addresses whether and when a company has a duty to update[.]”); Bloomenthal & Wolff, supra note 5 (“Ultimately, the question whether there is a duty to update may well be resolved by the U.S. Supreme Court, and given the state of the current law, it should be.”); Robert H. Rosenblum, An Issuer’s Duty under Rule 10b-5 to Correct and Update Materially Misleading Statements, 40 Cath. U. L. Rev. 289 (1991) (examining the “still murky” areas of when an issuer has a
duty to update a statement that was accurate when made, but later became misleading).
 Petition for Writ of Certiorari at 4, Hagan v. Khoja, No. 18-1010 (Jan. 31, 2019), 2019 WL 424694 at *4.
 Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1015 (9th Cir. 2018), cert. denied sub nom. Hagan v. Khoja, 139 S. Ct. 2615 (2019).
 Matthew C. Dallett, Is There a “Duty to Update” Public Disclosures? Supreme Court Declines to Review Decision that Did Not Clearly Present the Issue, JDSupra (June 14, 2019), https://www.jdsupra.com/legalnews/is-there-a-duty-to-update-public-36586/ [https://perma.cc/65L5-ZTJK] (discussing reasons why the Supreme Court may have declined to grant certiorari).
 See Steven E. Bochner & Samir Bukhar, The Duty to Update and Disclosure Reform: The Impact of Regulation FD and Current Disclosure Initiatives, 7 Stan. J.L. Bus. & Fin. 225, 249 (2002).
 Hillary A. Sale, Disclosure’s Purpose, 107 Georgetown L.J. 1045 (2019).