What is a Confidential Treatment Request?
An issuer filing a registration statement with the Securities and Exchange Commission (the “SEC”) that desires to keep certain information confidential and out of the public domain may do so under limited circumstances by filing an SEC request for confidential treatment. Generally, the SEC will not grant a confidential treatment request with respect to information that is specifically required to be disclosed under the securities laws or information that is otherwise material to investors.
Confidential treatment requests can be made pursuant to:
- Rule 406 of the Securities Act of 1933, as amended (the “Securities Act”) or Rule 24b-2 of the Securities Exchange Act of 1934, (the “Exchange Act”), with respect to information required to be filed with the SEC such as a material agreement filed as an exhibit to a registration statement on Form S-1 or a periodic report; or
- Rule 83 of the SEC’s Rules of Practice, with respect to information not required to be filed with the SEC such as supplemental information provided in the context of the comment and review process.
Confidential Treatment Requests Pursuant to Securities Act Rule 406 & Exchange Act Rule 24b-2
Confidential treatment requests made pursuant to Rule 406 of the Securities Act or Rule 24b-2 of the Exchange Act must be sufficiently narrow and only include information eligible for exemption under the Freedom of Information Act (“FOIA”) and must specify the basis for the request. There are nine FOIA exemptions available. Trade secrets and commercial or financial information obtained from a person and privileged or confidential are the most commonly involved by SEC filers.
Additionally, the Confidential Treatment request must:
- contain legal and factual analyses substantiating the exemption;
- contain an affirmative representation as to the confidentiality of the information; and
- indicate the duration for which the exemption is being sought.
Confidential Treatment Requests Pursuant Rule 83 of the SEC’s Rules of Practice
Confidential treatment requests made pursuant to Rule 83 of the SEC’s Rules of Practice must be sufficiently narrow and include only the information eligible for exemption under the FOIA. Any request granted under Rule 83 expires 10 years after the date it is granted unless it is renewed prior to its expiration.
It is not necessary to substantiate an SEC Rule 83 request for confidential treatment until such time as a disclosure request is made under the FOIA.
For further information about this securities law blog post, please contact Brenda Hamilton, Securities Attorney at 101 Plaza Real S, Suite 202 N, Boca Raton, Florida, (561) 416-8956, by email at [email protected] or visit www.securitieslawyer101.com. This securities law blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as, and does not constitute, legal and compliance advice on any specific matter, nor does this message create an attorney-client relationship. Please note that the prior results discussed herein do not guarantee similar outcomes.
Hamilton & Associates | Securities Lawyers
Brenda Hamilton, Securities Attorney
101 Plaza Real South, Suite 202 North
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855