By John-Paul Motley and Justin Kisner
On October 26, 2026, the SEC’s Division of Corporation Finance staff issued interpretive guidance to Cooley client Sumisho Air Lease that updates and extends the framework established in the Lamar Advertising no-action letter (Nov. 18, 1996) governing Form S-3 eligibility during a brief voluntary Exchange Act reporting period. The question recurs for issuers that find themselves briefly outside mandatory Exchange Act reporting as a result of the automatic suspension mechanism in Section 15(d) but intend to continue filing periodic and current reports and preserve access to the registered public capital markets.
That is the situation facing Sumisho Air Lease. Following its take-private transaction, its Section 15(d) reporting obligation is expected to be automatically suspended on January 1, 2027, and to be restored shortly thereafter upon the filing of its 2026 Form 10-K, producing a voluntary reporting period of up to approximately three months. Under the SEC staff’s prior position, reflected in Securities Act Forms CFI Question 115.15 and Lamar Advertising, Form S-3 eligibility for a temporary voluntary filer required, among other conditions, a return to mandatory reporting status through a new Section 12 registration, as occurred in Lamar Advertising in connection with an IPO.
The interpretive guidance extends Lamar Advertising by carrying forward its core principle that a temporary voluntary filer can retain Form S-3 eligibility and updates the framework by recognizing that the return to mandatory reporting status can also be achieved through a compelled Section 10(a)(3) shelf update (here the 2026 Form 10-K), as a functional equivalent of new Section 12 registration. That update rests, among other reasons, on a straightforward policy point: public disclosure remains continuous and uninterrupted throughout the voluntary period, which satisfies the disclosure premise underlying Form S-3. The SEC staff’s concurrence allows Sumisho Air Lease to continue offering securities under its 2024 shelf during the voluntary reporting period, to rely on that shelf following the 2026 Form 10-K Section 10(a)(3) update, and to file subsequent Form S-3 registration statements in reliance on the SEC staff’s position. The outcome is also consistent with the policy direction reflected in the SEC’s Registered Offering Reform Proposing Release (No. 33-11418, May 19, 2026), which proposes eliminating General Instruction I.A.3’s 12-month seasoning requirement altogether.
The Division has revised Securities Act Forms CFI Question 115.15 to cite the Sumisho Air Lease letter alongside Lamar Advertising, incorporating this additional path to Form S-3 eligibility into its published interpretive guidance. By revisiting and building on a nearly 30-year-old interpretive position, the SEC staff has taken a measured approach, grounded in the regulatory text and sound policy, that offers welcome practical relief to similarly situated issuers navigating the automatic suspension mechanism in Section 15(d).
For additional information, please see Cooley’s submission letter and the SEC staff’s response letter, or contact the lawyers below.
John-Paul Motley | jpmotley@cooley.com | 213-561-3204
Justin Kisner | jkisner@cooley.com | 858-550-6109
