When disclosing information in a filing with the SEC, it is important to know whether such disclosure and any related exhibits should be "filed" or "furnished". To non-lawyers, this may seem like semantics or another technical difference among lawyers, but there is a distinct and important difference, which is oftentimes the cause behind the questions we receive from in-house counsel.
Most in-house counsel of public companies are very familiar with the reporting obligations required by the trifecta – Form 8-Ks, Form 10-Qs and Form 10-Ks – but they oftentimes rely on outside counsel to help determine whether any filings are required to be made under Section 16 of the Exchange Act. If someone is an officer or director of a public company or owns more than 10% of any class of securities of a public company, that person is deemed to be an insider of that company and is required to file the following forms with the SEC in order to report his or her insider-ness. As a practical matter, many companies assist their insiders with these forms as a courtesy, even though they are not technically the company’s responsibility.