The U.S. Securities and Exchange Commission (SEC) has adopted final rules1 to eliminate redundant, duplicative, overlapping, outdated, or superseded disclosure requirements. These rules, adopted more than two years after the SEC proposed such changes,2 amend certain provisions of Regulation S-X and Regulation S-K, certain rules promulgated under the Securities Act of 1933 and the Securities Exchange Act of 1934, and certain related forms. The amendments are a product of the SEC’s efforts to ease understanding for investors and reduce unnecessary compliance burdens for issuers.
Redundant or Duplicative Requirements
The final rules eliminate certain disclosure requirements that require substantially similar disclosures as U.S. generally accepted accounting principles (“U.S. GAAP”), International Financial Reporting Standards (“IFRS”), or other SEC disclosure requirements. Section II.B.2 of the adopting release includes a table listing the eliminated provisions of Regulation S-X relating to, among other items, financial statement consolidation, debt obligations, income tax disclosures, securities subject to convertible instruments, related party identifications, contingencies, and earnings per share.
The final rules also eliminate and/or integrate certain disclosure requirements that overlap with disclosures under U.S. GAAP and other SEC disclosure requirements. For example, the amendments eliminate certain requirements under Regulation S-X relating to derivative instruments and certain other requirements described in the table in Section III.B.1.g)(1) of the adopting release.
In addition, the final rules eliminate multiple requirements under Regulation S-K due to overlap, including those described in the table included in Section III.B.2 of the adopting release, as well as:
- the requirement to disclose in the business section of a prospectus or periodic report the amount spent on research and development activities, information by geographic area, the risks associated with foreign operations, and segment financial information;
- the requirement to discuss seasonality in the Management’s Discussion and Analysis;
- the requirement to provide Regulation S-K Item 201(d) equity compensation plan disclosure in response to Item 10 (Compensation Plans) of Schedule 14A;3
- in connection with offerings of debt securities and/or preferred stock, the requirement to disclose the ratio of earnings to fixed charges and ratio of combined fixed charges and preference dividends to earnings, as applicable; and
- the requirement to include pro forma financial information in interim filings for business combinations under Rule 8-03(b)(4) and Rule 10-01(b)(4) of Regulation S-X.
For several disclosure requirements that overlapped with, but required information in addition to, other SEC disclosure requirements, the final rules integrate the overlapping disclosure requirements. For example, disclosures about restrictions on the payment of dividends and related items have been revised and/or consolidated, as described in the table in Section III.C.2 of the adopting release.
The final rules also amend a number of disclosure requirements that have become outdated as a result of the passage of time or changes in regulatory, business, or technological environments. For example, recognizing that daily market prices of most publicly traded common equity securities are readily available free of charge on numerous websites, the final rules eliminate the requirement under Item 201(a)(1) of Regulation S-K to provide detailed disclosure of sale or bid prices for most issuers whose common equity is traded in an established public trading market. Other amendments, including the elimination of the requirement to refer to the SEC’s Public Reference Room and the addition of the requirement that all issuers disclose their website address, are described in the table in Section IV.C.2 of the adopting release.
Finally, the final rules amend other provisions that have been superseded by newer accounting, auditing, and disclosure requirements, including by eliminating, among other things, all references to “extraordinary” items in the SEC’s rules and forms and making related amendments to Item 302(a)(1) of Regulation S-K. The tables in Sections V.B.2, V.B.6, V.C.1, and V.C.2 of the adopting release describe certain other eliminations and amendments, including with respect to financial statement requirements and auditing standards.
The SEC refrained from adopting some of the amendments it proposed two years ago and has, instead, referred certain requirements in Regulation S-X and Regulation S-K to the Financial Accounting Standards Board (FASB) for potential incorporation into U.S. GAAP. The SEC has requested that the FASB complete its determination process within 18 months after the adopting release is published in the Federal Register.
The adopting release includes a detailed table, ahead of the table of contents, for ease of reference to the several rules and disclosure requirements impacted by the amendments. In addition, the SEC has published a “ Demonstration Version ” of the final rules, which contains a markup of the amended rules and highlights those items referred to FASB, in each case, cross-referencing to the applicable section of the adopting release.4
The final rules will become effective 30 days after they are published in the Federal Register. In the interim, issuers should review the final rules, together with the “Demonstration Version” referenced above, to familiarize themselves with both the content and placement of disclosures as amended.
Issuers should take special note that the relocation of certain disclosures from outside to inside the financial statements will subject such disclosures to annual audit and/or interim review, internal control over financial reporting, and XBRL tagging requirements, as applicable. In addition, the safe harbor under the Private Securities Litigation Reform Act of 1995 for forward-looking statements will not be available for disclosures moved to inside the financial statements.
Womble Bond Dickinson regularly advises publicly traded companies on SEC filings and related matters. If you need assistance or have any questions regarding the issues discussed in this alert, please contact Jessica Dickerson at (336) 721-3677 or Jessica.Dickerson@wbd-us.com , or you may contact the Womble Bond Dickinson attorney with whom you usually work or one of our Public Company Advisors Team attorneys for more information.
1 See “Disclosure Update and Simplification,” SEC Release No. 33-10532 (Aug. 17, 2018), available at https://www.sec.gov/rules/final/2018/33-10532.pdf (hereinafter referred to as the “adopting release”).
2 See “Disclosure Update and Simplification,” SEC Release No. 33-10110 (Jul. 13, 2016), available at https://www.sec.gov/rules/proposed/2016/33-10110.pdf.
3 Note, however, that the SEC retained the Item 201(d) disclosure requirement in Part III of Form 10-K.
4 See Demonstration Version to the adopting release, available at https://www.sec.gov/rules/ proposed/2018/33-10532-demonstration.pdf .