On Oct. 5, 2016, the Division of Corporation Finance announced that, effective immediately, they will no longer require issuers to include “Tandy” representations in responses to SEC comment letters. Tandy representations, which have been required in all such response letters since 2004, are acknowledgments that:
the issuer is responsible for the adequacy and accuracy of disclosures made in a filing that is subject to the SEC comment and review process,
comments by the SEC staff, changes to disclosure in response to comments by the SEC staff, or the declaration of effectiveness of a filing do not foreclose the SEC from taking any action with respect to the filing, and
the issuer will not assert the SEC staff’s comments or the declaration of effectiveness of a filing as a defense in any legal proceeding initiated by the SEC or under federal securities laws.
In the mid-1970s, the staff began to include requests for Tandy representations (named for the first issuer that received such a request) in comment letters when the staff had an open enforcement inquiry related to a particular issuer. However, in 2004, when most SEC comment letters and responses became publicly available on EDGAR, the staff announced that they would request that issuers include Tandy representations in all responses to comment letters.
In lieu of a request for Tandy representations, the staff intends to include the following statement in comment letters:
“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.”