I’m happy to be reporting from sunny Coronado this week, for the Northwestern Pritzker School of Law Securities Regulation Institute. It’s pretty easy to be in high spirits when you’re enjoying ocean views. But why stop there? SEC Commissioner Mark Uyeda injected even more energy with his keynote address yesterday.

I interpreted Commissioner Uyeda’s remarks as permission to “dream big” when it comes to the comprehensive review of Regulation S-K that SEC Chair Paul Atkins announced earlier this month. In addition to stating that the Commission needs to refocus on financial materiality with the disclosure framework, Commissioner Uyeda recognized a few pain points that the Staff may review:

There are areas for improvement. For example, with regard to insider trading arrangements and policies under Item 408,[15] we could consider deleting the requirement in subparagraph (b) that mandates companies explain whether they have an insider trading policy or provide reasons if they do not. This would not change any underlying federal securities law obligations or liability thereunder, but would simplify disclosures.

Similarly, with regard to transactions with related persons under Item 404,[16] we could consider adjusting the de minimis threshold of $120,000 to a higher amount, which might better align the requirement with materiality considerations. Or we could consider replacing a static number with a more principles-based approach to materiality that has worked well in other contexts. Additionally, the narrative description of company policies under subparagraph (b) could be replaced with a requirement for companies to file their policies or make them readily available on their websites. This would maintain transparency while streamlining SEC filings.

In the cybersecurity area, we should re-consider our approach to the current mandated disclosures. We should consider whether Item 106[17] could be streamlined to simplify the narrative disclosures of cybersecurity policies and governance oversight. Our disclosure rules should generally not be the driver for what a company does or does not, but disclosure requirements such as these and others are likely shaming or indirectly compelling companies to change practices rather than eliciting material disclosure as to what the company is doing.

There are similar areas for potential improvement in Item 701 and disclosure of unregistered transactions.[18] We could evaluate whether the corresponding Form 10-K item, requiring a 3-year look-back for unregistered sales of securities by the registrant, could be eliminated or otherwise modified.

Simplifications could also be made to Item 201 for disclosures of the number of security holders and performance graphs. Perhaps we could delete the five-year graph of the issuer’s total cumulative return compared to a broad index and a line-of-business or peer group index under subparagraph (e). Given the wide availability of evaluative tools on the internet and mobile devices, do investors continue to need such disclosure?

And although not squarely within the scope of Regulation S-K, I would be remiss if I did not mention disclosure related to mine safety in Form 10-Q.[19] Surely, we can include such disclosure elsewhere than in a recurring quarterly filing—the most logical place would likely be in Form 8-K or Form SD. One important consideration is that each of these requirements feeds into evaluations under an issuer’s disclosure controls and procedures (“DCPs”), adding one more step in terms of identifying whether any transactions or events are reportable.

These are a few examples where we may be able to improve disclosure requirements to ensure they are relevant and efficient in the current regulatory environment. In the aggregate such revisions may reduce compliance burdens, improve our regulatory roadmap and—hopefully, minimize late nights spent by lawyers at public companies having nothing to do with mining but nonetheless wondering if they need DCPs for mine safety incidents.

He also addressed scaled disclosures, noting:

Over 40% of companies (42.5%) must comply with the full scope of the Commission’s disclosure requirements.[22] If the Commission were to reduce this number to approximately 20%, the total number of additional companies that would be able to provide scaled disclosure requirements would increase by almost 1,400.[23] From an investor protection standpoint, however, those 20% of the companies still subject to the full scope of our disclosure requirements would represent almost 93.5% of total market public float.

Commissioner Uyeda floated the notions of recalibrating the size thresholds and time periods for scaled disclosure eligibility, as well as expanding the use of Form S-3.

While this speech was subject to the standard disclaimer of being the Commissioner’s individual views, it’s well-aligned with remarks from Chair Atkins.

– Liz Dunshee