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SEC Adopts Amendments Related to FAST Act Modernization and the Simplification of Regulation S-K

March 27, 2019

On March 20, 2019, the Securities and Exchange Commission (SEC) announced amendments “intended to improve the readability and navigability of company disclosures, and to discourage repetition and disclosure of immaterial information.” These amendments were adopted as part of the SEC’s efforts to implement the Fixing America’s Surface Transportation Act and build upon the SEC’s previous disclosure simplification amendments adopted on August 17, 2018, and discussed in more detail here.

Appendix A (available here) summarizes the more significant disclosure changes adopted by the SEC on March 20, 2019. These amendments include, among other things, changes to Management’s Discussion and Analysis to allow for flexibility in discussing historical periods, amendments permitting the omission of confidential information from most exhibits without filing a related confidential treatment request, and revisions eliminating the requirement to file schedules and other attachments to agreements filed under Item 601 of Regulation S-K, including material agreements. Other amendments adopted by the SEC primarily impact Regulation S-K disclosure requirements in periodic reports, including multiple changes impacting the exhibit requirements in such reports, changes affecting caption headings in such reports, and several amendments to the cover pages of Form 10-K, Form 10-Q, and Form 8-K. The SEC also adopted amendments to update incorporation by reference requirements. The formal adopting release is available here.

In addition to the changes summarized in Appendix A, the SEC also adopted several changes impacting registration statements and prospectuses under the Securities Act, including revisions to the “Subject to Completion” legend required by Item 501(b)(10) of Regulation S-K and the elimination of several undertakings previously required by Item 512 of Regulation S-K that the SEC noted were duplicative of other rules or that have become unnecessary due to developments since their adoption. These rule changes are discussed in greater detail on pages 46-57 of the adopting release.

The amendments are effective 30 days after publication in the federal register, except that the amendments relating to the redaction of confidential information in material agreements and certain other exhibits discussed in Appendix A will become effective immediately upon publication in the federal register.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Shelly Heyduk, an O’Melveny partner licensed to practice law in California, John-Paul Motley, an O’Melveny partner licensed to practice law in California, Robert Plesnarski, an O’Melveny partner licensed to practice law in the District of Columbia and Pennsylvania, and Sarah J. Levesque, an O’Melveny counsel licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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