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SEC Staff Limits Non-Public Submission Policy

January 2012

In connection with its ongoing efforts to promote transparency and investor protection, the Staff of the U.S. Securities and Exchange Commission (SEC) recently issued a statement revising its policy regarding the non-public submission of registration statements pursuant to the Securities Act of 1933 and the Securities Exchange Act of 1934. Specifically, the revised policy focuses on the non-public submission by foreign private issuers (FPIs) and foreign governments (FGs) of their initial registration statements.

Registration statements for first-time public offerings and U.S. listings of securities issued by FPIs and FGs have historically been afforded atypical submission treatment, namely non-public (or confidential) submission. The policy permitting the non-public submission of initial registration statements by FPIs and FGs is an outgrowth of the SEC Staff's recognition of the unique circumstances faced by FPIs and FGs when accessing the U.S. capital markets for the first time.

Traditionally, the SEC Staff has enabled FPIs and FGs to submit their registration statements on a non-public basis in connection with their initial SEC registration. This practice permitted the SEC Staff to review and comment on disclosure, and, in turn, allowed the issuer to respond to SEC Staff comments, all prior to the filing being made public. The SEC Staff's allowance of non-public submissions was premised on the fact that (i) the majority of FPIs registering securities had securities trading on securities exchanges outside the U.S., and (ii) such markets typically did not require public disclosure of the registration statement prior to completion of the review process. Based upon its review of recent registrations, the SEC Staff concluded that most FPIs availing themselves of the SEC Staff's non-public submission treatment were not, in fact, contemplating a non-U.S. listing of their securities.

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