It isn't just missed paychecks and stalled IPOs -- for investors, the prolonged government shutdown could carry risks that aren't so obvious.
Now in its 34th day, the partial government shutdown is now the longest in history and its consequences are reverberating beyond struggling federal workers at the numerous agencies that are either shuttered completely or operating on a shoestring until a resolution is reached.
Among those agencies is the SEC, which is charged with overseeing the securities markets. As TheStreet has reported previously, the lengthy shutdown means uncharted territory for companies planning IPOs in the early part of 2019 -- and combined with market volatility, even potential delays to highly anticipated offerings like Uber, Lyft and others.
But there are other potential risks that investors should be aware of, according to Jay Knight, a former SEC special counsel and current attorney at Bass, Berry & Sims. In addition to the potential of delayed IPOs, delayed M&A transactions are possible as the shutdown drags on. In M&A, where a deal is generally expected to get done on a certain timeline, the lack of SEC oversight puts companies in a real bind.
"I think securities counsel and their clients are trying to come up with as many creative solutions as they can," Knight said.
One such measure is referred to as removing the delaying amendment, by which a company can declare a filing automatically effective 20 days after filing -- with or without SEC feedback.
"It's becoming more common with companies in the M&A space, where you have all sorts of considerations: shareholder meetings, deal certainty, or you could have a merger agreement itself that has to have it close by a certain date. You have more time pressures," Knight explained.
Companies trying to raise money or close deals are under greater duress during the prolonged shutdown. But bare-bones oversight at the SEC, and companies under time pressure to get transactions done, can also mean risks for investors. In an S-1 filing this week by the biopharmaceutical firm Gossamer Bio, Inc., the company laid out the risks tied in to the government shutdown alongside the risk disclosures one would see normally in an S-1 filing.
"As a result of the shutdown of the federal government, we have determined to rely on Section 8(a) of the Securities Act to cause the registration statement of which this prospectus forms a part to become effective automatically," the company explained in the filing, citing the legal clause that makes it possible to make its IPO filing effective automatically. "Our reliance on Section 8(a) could result in a number of adverse consequences, including the potential for a need for us to file a post-effective amendment and distribute an updated prospectus to investors, or a stop order issued preventing use of the registration statement, and a corresponding substantial stock price decline, litigation, reputational harm or other negative results."
If the shutdown drags on further into the year, the risks to companies -- and to investors seeking reliable information -- could grow even more complex, Knight suggested.
"It's getting to 10-K filing season and proxy season for companies, and that makes it a particularly troublesome time of year for the SEC to be closed. In connection with that, there's disclosure issues that may arise -- investors are looking for disclosures from companies," Knight added. "It's putting companies in a challenging position."