Olivia Herbstritt

E-Delivery as Default

Under Reg E-Delivery, a covered entity[5] could meet its delivery obligations through e-delivery without first obtaining affirmative consent if: (1) the covered recipient[6] has provided an electronic address[7]; (2) the covered entity has prominently disclosed to the covered recipient that it will send covered information[8] to the electronic address provided; and (3) the covered recipient has not opted out of e-delivery.[9] 

Covered entities would generally be required to send a paper copy of covered information, free of charge, upon request.[10] Additionally, a covered entity would be required to permit a covered recipient to opt out of e-delivery at any time and receive delivery of covered information in paper format, free of charge.[11]

E-Delivery Methods and Timing

Under Reg E-Delivery, there would be two methods of e-delivery:

• Direct Delivery: For information that does not contain personal financial information (PFI), a covered entity may deliver the information directly to a covered recipient’s electronic address (e.g., emailing covered information as an attachment or within the body of an email).[12]
• Statement of Availability: When information contains PFI, such as account numbers or details about specific securities transactions, covered entities would be required to provide a statement of availability to the recipient’s electronic address, which would provide a means to access the information in such a way that is reasonably designed to protect the PFI (e.g., emailing a link to access the document through a secure online portal).[13] A covered entity would also be permitted to use the statement-of-availability method for information not containing PFI.[14]

Reg E-Delivery would require covered entities to adopt and implement written policies and procedures that are reasonably designed to identify and remediate failed e-delivery, such as obtaining an electronic address for the intended recipient or delivering the information in paper format until the recipient provides an electronic address.[15]

Covered information would be required to be presented in a format that is convenient for both reading online and printing on paper.[16] In a statement, Commissioner Hester Peirce criticized the proposed requirement to format information to be optimized for printing on paper, stating that it would restrict firms’ ability to experiment with cellphone apps, streaming video, podcasts and anything else that is not an e-delivered PDF, and that could help investors engage with and understand the information being presented.[17]

Notice and Transition Process for Recipients Receiving Covered Information in Paper Form

Under the proposed rules, entities would be able to transition to default e-delivery after providing covered recipients who are currently receiving covered information in paper form an initial notice at least 180 days before the transition and a follow-up notice at least 30 days before the transition, unless a recipient opts out.[18] A covered recipient who already has consented to and receives e-delivery of all covered information would not need to be notified and could continue to receive e-delivery. The notices would need to, among other things, describe the ability to opt out, provide the date that default to e-delivery would begin, and include the electronic address that would be used.[19]

Impact of Reg E-Delivery on Certain Existing Rules, Regulations and Guidance

E-Sign Act

Reg E-Delivery would exempt certain covered information delivered under Reg E-Delivery from consumer consent requirements to the extent such information would otherwise have required consumer consent under the Electronic Signatures in Global and National Commerce Act (E-Sign Act).[20]

Rule 30e-3 of the Investment Company Act of 1940

Given the broader scope of the e-delivery framework if Reg E-Delivery is adopted, Rule 30e-3 would be rescinded. Rule 30e-3 currently allows only closed-end funds and insurance company separate accounts operating as investment companies, but not open-end funds, to satisfy shareholder report delivery requirements by posting reports online and mailing a paper notice.[21]

Proxy Materials and Tender Offer Materials Amendments

The proposal would amend certain rules under Securities Exchange Act of 1934 (Exchange Act) Regulations 14A and 14C that currently provide a print or a “notice and access” framework, in which the relevant proxy materials or information statement materials are posted online, and shareholders receive a paper notice of internet availability of the proxy materials.[22] The proposal would eliminate the paper notice of internet availability and expressly incorporate the permitted e-delivery methods of Reg E-Delivery (i.e., the statement of availability and the direct delivery methods) and their associated requirements as well as the website availability requirements into the delivery framework for proxy materials and information statements.[23] This change would be particularly impactful for closed-end funds that have annual shareholder meetings and votes to elect directors and on other matters.

With respect to tender offers, Reg E-Delivery would amend Exchange Act Rule 14d-5 to clarify that e-delivery is a permissible and reasonably prompt means of disseminating tender offer materials.[24]

Compliance Timing

While transitioning to e-delivery would be voluntary, the SEC has proposed an effective date 60 days after adoption of Reg E-Delivery and a two-year interim period running from the effective date during which entities could continue to rely on the existing guidance or elect to rely on Reg E-Delivery.[25]

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