On March 3, 2025, the Staff of the Division of Corporation Finance of the Securities and Exchange Commission (the “SEC”) announced a new policy, with immediate effect, expanding the accommodations available for issuers that submit draft registration statements for confidential review. The new enhanced accommodations:
- expand the availability of the SEC’s confidential review process for the initial registration of a class of securities under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to include both Section 12(b) and Section 12(g) registration statements on Forms 10, 20-F, or 40-F;
- permit issuers to submit draft registration statements regardless of how much time has passed since the issuers became subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act;
- expand the availability of the confidential review process for a de-SPAC transaction in situations where the SPAC is the surviving entity (i.e., SPAC-on-top structure) as long as the target is eligible to submit a draft registration statement; and
- permit issuers to omit the name of the underwriter(s) from their initial draft registration statement submissions, when otherwise required by Items 501 and 508 of Regulation S-K, provided that they include the name of the underwriter(s) in subsequent submissions and public filings.
While the new Staff policy is helpful and, we believe, a step in the right direction, the accommodations raise a number of practical and legal considerations and questions that we highlight in this Legal Update.