Those lucky individuals who are responsible for EDGAR codes (for companies and Section 16 filers) are strongly encouraged to confirm this week that those EDGAR codes, specifically the CCCs (CIK Confirmation Codes) and Passphrases, are both (1) valid AND (2) current. EDGAR codes are valid if they are correct and are current if they have been established or reset since September 2019. Valid and current CCCs and Passphrases will be required to enroll in EDGAR Next via the EDGAR Next dashboard, and after Friday, March 21, the process for obtaining valid and current codes will be more tedious.
Early Insights from the Insider Trading Policies Filed by S&P 500 Companies under the SEC’s New Exhibit Requirement
I. Introduction
For fiscal years beginning on or after April 1, 2023, domestic public companies are required to disclose whether they have adopted insider trading policies and procedures governing the purchase, sale, and/or other dispositions of their securities by their directors, officers and employees, or the companies themselves, and if so to file those policies and procedures as an exhibit to their annual reports on Form 10-K.[1] While calendar year companies must comply with these requirements in their Form 10-K for, or proxy statement following, the fiscal year ending December 31, 2024, 49 S&P 500 companies had addressed these requirements in filings as of June 30, 2024.[2]
Division of Corporation Finance Issues Interpretive Guidance on the SEC’s Cybersecurity Incident Reporting Requirements
As discussed in our previous client alert, on December 18, 2023, new rules went into effect requiring companies to report material cybersecurity incidents on Form 8-K within four business days of the company’s determination that the cybersecurity incident is material. In the last several weeks the staff of the Division of Corporation Finance (the “Staff") of the Securities and Exchange Commission (the “SEC") has provided guidance regarding incident reporting in the form of a May 21 statement and a June 20 announcement from the Division of Corporation Finance Director Erik Gerding and, most recently, more formal Compliance and Disclosure Interpretations (“C&DIs") on June 24.
Fifth Circut Strikes Down SEC’s New Buyback Disclosure Rule
On December 19, 2023, the Fifth Circuit vacated the SEC’s Share Repurchase Disclosure Modernization rule (the “Repurchase Rule") in its entirety. The Repurchase Rule, discussed further in our Client Alert, would have required companies to disclose objectives or rationales and certain additional information for all share repurchases conducted during the quarter on Form 10-Q and Form 10-K and required quarterly disclosure regarding a company’s adoption or termination of any Rule 10b5-1 trading plans.
SEC Stays Effectiveness of New Buyback Disclosure Rule; Fifth Circuit Denies SEC’s Request for Additional Time to Correct Rules
On November 22, 2023, the SEC announced that it had issued an order indefinitely postponing the effectiveness of the Share Repurchase Disclosure Modernization rule (the “Repurchase Rule"), pending further SEC action. At the same time, the SEC asked the Fifth Circuit for additional time to respond to the court’s order that the SEC correct deficiencies in the Repurchase Rule by November 30. The court denied that motion on November 26. As a result, the SEC has until November 30 to correct the deficiencies the court had found with the SEC’s rulemaking, after which we expect the court will consider a renewed motion from the petitioners to vacate the Repurchase Rule.
Division of Corporation Finance Offers New Guidance on Application of the SEC’s Universal Proxy Rules Ahead of the 2024 Proxy Season
As discussed in our previous client alert, the universal proxy rules that went effective on August 31, 2022 require proxy cards distributed by both public companies and nominating shareholders in contested director elections to include both sides’ director nominees, such that shareholders casting their vote can “mix-and-match" nominees from each of the company’s and the dissident’s slate of director nominees.
SEC Rolls Out Enforcement Sweep Against Delinquent Filers Ahead of Recent 13D/G Amendments
Late last month, shortly before adopting amendments to Regulation 13D/G, the Securities and Exchange Commission (“SEC") announced civil charges against several officers, directors, and major shareholders of public companies for failing to satisfy their timely reporting obligations. The SEC also charged the affiliated public companies for contributing to the reporting failures by insiders.
EDGAR Next: SEC Proposes Changes to EDGAR Filer Access and Account Management Procedures
Following a request for comment on the topic in 2021, on September 13, 2023, the Securities and Exchange Commission (“SEC") proposed amendments to Rules 10 and 11 of Regulation S-T and Form ID regarding potential technical changes to Electronic Data Gathering, Analysis, and Retrieval System (“EDGAR") filer access and account management (referred to by the SEC as “EDGAR Next").
Another Batch of SEC Staff Guidance on Rule 10b5-1 Amendments
On August 25, 2023, the staff of the Division of Corporation Finance (the “Staff") of the Securities and Exchange Commission (the “SEC") issued five new Compliance and Disclosure Interpretations (“C&DIs") regarding the SEC’s recent Exchange Act Rule 10b5-1 amendments. The new C&DIs address how to calculate the required cooling-off period; how 401(k) plans interact with the Rule 10b5-1 affirmative defense in certain circumstances; when the Rule 10b5-1 check box on Form 4 applies; and when disclosure of plan adoption and termination is required.
Form 10-Q Updates and Reminders
As many companies prepare their quarterly reports on Form 10-Q for the quarter ended June 30, 2023, we offer the following observations and reminders regarding new disclosure requirements taking effect for this reporting period, as well as risk factor considerations that may be relevant to upcoming Form 10-Q reporting. For convenience, this publication also includes a summary of certain upcoming compliance dates for public companies.
SEC Enforcement Action Highlights Importance of Non-GAAP Policies and Disclosure Controls and Procedures
On March 14, 2023, the SEC charged DXC Technology Co. (“DXC") with making material misstatements with respect to its non-GAAP financial performance measures, stating that, DXC “negligently misclassif[ied] tens of millions of dollars of expenses as [transaction, separation and integration-related (“TSI")] costs and improperly exclude[ed] them in its reporting of non-GAAP measures." The SEC’s order also found that DXC, and specifically its controllership function and disclosure committee, failed to maintain “adequate" disclosure controls and procedures relating to DXC’s non-GAAP disclosures, citing the following shortcomings:
SEC Updates Non-GAAP C&DIs
On December 13, 2022, the staff of the Division of Corporation Finance (the “Staff”) of the Securities and Exchange Commission announced an update to its Compliance and Disclosure Interpretations (“C&DIs”) on Non-GAAP Financial Measures under Questions 100.01, 100.04 – 100.06, and 102.10(a)(b)(c). Many of the changes memorialize positions the Staff has taken in comment letters or provide additional detail about those positions.
Division of Corporation Finance Issues Interpretive Guidance on the SEC’s Universal Proxy Rules
On August 31, 2022, the universal proxy rules adopted late last year by the Securities and Exchange Commission (the “SEC") will become effective. As discussed in our previous client alert, the rules require proxy cards distributed by both public companies and nominating shareholders in contested director elections to include both sides’ director nominees, such that shareholders casting their vote can “mix-and-match" nominees from each of the company’s and the dissident’s slate of director nominees.
Now Available: Considerations for Preparing Your 2021 Form 10-K
As we do each year, we offer our observations on new developments and recommended practices for calendar-year filers to consider in preparing their Form 10-K. This alert reviews the recent amendments to Regulation S-K adopted by the U.S. Securities and Exchange Commission (“SEC”) and discusses how public companies are reacting to these new requirements.
SEC Staff Scrutiny of Climate Change Disclosures Has Arrived: What to Expect And How to Respond
Recently, the SEC’s Division of Corporation Finance has issued a number of comment letters relating exclusively to climate-change disclosure issues. The letters we have seen to date comment on companies’ most recent Form 10-K filings, including those of calendar year companies who filed their Form 10-K more than 6 months ago, and have been issued by a variety of the Division’s industry review groups, including to companies that are not in particularly carbon-intensive industries. Many of the climate change comments appear to be drawn from the topics and considerations raised in the SEC’s 2010 guidance on climate change disclosure, as reflected in the sample comments that we have attached in the annex to this alert. We expect this is part of a larger Division initiative because the letters are similar (although not identical), contain relatively generic comments, and have been issued in close proximity to one another. Accordingly, it is reasonable to expect that additional comment letters will be issued in the coming weeks and months.
Now Available: Considerations for Preparing Your 2020 Form 10-K
As we do each year, we offer our observations on new developments and recommended practices for calendar-year filers to consider in preparing their annaul report on Form 10-K. In addition to the many challenges of the past year, the SEC adopted and provided guidance on a number of changes to public company reporting obligations impacting disclosures in the 10-K for 2020. In particular, we discuss the recent amendments to Regulation S-K, disclosure considerations in light of COVID-19, a number of technical considerations that may impact your Form 10-K, and other considerations in light of recent and pending changes in the executive branch and at the SEC. The full memo is available at the following link:
Summary Chart and Comparative Blackline Reflecting Recent Amendments to MD&A Requirements Now Available
On November 19, 2020, the SEC announced that it had adopted amendments to Item 301 (“Selected Financial Data"), Item 302 (“Supplementary Financial Information") and Item 303 (“Management’s Discussion and Analysis of Financial Condition and Results of Operations") of Regulation S-K. This article provides (1) a high level summary of the amendments, effective dates and Commissioners’ views, (2) a detailed description of the amendments in tabular format, and (3) a blackline comparison of the changes to Item 302(a) and Item 303 of Reg S-K.
Regulation S-K Amendments to Items 101, 103, and 105 to go Effective November 9, 2020
The amendments to Items 101, 103, and 105 of Regulation S-K that were adopted by the SEC on August 26, 2020 (discussed in our previous client alert, available here) were published in the Federal Register today, October 8, 2020. As a result, the amendments will go into effect on Monday November 9, 2020 (the first business day following 30 days after publication in the Federal Register). November 9 is also the last day for calendar companies that are large accelerated filers or accelerated filers to file the Q3 10-Q.
SEC Provides New Option for Extending Confidential Treatment
The SEC just made it a little easier to maintain the confidentiality of sensitive information that is the subject of a soon-to-expire confidential treatment order. As discussed below, under the SEC’s latest guidance a company can now use the simplified confidential treatment process available for new exhibits when seeking to extend confidential treatment of previously filed exhibits.
SEC Expands the Definitions of “Accredited Investor” and “Qualified Institutional Buyer”
Of particular interest as private capital markets activity continues to grow, the “accredited investor" definition is one of the principal tests for determining who is eligible to participate in investment opportunities presented by the private capital markets. On August 26, 2020, the SEC announced that it adopted amendments to the definitions of “accredited investor" in Rule 501, as well as the definition of “qualified institutional buyer" in Rule 144A, each under the Securities Act of 1933. These amendments are part of the SEC’s ongoing efforts to simplify, harmonize and improve the framework for securities offerings that are not registered with the SEC under the Securities Act (for more information on this initiative, see our prior Monitor post here).
SEC To Consider Adopting Changes to Regulation S-K and Definitions of Qualified Investors in Private Placements: Public Meeting on August 26
What are you doing at lunchtime on August 26? The SEC has announced that it will hold a webcast public meeting to discuss its broader efforts to (1) modernize and improve the SEC’s disclosure framework in light of the changes in our capital markets and domestic and global economy, and (2) simplify, harmonize, and improve the exempt offering framework under the Securities Act to promote capital formation and expand investment opportunities while maintaining and enhancing appropriate investor protections.
SEC Staff provides additional disclosure guidance related to COVID-19 impact
Due to the ongoing assessment of the impact of COVID-19 on companies’ operations, liquidity and capital resources and overall economic and market conditions, companies should take special care in preparing for their quarterly reporting. To aid in this effort, the staff (the “Staff") of the Securities and Exchange Commission (“SEC") has posted a new set of questions that companies should consider in evaluating whether certain disclosures should be included in their earnings release and, in light of its potential materiality, in the management discussion and analysis (“MD&A") included in the periodic reports (e.g., the Form 10-Q for second quarter 2020).
EDGAR Updates Change Filer Password Requirements and Increase Character Length of Certain Cover Page Tags
SEC Staff Announces Significant Changes to Shareholder Proposal No-Action Letter Process
On September 6, 2019, the Division of Corporation Finance (the “Staff") of the Securities and Exchange Commission (“SEC") announced[1] two significant procedural changes for responding to Exchange Act Rule 14a-8 no-action requests that will be applicable beginning with the 2019-2020 shareholder proposal season:
SEC Issues Interpretations Clarifying Inline XBRL Rules
On August 20, 2019, the Division of Corporation Finance (the “Staff") of the Securities and Exchange Commission (“SEC") issued nine new Compliance and Disclosure Interpretations (“C&DIs") regarding Interactive Data (available here), addressing many of the technical compliance issues surrounding the Inline XBRL rules, particularly with respect to common questions related to the exhibit index and cover page tagging. The C&DIs also address compliance by early or voluntary filers and foreign private issuers. The Inline XBRL rules went into effect for calendar year-end large accelerated filers when filing their second quarter Form 10-Q.
SEC August 21 Open Meeting To Address Issues Related To Proxy Advisory Firms
The SEC announced that it will hold an open meeting on Wednesday, August 21, 2019 at 10:00 AM eastern time. There are two matters on the agenda, available here, which, although not specifically referring to proxy advisory firms, appear to address reliance on voting recommendations issued by such firms, and the conditions such firms must satisfy to rely on an exemption from the proxy rules.
SEC Proposes to Modernize Disclosures of Business, Legal Proceedings, and Risk Factors
On August 8, 2019, the Securities and Exchange Commission (“SEC") announced that it voted to propose amendments to Regulation S-K (available here) seeking to modernize and simplify the required disclosures by public companies, investment advisors, and investment companies (the “Proposed Amendments"). The Proposed Amendments form part of the SEC’s ongoing efforts to simplify disclosure requirements, and, with the exception of Legal Proceedings, emphasize a more flexible, principles-based approach as opposed to prescriptive requirements. “The world economy and our markets have changed dramatically in the more than 30 years since the adoption of our rules for business disclosures by public companies. Today’s proposal reflects these significant changes, as well as the reality that there will be changes in the future," said Chairman Jay Clayton. “I applaud the staff for their efforts to modernize and improve our disclosure framework, including recognizing that intangible assets, and in particular human capital, often are a significantly more important driver of value in today’s global economy. The proposals reflect a thoughtful mix of prescriptive and principles-based requirements that should result in improved disclosures and the elimination of unnecessary costs and burdens."
Technical Points to Keep in Mind When Filing Upcoming Forms 10-K, 10-Q, and 8-K
As we discussed in a prior client alert (available here), in March 2019, the Securities and Exchange Commission (the “SEC") adopted a number of changes to modernize and simplify disclosure requirements (the “Final Rules"). While many of these changes went into effect on May 2, 2019, the SEC adopted phased compliance dates for the requirements to tag data on the cover pages of Forms 10-K, 10-Q, 8-K, 20‑F, and 40-F in Inline XBRL. The Final Rules set forth the following compliance dates (which mirror the compliance dates for operating companies to implement the general Inline XBRL requirements):
Reporting Companies Are Strongly Encouraged to Review SEC Statement On LIBOR Transition
On July 12, 2019, the Division of Corporation Finance, Division of Investment Management, Division of Trading and Markets, and Office of the Chief Accountant of the Securities and Exchange Commission (the “Staff") issued a joint statement (the “Statement") (available here) regarding the expected discontinuation of LIBOR and transition to alternative reference rates. The Statement reminds readers that the discontinuation of LIBOR could have a significant impact on financial markets and may present a material risk for market participants, including public companies, investment advisers, investment companies, and broker-dealers. The Statement encourages market participants to proactively manage their transition away from LIBOR and outlines several areas that may warrant increased attention. As noted by the Staff, “[f]or many market participants, waiting until all open questions have been answered to begin this important work likely could prove to be too late to accomplish the challenging task required." We encourage anyone who may be impacted by the LIBOR transition to review the Statement, which outlines ways market participants can think through potential transition risks and provides helpful guidance on related disclosure obligations and risk management efforts.
SEC to Host Roundtable on Short-Termism on July 18
The Securities and Exchange Commission has announced (available here) that it will hold a roundtable on July 18, 2019, to hear from investors, issuers and other market participants about short-termism’s impact on capital markets and whether the reporting system or other SEC regulations should be changed to address those concerns. The event will begin at 12:30 p.m. ET in the SEC’s headquarters and be open to the public in person and via live webcast on SEC.gov, as well as archived for later viewing. The agenda and access information are available here. The roundtable is related to a request for comment that the SEC published in December 2018, when the SEC announced it may be reconsidering quarterly reporting (our post about that SEC request for comment on quarterly reporting is available here).
SEC Tweaks Revised Form 8-K and 10-Q Cover Pages
As a result of amendments adopted by the Securities and Exchange Commission (SEC) on March 20, 2019 (available here, and discussed in our client alert available here), several SEC form cover pages were changed, effective May 2, 2019, including: Form 10-K, Form 10-Q, Form 8-K, Form 20-F, and Form 40-F.
SEC Proposes to Improve Disclosures Relating to Acquisitions and Dispositions of Businesses
On May 3, 2019, the Securities and Exchange Commission announced (available here) proposed changes to existing disclosure requirements in connection with acquisitions and dispositions of businesses. The proposed rules (available here) are intended to: (1) improve financial disclosures regarding the acquisition and disposition of businesses, (2) facilitate more timely access to capital, and (3) reduce the complexity and compliance costs related to such disclosures.
SEC Issues Guidance Relating to New Rules and Procedures for Redacting Confidential Information
On April 1, 2019, the Division of Corporation Finance (the “Division”) of the Securities and Exchange Commission (the “SEC”) issued guidance relating to the recently adopted rules and procedures that permit registrants to redact confidential information from certain exhibits without filing a confidential treatment request (available here). The guidance provides additional information on the Division’s process for reviewing redacted information and certain matters relating to the transition to the new rules and procedures.
SEC Continues to Modernize and Simplify Disclosure Requirements
On March 20, 2019, the Securities and Exchange Commission (SEC) adopted amendments (available here) to modernize and simplify disclosure requirements for public companies, investment advisors, and investment companies (the Final Rules). The Final Rules form part of the SEC’s ongoing efforts to simplify disclosure requirements. The Final Rules are largely consistent with the proposed amendments outlined in the SEC’s October 11, 2017 proposing release (available here, and discussed in our client alert available here).
Changes and Considerations for the 2018 Form 10-K
Below are select developments to keep in mind when preparing the Annual Report on Form 10-K this year. Registrants will need to update their disclosure in the upcoming 2018 Form 10-K as a result of recent rulemaking by the Securities and Exchange Commission (the "SEC") and new SEC guidance and accounting rule changes, as well as to reflect new and developing risk areas that the SEC or investors have identified.
SEC to Reconsider Quarterly Reporting, Solicits Public Comment
On December 18, 2018, the Securities and Exchange Commission published a request for comment on earnings releases and quarterly reports, available here. The request was issued the day before, and in place of, the SEC’s previously scheduled open meeting to consider whether to issue such a request, as discussed here.
SEC Division of Corporation Finance Provides Interpretive Relief on New Disclosure Requirement
On September 25, 2018, the Division of Corporation Finance of the Securities and Exchange Commission (the “Staff") issued a new Compliance and Disclosure Interpretation (“C&DI") providing transition guidance and relief on reporting requirements under the disclosure update and simplification rules adopted on August 17th, 2018 (the “Final Rules"). As discussed in our recent post (available here), the Final Rules become effective 30 days from publication in the Federal Register, but do not indicate whether the amendments should be applied to periodic reports covering periods ending on or after the effective date or to all periodic reports filed after the effective date. ( As of the date of this posting, the Final Rules have still not been published in the Federal Register.) The timing is significant because the Final Rules require companies’ quarterly reports on Form 10-Q to include a new statement of changes in stockholders’ equity and to disclose the amount of dividends per share for each class of shares with respect to the interim period.
Important Reminders for Upcoming 10-Q Filings
As calendar year filers begin preparing their Forms 10-Q for the third quarter, there are a few items they should keep in mind.
Potential Impact of SEC’s New Disclosure Update and Simplification Release
SEC Streamlines Disclosure Requirements as Part of its Overall Disclosure Effectiveness Review
On August 17, 2018, the Securities and Exchange Commission (the “Commission") adopted several dozen amendments (available here) to “simplify compliance without significantly altering the total mix of information" (the “Final Rules"). In Release No. 33-10532, the Commission characterized the amended requirements as redundant, duplicative, overlapping, outdated or superseded, in light of subsequent changes to Commission disclosure requirements, U.S. GAAP, IFRS and technology developments.
SEC Modifies XBRL Filing Requirements
On June 28, 2018, the Securities and Exchange Commission (the “SEC") adopted a final rule, Inline XBRL Filing of Tagged Data, which substantially alters requirements related to the use of the eXentsible Business Reporting Language (“XBRL") format in operating companies’ financial statement information and funds’[1] risk/return summary information. The rule was published in the Federal Register on August 16, 2018, available here, and will be effective on September 17, 2018.