7.08 Exhibit 31 certifications are marked 'Furnished herewith' instead of 'Filed herewith'
Company B · a US-listed transportation and logistics company · Drafting slip
In brief
The exhibit index marks the Rule 13a-14(a) certifications (Exhibits 31.1 and [n]) with the symbol for 'Furnished herewith', the status that applies only to the Section 1350 certifications in Exhibit 32. The company's 2025 Forms 10-Q mark the same certifications 'Filed herewith'.
The evidence, as filed
What the filing shows, and what the rule requires
| What the filing shows | What the rule requires |
|---|---|
Exhibits 31.1 and [n] marked '##' = 'Furnished herewith.' | Exhibits 31.1 and [n] marked '#' = 'Filed herewith.'; only Exhibits 32.1 and [n] marked as furnished. |
The rule
Regulation S-K Item 601(b)(32)(ii)
A certification furnished pursuant to this item will not be deemed
Version: Text in force at the date of this review · Source: Regulation S-K, 17 CFR 229.601(b)(32)(ii), as amended to 2025
Why it applies here. Item 601(b)(32)(ii) makes only the Section 1350 certification 'furnished' and not deemed filed; the Rule 13a-14(a) certification in Exhibit 31 is filed. The legend is the same in the prior-year 10-K, while the 2025 quarterly reports use 'Filed herewith' for Exhibit 31.
Why it matters
The index describes the Section 302 certifications as not filed, which is not their status.
How often the SEC staff raises this. In 1,100 SEC staff comment letters on fiscal 2023 and 2024 Forms 10-K, released January 2025 to October 2026, exhibits and certifications drew 41 of the 1,774 numbered comments (2.3%): topic 13 of 25 by frequency.
Exposure
No consequence beyond correcting the legend.
Management’s best defense, and our reply
The company would say the certifications are on EDGAR as Exhibit 31 documents whatever the legend says, and that the legend carries no legal effect. That is right, which is why this is only a drafting slip; the legend should still state the correct status.
The fix
- Mark Exhibits 31.1 and [n] '#' (Filed herewith) in the next Form 10-K.
Evidence relied on
| # | What it shows | Type | Where |
|---|---|---|---|
| 1 | Exhibit 31.1 row, marked '##' | Document | Form 10-K 2025, unnumbered page |
| 2 | Exhibit 31.2 follows, also marked '##' | Document | Form 10-K 2025, unnumbered page |
| 3 | The '##' legend reads 'Furnished herewith' | Document | Form 10-K 2025, unnumbered page |
| 4 | The [date] Form 10-Q marks Exhibit 31.1 '#' (filed herewith) | Document | |
| 5 | The prior-year exhibit index lists the Section 302 certifications (Exhibits 31.1 and [n]) with the '##' symbol | Document | Form 10-K 2024 (prior year), unnumbered page |
| 6 | In the prior-year legend '##' means 'Furnished herewith', the same marking as this year | Document | Form 10-K 2024 (prior year), page 49 |
Prepared by Pramanex from the company’s public SEC filings, without the company’s involvement, to show how a 10-K Pre-filing Check reads. The company is not named, and nothing on this page is a statement about any identifiable company. Observations are not an audit, review or other attestation or assurance engagement, and not legal advice. An SEC-style question is a question, not a conclusion.
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