Category Archives: SEC Reporting

Introduction

In August 2000, the Securities and Exchange Commission (“SEC”) adopted Rule 10b5-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which, among other things, established an affirmative defense to a charge of transacting in a security on the basis of material nonpublic information (“MNPI”) for trades executed pursuant to a binding arrangement entered into at a time when a person was not in possession of material non-public information about the issuer of the security or the security itself. … More

Don’t forget that new SEC rules went into effect on January 31, 2022 to modernize filing fee disclosure and payment methods for securities transactions. These amendments include moving the fee table from the registration statement cover page to a separate exhibit. Click here to view the new rules.

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Special purpose acquisition companies (SPACs) have been gaining traction as one of the most popular exit strategies over the last year. They have been pitched as an easier way to go public because of the ease of working with one partner versus the large courting that typically happens with an IPO. But…is it too good to be true? Is this a fad or is it here to stay?



Our webinar panelists provide an overview of what a SPAC is,… More

2020 has been a banner year for IPOs by special purpose acquisition companies, or SPACs. Over 100 SPAC IPOs have closed so far in 2020, with aggregate gross proceeds of approximately $42.1 billion and an average IPO size of $382.4 million.[1] This represents a dramatic increase from 2019, in which 59 SPAC IPOs closed, with aggregate gross proceeds of approximately $13.6 billion and an average IPO size of $230.5 million.… More

On March 26, 2020, the SEC announced that it is providing additional temporary relief to market participants in light of the COVID-19 pandemic. The relief covers (i) parties needing to file a Form ID to gain access to the EDGAR system and (ii) certain company filing obligations under Regulation A and Regulation Crowdfunding.

Temporary Relief from Form ID Notarization Requirement

To use the SEC’s EDGAR system to make required filings,… More

The SEC has extended the conditional relief it granted earlier this month to allow reporting companies and others to delay certain filings required by the Securities Exchange Act of 1934. The relief originally covered filings due between March 1, 2020 and April 30, 2020; the relief now extends to cover such filings due on or before July 1, 2020. See our original post here for more information about the scope of the relief.… More

On March 25, 2020, the SEC’s Division of Corporation Finance published CF Disclosure Guidance: Topic No. 9, which provides the Division’s views regarding public companies’ reporting and other obligations under the federal securities laws in light of the current COVID-19 outbreak.

While acknowledging the rapidly evolving and unpredictable nature of the COVID-19 outbreak and the targeted disclosure relief recently provided by the SEC,… More

The SEC is rapidly responding to the ongoing COVID-19 crisis in ways big and small. For persons who are entering the SEC reporting system for the first time, which could be because they have been newly appointed an executive officer or director of a public company or have recently acquired beneficial ownership of more than 5% of a public issuer, a Form ID must be submitted to request the codes necessary to submit filings via the SEC’s EDGAR (electronic data gathering,… More

Following the SEC’s announcement on March 4, 2020 that it was providing conditional relief to public companies affected by COVID-19 for their filing obligations under the federal securities laws, many companies have availed themselves of this relief. 

In addition, several companies have already identified risks related to COVID-19 that are material to their businesses and investors, often noting that the full impact of the global pandemic remains uncertain.… More

As efforts to contain the spread of COVID-19 gain steam, companies may consider whether to hold a virtual annual meeting rather than a traditional in-person meeting.

To that end, the SEC staff has offered public companies flexible options to switch to a virtual meeting (or otherwise reschedule or relocate a meeting), even if they have already filed proxy materials and given notice of the meeting at a particular time,… More

On March 12, 2020, the SEC announced that it has adopted amendments to the “accelerated filer” and “large accelerated filer” definitions to “more appropriately tailor the types of issuers that are included in the definitions, thereby reducing unnecessary burdens and compliance costs for certain smaller issuers while maintaining investor protections.”

The amendments will exempt smaller reporting companies (SRCs) with less than $100 million in annual revenues from the requirement that their outside auditors attest to,… More

In response to the widespread outbreak of the COVID-19 pandemic in the United States, the U.S. Securities and Exchange Commission (SEC) has granted some flexibility to issuers with respect to their obligations to file periodic reports and deliver proxy and information statements to shareholders under the Securities Exchange Act.  On March 4, the SEC issued an exemptive order granting affected public companies, subject to certain conditions, an additional 45 days to file or deliver those materials. … More

On March 4, 2020, the SEC proposed amendments to existing exemptions from the registration requirements under the Securities Act of 1933 to simplify, harmonize, and improve the existing regulatory framework and to promote capital formation while preserving or enhancing important investor protections.  Promoting capital formation continues to be a primary object of the SEC, as evidenced by the previously proposed amendments to the “accredited investor” definition. (See our IPO,… More

The holidays came early in Washington, as on December 18, 2019, the Securities and Exchange Commission (SEC) gave investors the gift of a proposal to expand the definitions of “accredited investor” and “qualified institutional buyer”.  This gift has been under consideration for years, as the SEC published a staff report examining the accredited investor definition in 2015 and a broader concept release on the same topic earlier in 2019. … More

In 2018, the SEC adopted rules requiring the use of Inline eXtensible Business Reporting Language, often referred to as XBRL, for filings including financial statement information and fund risk/return summary information.  The Inline XBRL requirements recently became effective (in connection with filing a Form 10-Q for a fiscal period ending on or after June 15, 2019) for operating companies that are large accelerated filers that prepare their financial statements in accordance with U.S.… More

The SEC recently proposed revisions to Regulation S-K to streamline public companies’ disclosures of their business operations, risk factors and legal proceedings.  The proposed revisions affect Items 101(a) and (c), 103 and 105 of Regulation S-K.

Among other changes, the proposed rules would revise the requirements related to the general business description by adopting:

• a more principles-based approach that will require each company to address matters material to its business,…

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Yesterday, the SEC announced that it is proposing amendments to the “accelerated filer” and “large accelerated filer” definitions to “reduce costs without harming investors for certain smaller public companies and, importantly, encourage more companies to enter our public markets.”

Last summer, the SEC adopted amendments to expand the number of smaller reporting companies that qualify for scaled disclosure.  Among the adopted amendments was an increase in the public float threshold for smaller reporting companies from $75 million to $250 million. … More

Yesterday, the SEC announced that it would hold a public meeting on Thursday, May 9, 2019 to consider whether to propose amendments to the “accelerated filer” and “large accelerated filer” definitions to promote capital formation for smaller reporting companies.

Last summer, the SEC adopted amendments to expand the number of smaller reporting companies that qualify for scaled disclosure.  Among the adopted amendments was an increase in the public float threshold for smaller reporting companies from $75 million to $250 million. … More

Just hours after our recent blog post regarding the need to use the traditional process for CTR extensions, the SEC announced the adoption of a new streamlined process for CTR extensions.

This streamlined process requires the submission of a one-page application by which a company can affirm that the most recently considered CTR application continues to be true, complete and accurate regarding the information for which the company continues to seek confidential treatment.  … More

A confidential treatment order for information redacted from an exhibit is about to expire. Under SEC rules that took effect last week (see our prior blog posts here  and here), public companies can now redact the same type of information without prior SEC review, so the company doesn’t have to do anything, right?

Wrong.  The SEC has confirmed that its new rules for the redaction of confidential information from certain exhibits do not automatically extend orders for confidential treatment granted under the traditional application process.… More

The SEC staff has issued supplemental guidance regarding its new rules for the redaction of confidential information from certain exhibits, which take effect today. See our blog post here for more detail on the new rules.

Consistent with prior practice, a company redacting information from a material contract must:

• note in the exhibit list that portions of the exhibit have been omitted;…

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On March 20, 2019, the SEC amended its disclosure requirements to ease reporting burdens for most public companies. While no individual change is particularly noteworthy, the aggregate impact of the changes should generally simplify the reporting process. A few changes will require modest additional disclosures. The most significant changes are:

• Confidential treatment requests – Very helpfully, the SEC is dispensing with the need to obtain the staff’s prior approval of a confidential treatment request before redacting information from certain exhibits when the information is not material and its disclosure would likely cause competitive harm.…

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This past Boxing Day, the SEC delivered another reminder that it remains intensely focused on public companies’ disclosure of non-GAAP financial measures.  In an agreed cease-and-desist order released on December 26, 2018, ADT Inc. (ADT) agreed to pay a $100,000 fine to settle an accusation that it failed to comply with Item 10(e) of Regulation S-K.  Item 10(e) requires, among other things, that any disclosure of a non-GAAP financial measure in an SEC filing must be accompanied by disclosure of the most directly comparable GAAP financial measure with equal or greater prominence. … More

The Securities and Exchange Commission has finally adopted new rules that will require public companies to include in proxy statements for their annual meetings a description of their hedging policies and practices applicable to employees and directors.  These rules were called for by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010  but weren’t proposed until February 2015. The new rules will apply to proxy and information statements with respect to the election of directors during fiscal years beginning on or after July 1,… More

The SEC recently reminded public companies that they have an affirmative obligation to prevent cyber-theft and that failing to do so could mean that their internal controls are ineffective, a violation of the Securities Exchange Act of 1934.

In an October 16, 2018 investigative report describing recent cyber-related frauds against nine public companies, the SEC noted that public companies must maintain a system of internal accounting controls sufficient to provide reasonable assurance that “access to assets is permitted only in accordance with management’s general or specific authorization.” In each of the nine cases,… More

Yesterday the SEC staff issued CD&I 105.09, which clarifies the date by which issuers must comply with the new requirement to present changes in stockholders’ equity in their interim financial statements.  Initially, there was concern that the requirement would be effective shortly before many companies would ordinarily file their Forms 10-Q for the quarter ending on September 30.  The new CD&I clarifies that the staff will not object if issuers comply with the new requirement for the first quarter that begins after the effective date of the new rule,… More

Companies that will qualify as “smaller reporting companies” for the first time under the SEC’s recently revised definition should consider whether to take advantage of the simplified reporting requirements that will become available to them on September 10, the effective date of the new rule. For example, a calendar-year issuer that qualified as a smaller reporting company as of June 29, 2018 (the last business day of its second fiscal quarter) can comply with the smaller reporting company disclosure requirements in its Form 10-Q for the third quarter of 2018. … More

On August 7, 2018, the SEC brought a settled cease-and-desist proceeding against Ribbon Communications Inc., the successor to Sonus Networks, Inc., and two of its executives for issuing quarterly guidance that was not reasonably based on the available facts.

In October 2014, Sonus announced that it expected to generate $74 million of revenue in the first quarter of 2015. Sonus reaffirmed this guidance on January 8,… More

On July 2, 2018, the SEC brought a settled cease-and-desist proceeding against The Dow Chemical Company for failing to disclose approximately $3 million in executive perquisites, including personal use of company aircraft, in its proxy statements over five years.  The SEC concluded that Dow failed to adequately train key employees to ensure that the proper standard for perquisite disclosures was being applied and that Dow had inadequate processes and procedures to ensure proper reporting of perquisites.… More

On June 28, 2018, the SEC adopted amendments to its eXtensible Business Reporting Language, or XBRL, rules to require operating companies to use Inline XBRL format for financial statement information included in periodic and current reports and certain registration statements. The amendments also eliminate the requirement that companies post their financial statements in XBRL format on their websites.

To submit financial statements in Inline XBRL format,… More

  Yesterday, the Securities and Exchange Commission approved changes to the definition of a “smaller reporting company,” or SRC, that will significantly increase the availability of the less burdensome, scaled disclosure requirements applicable to companies qualifying as SRCs .  The amendments increase the public float threshold for qualification as an SRC from less than $75 million to less than $250 million, in each case regardless of the company’s revenues.  In addition,… More

In a series of recent public statements (most recently in February 2018), the SEC has encouraged companies to pursue relief under Rule 3-13 of Regulation S-X—the regulation that specifies the form and content of financial statements required by public companies. Pursuant to Rule 3-13, the SEC Staff may permit the omission of financial statements that are otherwise required under Reg S-X or the substitution of such required financial statements with other statements of comparable character.… More

This week the SEC staff expanded relief for the disclosure of non-GAAP financial forecasts used in business combinations.

In these transactions, public companies routinely obtain fairness opinions from an investment bank regarding the value of the consideration to be paid to shareholders, and the fairness opinions normally rely on financial projections provided by the company.  These projections are often prepared in a way that varies from GAAP and,… More

Effective September 1, 2017, public companies will be required to include hyperlinks to each exhibit listed in the exhibit index to a registration statement or report. Exhibits filed in eXtensible Business Reporting Language (XBRL) or exhibits filed with Form ABS-EE are excluded from this requirement. This requirement will make all exhibits to a filing, including those incorporated by reference from earlier filings, more easily accessible to investors. Companies should plan for additional review time,… More

The JOBs Act was signed into law on April 5, 2012 and created Emerging Growth Companies, or EGCs, which are eligible to comply with reduced disclosure and other requirements under the federal securities laws.

The definition of an EGC, which in general is a company with annual gross revenues of less than $1 billion during its most recent fiscal year, is expansive.   Over 80% of IPOs since the JOBs Act have been completed by EGCs. … More

The Staff has confirmed that the (often forgotten) requirement that public companies mail seven copies of their glossy annual report to the SEC may be satisfied by posting an electronic version of the report on the company’s corporate website.  The report must remain accessible for at least one year after posting.

Public companies are already required to post proxy materials, which include proxy statements on Schedule 14A,… More

Decisions, decisions.

Instead of requiring an annual “say on pay” vote, rules implemented pursuant to the Dodd‑Frank Act require that an advisory vote on executive compensation occur at least once every three years.  To further complicate matters, at least once every six years stockholders must also be given an opportunity to vote separately on whether the “say on pay” vote should occur every year, every other year or every three years.… More

The SEC routinely advises companies drafting risk factors to start from a blank sheet of paper and avoid boilerplate.  As with many best practices, this recommendation is often aspirational.

Most companies do, however, take care in reviewing last year’s risk factors to make any necessary updates and additions.  As public companies prepare their annual reports on Form 10-K for fiscal 2016, they should consider the blank sheet of paper and think carefully about how their business risks are likely to change in 2017 as a result of the new political environment.… More

Public companies listed on NASDAQ are now required to disclose annually certain payments (if any) made by third parties to their directors or director nominees.

D&O questionnaires related to the annual meeting of stockholders should include a question to determine whether there are any agreements, arrangements or understandings between a director or director nominee and any person (other than the company) relating to compensation or other payments (including non-cash payments) in connection with the director’s or director nominee’s service or candidacy as a director.… More