Foreign private issuers have historically had the ability to file registration statements with the Securities and Exchange Commission on a confidential basis. Confidential filings afforded these issuers the ability to respond to Commission comments and amend their filings outside of public scrutiny. On December 8, 2011, the Commission announced that it was limiting its policy of allowing foreign private issuers to submit registration statements on a confidential basis.

Prior to the new policy, all foreign private issuers were permitted to submit registration statements on a confidential basis. Effective immediately, confidential submissions will only be permitted by:

  • foreign governments registering debt securities;
  • foreign private issuers that are listed or concurrently listing on a non-U.S. exchange;
  • foreign private issuers that are being privatized by a foreign government; and
  • foreign private issuers that can demonstrate that a public filing would conflict with applicable foreign law.

Confidential filings should be submitted to the Commission by e-mail to oicf_fpi_submissions

The Commission also noted that foreign issuers that fall within one of the delineated categories may still be requested to make a public filing under certain circumstances, such as a competing bid in an acquisition transaction or in situations where notice of a proposed listing is already in the public domain.

Given that a large number of foreign private issuers filing registration statements in the U.S. are either already listed in their home jurisdictions or intend to be concurrently listed, we do not expect the new Commission policy to have a significant impact on filings, other than for foreign private issuers undertaking a listing exclusively on a U.S. exchange. Such issuers should now be prepared to file registration statements and amendments via the EDGAR system and to have Commission comment letters and responses publicly available.

The new Commission policy can be found here.