TheCorporateCounsel.net

I don’t know about you, but I have been fielding my fair share of questions this reporting season regarding the SEC’s changes to the share repurchase disclosure rules that were vacated late last year by the United States Court of Appeals for the Fifth Circuit. I think the problem primarily stems from the fact that the rule text reflecting the amendments to Item 703 of Regulation S-K and other disclosure items is still reflected in a number of online resources, so unless you realize that those amendments have been vacated, it would appear that companies have to comply with the broader range of disclosure requirements contemplated by the amendments adopted last summer.

Recently, the SEC’s Division of Corporation Finance sought to alleviate some of this confusion by posting a Further Announcement Regarding Share Repurchase Modernization Rule. The announcement notes:

On December 19, 2023, the U.S. Court of Appeals for the Fifth Circuit issued an opinion in Chamber of Com. of the USA v. SEC, No. 23-60255 (5th Cir.) vacating the Share Repurchase Disclosure Modernization rule (the “Final Rule”). As a result of the vacatur, the disclosure requirements revert to those in effect prior to the Final Rule’s effective date.

For convenience, the prior disclosure requirements can be found here:
Item 703 of Regulation S-K
Form 10-K
Form 10-Q
Form 20-F

Please direct any questions to the Division of Corporation Finance at (202) 551-3100.

I sure hope that the various online sources of SEC rules and forms get cleaned up over time so that this confusion does not persist past the current reporting season.

– Dave Lynn