News 24 Jun. 2021
Curtis successfully defends foreign states' procedural privileges in the UK Supreme Court
News 23 Jun. 2021
Ibrahim Elsadig joins Curtis as Partner in Dubai
Client Alert 24 Feb. 2022
EU, UK, Japan and Australia Impose Sanctions on Russia
News 09 Aug. 2021
Curtis, Mallet-Prevost, Colt & Mosle enters into association with Chevalier Law in Singapore.
Publications 26 May. 2022
Marc Hammerson Co-Authors Chapter on Oil & Gas Decommissioning in "Oil and Gas Contracts: Principles and Practice"
Client Alert 23 May. 2022
U.S. President Biden Issues Seventh Tranche of Economic Sanctions
Event 24 May. 2022
Claudia Frutos-Peterson to Moderate Panel at Latin Lawyer and GAR Live: Arbitration Summit 2022
Event 26 Apr. 2022
Claudia Frutos-Peterson Speaks at CAI Costa Rica’s 13th Congress of International Arbitration
Event 23 May. 2022
Marco Blanco & Olga Beloded Taught 3-Day LLM Course on International Taxation, Hosted by the DIFC and University of Paris II - Assas
Partner Antonia Birt to Speak at Equal Representation in Arbitration Event Entitled "Diversity and Inclusion, Arbitral Institutions, and Users"
News 24 May. 2022
Curtis Sponsors New ASIL Prize for Best Article in International Dispute Resolution
Client Alert 21 Apr. 2022
New Laws Targeting Assets of Russian Oligarchs: The U.S. Announces Task Force KleptoCapture and the Kleptocracy Asset Recovery Rewards Program
Client Alert 24 Jun. 2021
Update on Virtual Notarization (Executive Order 202.7) During the COVID-19 (Coronavirus) Pandemic (Updated: June 24, 2021) — U.S. Insight
Update on Virtual Witnessing (New York Executive Order 202.14) During The COVID-19 (Coronavirus) Pandemic (Updated: June 24, 2021) — U.S. Insight
Publications July 21, 2017
The Division of Corporation Finance of the U.S. Securities and Exchange Commission (“SEC”) has expanded the availability of confidential review of draft registration statements effective July 10, 2017. The new policy seeks to foster capital formation by providing a mechanism to support new issuers’ preparation of their registration statements and flexibility in planning their offerings.
The new policy does not impact the ability of emerging growth companies (“EGCs”) to obtain confidential review of their draft registration statements under existing procedures adopted in 2011 pursuant to the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”). Confidential review will also continue to be available to certain foreign private issuers (“FPIs”), according to SEC policy in place since 2011 (and updated in 2012). An FPI will be able to seek review in accordance with the new policy, or in accordance with the existing policy covering EGCs in the event that the FPI is an EGC or the existing 2012 policy for FPIs.
Under the new policy, the SEC will confidentially review an issuer’s initial draft registration statement and related revisions for its initial public offering (“IPO”) under the Securities Act of 1933 (the “Securities Act”). The issuer must confirm in the cover letter accompanying the draft that it will, and must, publicly file its registration statement and all confidentially submitted drafts at least 15 days prior to any road show or, in the event that there will not be a road show, at least 15 days prior to the requested effective date of the registration statement.
Similarly, the SEC will confidentially review an issuer’s initial draft registration statement and related revisions for its initial registration of a class of securities under Section 12(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) (which is required to list securities on a national securities exchange). In this case, the issuer must confirm in its cover letter that it will, and must, publicly file its registration statement and all confidentially submitted drafts at least 15 days prior to the anticipated effective date of the registration statement.
The SEC will also confidentially review initial drafts of an issuer’s registration statements for follow-on offerings and securities exchange listings submitted prior to the end of the twelfth month following the effective date of the issuer’s Securities Act IPO registration statement or Exchange Act Section 12(b) registration statement. In these cases, the issuer must confirm in its cover letter that it will, and must, publicly file the registration statement and the confidentially submitted draft in time for it to be publicly available at least 48 hours prior to the requested effective date and time. Unlike the case for initial registration statements, the SEC will confidentially review only a single draft of a follow-on registration statement. Responses to the SEC’s comments on the initial confidential draft must be reflected in a public filing.
Draft registration statements submitted for confidential review should be substantially complete. However, the SEC has stated that it will not delay processing in cases where an issuer reasonably believes that omitted financial information will not be required at the time the registration statement is publicly filed.
Form ID, the form submitted by new issuers to apply for EDGAR access codes, contains a section for EGCs and FPIs to indicate that they will use the codes to submit draft registration statements and the basis of their submission. The SEC has indicated that until the SEC updates Form ID, a new issuer should indicate on Form ID that it intends to use its EDGAR access codes to submit a draft registration statement pursuant to Section 106 of the JOBS Act. The issuer should do this even if it is not an EGC.
Confidential submission of a registration statement to the SEC does not by itself protect the registration statement from disclosure under the Freedom of Information Act (“FOIA”), even if the filer were to determine not to proceed with a public filing of the registration statement. The SEC has indicated that it will keep submitted nonpublic draft registration statements confidential subject to the provisions of applicable law, and has noted that Exemption 4 of FOIA provides for an exemption for “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Issuers seeking such protection must comply with SEC Rule 83. Pursuant to Rule 83, issuers may request that information be withheld when requested under FOIA. Under Rule 83, a submitter must mark each page with “Confidential Treatment Requested by [Issuer Name]” and an identifying number and code. The words “FOIA Confidential
Treatment Request” must appear on the top of the first page of the request, and the submitter must provide contact information.
Valarie A. Hing