August 12, 2019
On August 8, 2019, the U.S. Securities and Exchange Commission (SEC) proposed amendments (the “Proposed Rule”) to modernize its existing requirements for how companies disclose risk factors and describe their business and developments in their business and legal (including environmental) proceedings in their periodic reports and registration statements filed with the SEC. The Proposed Rule would update Regulation S-K, which contains the line-item requirements for non-financial statement disclosures in SEC filings. The Proposed Rule is the latest in a series of SEC rulemakings (see “Another Wave of Disclosure Simplification Rules Adopted by the SEC” and “SEC Disclosure Simplification Continues”) aimed at modernizing the disclosure regime for public companies through following a more principles-based, as opposed to prescriptive, approach to disclosure and through formally adopting best practices and existing SEC interpretative guidance.
We summarize below the proposed rule changes and highlight in particular how these would affect foreign private issuers.
The deadline for submitting comments on the Proposed Rule is expected to be around mid-October. The SEC will consider the comments received from the public on the proposed amendments, and any changes will take effect only once the SEC publishes a final rule release.
The Proposed Rule seeks to alleviate the compliance burden on companies while making risk factor disclosure easier for investors to read and understand. In particular, the SEC notes that, over the years, risk factor disclosures have tended to become lengthier and include generic, boilerplate risks that are not specifically tailored to a particular company’s business. This trend has primarily been driven by the impulse that more risk disclosure equals more protection against liability when things go bad.
In an attempt to balance the protection risk factor disclosure provides against litigation with the aim of encouraging better disclosure—that is, disclosure that is clearer, better organized and that makes it easier for investors to understand a company’s risk profile—the Proposed Rule would require companies to:
The Proposed Rule would amend the risk factor disclosure requirements for registration statements on Forms F 1, F 3 and F 4 (the forms used by foreign private issuers to make offerings of securities). While the SEC is not proposing to change Form 20 F (the form used by foreign private issuers to file annual reports), the Proposed Rule solicits comments on whether the Form 20 F rules should be similarly amended. Changes to the SEC disclosure standards applicable to foreign private issuers may also, by analogy, affect disclosure practice in exempt offerings under Securities Act Rule 144A.
Notably, the Proposed Rule would align U.S. risk factor disclosures more closely with the recent changes in Europe under the new EU Prospectus Regulation (Regulation (EU) 2017/1129) that took effect in July 2019. For example, the EU Prospectus Regulation requires a summary of the most material risks (not to exceed 15 risk factors) specific to the issuer and the securities to be included in the summary section of a prospectus. In the main risk factors section, the EU Prospectus Regulation requires that risk factors be specific to the issuer or the securities being offered—generic risks that serve only as disclaimers may not be included—and organized by category depending on their nature.
The Proposed Rule seeks to make the disclosure rules requiring companies to describe their businesses, and developments in their business, more flexible in light of the varied nature of modern businesses and therefore more useful to investors. The current rule (Item 101(c) of Regulation S-K) enumerates a list of items that must be included in the narrative description of the company’s business, discussed on a reporting segment level. The Proposed Rule would take a more principles-based approach by including a non-exhaustive list of topics and clarifying that disclosure responsive to each topic is required only to the extent material to an understanding of the company’s business.
The Proposed Rule would also make the following changes to Item 101(a) and (c) of Regulation S-K:
The equivalent Form 20-F disclosure requirements, contained in Items 4.A and 4.B, are one area in which disclosure by foreign private issuers is already moderately less prescriptive than that required of U.S. domestic registrants, as Form 20-F was revised in 1999 to align more closely to international standards. The Proposed Rule would not affect these. There is some concern that updating Form 20-F to align to the Proposed Rule could result in foreign private issuers losing the ability to use the same disclosure in multiple jurisdictions.
The Proposed Rule would not affect foreign private issuers. While Form 20-F does not include a similar bright-line test with respect to environmental proceedings, it does include a requirement to disclose legal or arbitral proceedings (including governmental proceedings) which may have or have had a “significant effect” on the company’s financial position or profitability.