SEC PROPOSES TO INCREASE FORM 13F REPORTING THRESHOLD

Proposed Amendments to Form 13F Would Increase the Reporting Threshold from $100 Million to $3.5 Billion, Among Other Changes

On July 10, 2020, the U.S. Securities and Exchange Commission (SEC) issued a proposed rule (the “Proposal”) that would raise the Form 13F reporting threshold for investment managers (including non-U.S. investment managers^[1] and investment advisers^[2]) to $3.5 billion in Section 13(f) securities, up from the $100 million threshold that has been in effect since the Form 13F filing obligations were adopted in 1978.^[3]

The SEC estimates that the increased threshold would eliminate Form 13F filing requirements for approximately 90% of managers, while retaining disclosure for over 90% of the dollar value of the holdings data currently reported.^[4] The increased threshold is designed to reflect proportionally the increase in the market value of publicly traded U.S. equities since 1975.

The Proposal would also eliminate the omission threshold that currently permits managers to exclude certain small holdings and amend the instructions for requesting confidential treatment. The Proposal would also direct SEC Staff to review the Form 13F reporting threshold every five years and recommend an appropriate adjustment, if any, to the SEC.

The Proposal is subject to a 60-day public comment period.

History and Purpose of the 13F Reporting Program

Background

Form 13F was adopted by the SEC in 1978, pursuant to Section 13(f) of the U.S. Securities Exchange Act of 1934 (the “Exchange Act”). Section 13(f) was added to the Exchange Act as part of the Securities Act Amendments of 1975 (the “1975 Amendments”), following a study the SEC commissioned at the direction of Congress that found that there were certain “gaps in information about the purchase, sale and holdings of securities by major classes of institutional investors.”^[5]

Section 13(f) gives the SEC broad rulemaking authority to determine the size of the institutions required to file reports, the format and frequency of the report requirements and the information to be disclosed.

Goals of the 13(f) Disclosure Program

The Proposal notes that in adopting the 1975 Amendments, Congress was concerned that the increase in concentration of institutional ownership, coupled with lack of trading data available to the regulators and the market, hampered the SEC’s ability to maintain fair and orderly markets.

The Proposal also notes that the Section 13(f) disclosure program had three primary goals: (i) to create a central data repository for the investment activities of institutional investment managers; (ii) to better understand both the influence of institutional investment managers on securities markets and the public policy implications of that influence; and (iii) to increase investor confidence in the integrity of the U.S. securities markets.

The Proposal further notes that, in 1975, approximately 300 managers were subject to the 13F reporting requirement by virtue of the $100 million threshold. Today, over 5,000 managers exceed the $100 million threshold and are subject to the reporting requirement.^[6]

SEC Consideration of Use of Form 13F Data

The SEC acknowledges that the Proposal would, relative to current reporting, limit the data available to the market, noting that Form 13F data is currently used for a wide variety of purposes. While Form 13F was originally designed to assist regulators and the public in understanding the effects of institutional equity ownership on the markets, the Proposal notes that the pool of users of the data has expanded over time to include academics, the media, issuers of 13(f) securities seeking to determine the beneficial holders of their publicly traded stock and, especially, market participants themselves.

In the Proposal, the SEC notes that it was mindful of alternative sources of holdings data available today. Form N-Port requires registered investment companies (generally speaking, mutual funds and ETFs) to prepare monthly holdings reports and submit them to the Commission on a quarterly basis, which information is made publicly available with a 60-day delay.^[7] The SEC also cites the implementation of the Consolidated Audit Trail (CAT) and the SEC’s increased use of technology to capture current market data, including daily transactions, as having reduced the need for the SEC to rely on Form 13F for purposes of market analysis or surveillance.

The Proposal acknowledges the particular burden of Form 13F reporting requirements on smaller managers, noting that smaller managers have described to SEC Staff that Form 13F reporting involves significant compliance burdens for them. The Proposal states that, based on Staff analysis and discussions with managers, the SEC estimates annual direct compliance costs of $15,000 to $30,000 per manager, depending on volume and complexity of holdings, the type of third-party legal and compliance review undertaken prior to filing and the filer’s experience with Form 13F.^[8]

Increase in Reporting Threshold to $3.5 Billion

SEC Consideration of Different Approaches to Increasing the Reporting Threshold

The SEC considered three different approaches to increasing the reporting threshold:

• The Stock Market Growth model uses the original $100 million threshold implemented in 1975 as a baseline, and adjusts that number based on the growth in value of U.S. public equities through the end of 2018, resulting in a new threshold of $3.57 billion, to be rounded down to $3.5 billion.^[9] The $3.5 billion threshold would decrease the dollar value of the reported holdings by approximately 9.2 percent and decrease the number of filers by about 4,500.
• The Consumer Price Inflation model would use one of two consumer price inflation calculations covering the period from 1975 to 2018. Depending on which consumer price inflation calculation is used, the model would result in reporting thresholds of approximately $500 million or $400 million; decrease the dollar value of the reported holdings by 2.4 percent or 1.9 percent; and decrease the number of current filers by about 3,200 or 2,900, respectively.
• The Stock Market Returns model would use the total return of the stock market from the end of December 1975 to the end of December 2018^[10] and would result in a new threshold of $9.33 billion; decrease the dollar value of the reported holdings by about 15.2 percent; and decrease the number of current filers by about 4,800.

Rationale for Raising the Reporting Threshold to $3.5 Billion

The SEC ultimately chose to propose an increase in the reporting threshold to $3.5 billion. The SEC determined that a “Stock Market Growth” model, which adjusts the reporting thresholds based on growth in the stock markets from the time of the adoption of the reporting requirements, better reflects the original intent of the 13(f) disclosure program as it would only apply to managers whose holdings of section 13(f) securities are large relative to the overall size of the U.S. equities market. The SEC also noted that the legislative history indicates that the 13(f) reporting threshold was designed to focus on larger managers.

The $3.5 billion threshold would retain disclosure of 90.8% of the dollar value of the Form 13F holdings data currently reported while eliminating the reporting obligation of approximately 4,500 Form 13F filers, or approximately 89.2% of all current filers.

Elimination of the Omission Threshold

The Proposal would eliminate the omission threshold that permits the exclusion of certain small holdings, namely holdings of fewer than 10,000 shares (or less than $200,000 principal amount of convertible debt securities) and less than $200,000 aggregate fair market value. The original rationale for the omission threshold was to allow the SEC to collect meaningful holdings data while minimizing the Form’s reporting burdens. The SEC viewed a reporting requirement for holdings under the omission threshold as de minimis, potentially burdensome (especially on comparatively smaller managers) and unlikely to have the potential to materially impact the market.

As the Proposal would entirely eliminate the reporting requirements for most smaller managers, the SEC has determined that managers still subject to the 13(f) disclosure program would find the incremental increase in cost of including all of their securities holdings information on Form 13F to be immaterial.

Confidential Treatment Requests

Pursuant to Section 13(f)(4) of the Exchange Act, the SEC may prevent or delay public disclosure of information reported on Form 13F in accordance with the provisions of the Freedom of Information Act.^[11] In 2019, a U.S. Supreme Court decision changed the standard for determining whether information is “confidential” under exemption 4 of the Freedom of Information Act.^[12] The Proposal seeks to harmonize the instructions for Confidential Treatment Requests on Form 13F with that decision.

The Proposal would amend Form 13F instructions that currently state that a manager may apply to the SEC to receive confidential treatment for certain holdings if the manager is able to demonstrate that failure to grant a request for confidential treatment “would be likely to cause substantial harm to the Manager’s competitive position.”^[13] Under the Proposal, managers seeking confidential treatment would need to (i) demonstrate that the information is customarily and actually kept private by the manager and (ii) to show how the release of this information “could cause harm to the manager.”^[14]

Under the Proposal, managers subject to Form 13F reporting requirements, including non-U.S. managers and investment advisers, would face a comparatively lower burden for making a Confidential Treatment Request.

SEC Requests for Comment

The SEC has requested comment on several aspects of the Proposal, issuing 34 specific requests for comment, including the following:

• Whether the proposed $3.5 billion threshold is appropriate and calculated under the correct model or, alternatively, whether the SEC should adjust the threshold to account for consumer price inflation;
• Whether the SEC Staff should conduct periodic reviews of the Form 13F reporting threshold or adopt an automatic periodic adjustment to the Form 13F reporting threshold;
• Whether the SEC Staff should eliminate the omission threshold as proposed or, if not, whether there should be an automatic mechanism for adjustment to the omission threshold;
• Whether the proposed technical amendments will increase the costs and burdens on filers; and
• Whether the proposed technical amendments will increase the accuracy of Form 13F and make the data it contains more accessible and easier for the public to understand.

Conclusion

The SEC will accept comments on the Proposal for 60 days following publication in the Federal Register. It is important to note that managers exceeding the current reporting threshold must continue to file Forms 13F until such time as the Proposal is adopted and effective. If you have any questions or concerns, please contact a member of our team.