The SEC's Division of Corporation Finance announced today its plans to review companies' compliance with the provisions of the new FAST Act-triggered Reg. S-K Modernization and Simplification rule that allow redaction of immaterial, competitively harmful information from filed material contracts without applying for confidential treatment. As reported last week, these particular provisions will become effective upon publication of the final rule in the Federal Register.
In connection with a general compliance review, Corp Fin will request companies provide paper copies of unredacted exhibits marked to highlight the redacted information, and may seek substantiation of immateriality or competitive harm decisions. Registration statement acceleration requests will be addressed only after any questions relating to redacted exhibits are resolved. In all cases, EDGAR will only reflect the opening and closing of the review to avoid any inadvertent public disclosure of competitively harmful information.
Companies may request Rule 83 confidential treatment for supplemental materials provided to Corp Fin in connection with the compliance review. Alternatively, companies may still request confidential treatment under Rule 406 or Rule 24b-2, or they may withdraw pending Rule 406 or Rule 24b-2 confidentiality requests in reliance on the new rules via an amended filing that comports with the rule.
Transition questions reportedly should be directed to RedactedExhibits@sec.gov with your name, phone number and brief summary of your question in the email.
The new rule's treatment of redactions - specifically, allowing companies to redact their filings without seeking Staff review and without providing their intended redacted materials to Staff - was one of the two bases for SEC Commissioner Jackson's dissent vote.
See also MoFo's "FAQs on Confidential Treatment Requests," and additional information & resources on our Disclosure Reform page.