SEC Curtails “Quiet Filing” Review for First-Time Foreign Registrants

December 8, 2011

On December 8, 2011 the Securities and Exchange Commission (“SEC”) announced immediate changes that curtail its non-public review process for foreign private issuers that are first-time filers. Before the announcement, foreign private issuers without securities listed in the United States had the option of submitting their initial registration statement to the SEC on a non-public, confidential basis. In a significant change of policy, the SEC will require all initial registration statements by such foreign private issuers to be filed publicly via the SEC’s EDGAR website, with limited exceptions. For example, a foreign private issuer that is listed, or is concurrently listing, securities on a non-U.S. exchange, is being privatized by a foreign government, or can demonstrate that a public filing would conflict with the law of an applicable foreign jurisdiction may still avail itself of the non-public submission and review process for its initial SEC registration statement. The SEC noted that shell companies, blank check companies and issuers with no or substantially no business operations (e.g., special purpose acquisition companies, or SPACs) will not be allowed to use the non-public submission process.

Any confidential submission received by the SEC before December 8, 2011 will continue to be reviewed without public filing; however, the next draft of the registration statement, whether in response to comments issued by the staff or otherwise, must be filed via the SEC’s EDGAR filing system.

The SEC’s notice concludes with the statement that it will continue to assess use of the confidential filing process and may make changes in the future.

If you have any questions concerning this bulletin, please contact your Seward & Kissel LLP Capital Markets Group attorney.