TheCorporateCounsel.net

November 9, 2005

Ramping Up for the ’33 Act Reform

With the December 1st effective date approaching, many of us are ramping up for the many changes that will take place. I just posted a helpful Davis Polk memo about issuer preparedness in our “Hot Box” on the home page; a nice companion to the Sullivan & Cromwell memo that I posted earlier. Soon I will announcing additional webcasts on what deals actually look like under the new regime.

Heads Up: ’33 Act Reform and EDGAR Coding

Last Friday, the SEC adopted the updated EDGAR Filer Manual that includes numerous changes in response to the ’33 Act reform rules that become effective December 1st.

Some of the changes in the updated EDGAR Filer Manual can be confusing, because even though the new rules aren’t effective until December 1st, the headers for Form 10-Ks and 20-Fs must now include a checkbox as to whether the filer is a WKSI or voluntary filer (which is further odd because the voluntary filer checkbox doesn’t appear to be required for Form 10-SBs; but it is required for 10-Ks), as well as include a checkbox as to whether the filer is a shell company.

On the other hand, a filing will be suspended if it includes certain ’33 reform coding before December 1st, such as coding for free-writing prospectuses (i.e. the new Form FWP).

The revised Volume II of the EDGAR Filer Manual also updates the Form 8-K to include Item 5.06 for changes in shell company status.

In addition, the SEC Staff has issued this statement, which includes Q&As about EDGAR programming and Regulation AB for asset-backed issuers.

FOIA Litigation Against the SEC

Last week, a Federal judge concluded that the SEC failed to follow proper procedure in responding to litigation brought by SEC Insight in 2004, an independent and private investment research firm. According to this press release, starting under former Chairman Harvey Pitt, the SEC began to simply “refuse to confirm or deny” the existence of records in response to many of SEC Insight’s FOIA requests. SEC records show that this type of denial, commonly referred to as a “Glomar response,” was asserted by the SEC only three times in the entire decade prior to 2002 – but was used 99 times in 2003 alone, with 66 of those instances specifically targeted at blocking SEC Insight’s requests.

The court declined to issue an injunction against the SEC’s future use of the Glomar. However, the SEC has not issued a Glomar response against SEC Insight since the lawsuit was filed. Here is a copy of the court’s order, which we have posted in the “Confidential Treatment Requests” Practice Area.