The SEC has proposed to amend Form 13F to update the reporting threshold for institutional investment managers from $100 million to $3.5 billion. The threshold has not been adjusted in over 40 years. Section 13(f) of the Exchange Act requires an investment manager to file a report with the SEC if the manager exercises investment discretion with respect to accounts holding certain equity securities having an aggregate fair market value on the last trading day of any month of any calendar year of at least $100 million. If the amendments are approved, that threshold would be raised substantially. The proposal would also require SEC review of the Form 13F reporting threshold every five years and would eliminate the ability of managers to omit certain small positions.

The SEC’s Division of Corporation Finance published additional guidance regarding disclosure obligations that companies should consider with respect to intellectual property and technology risks that may occur when they engage in international operations. While the guidance does not contain any new rules or interpretations, it is a good reminder for companies to review their IP and cybersecurity risk factors as they prepare their forthcoming 10-Ks. The guidance includes examples and questions that each company should consider.

Read more here.

The SEC today proposed amendments to the definition of “accredited investor,” one of the principal tests for who is eligible to participate in exempt private placements of securities. According to the SEC, the proposed amendments seek “to update and improve the definition to more effectively identify institutional and individual investors that have the knowledge and expertise to participate in our private capital markets.”

Besides the existing qualifications based on income or net worth, the amendments would add additional means for individuals to qualify as accredited investors by adding new categories based on their professional knowledge, experience, or certifications. In addition, the amendments would expand the list of entities that may qualify as accredited investors by, among other things, including a “catch-all” category for any entity owning in excess of $5 million in investments. The proposed amendments would also expand the list of eligible entities under the definition of “qualified institutional buyer” under Rule 144A under the Securities Act.

More specifically, the proposed amendments would make the following changes to the accredited investor definition:

• add new categories that would permit natural persons to qualify based on certain professional certifications and designations, such as a Series 7, 65 or 82 license, or other credentials issued by an accredited educational institution;
• with respect to investments in a private fund, add a new category based on the person’s status as a “knowledgeable employee” of the fund;
• add limited liability companies that meet certain conditions, registered investment advisers and rural business investment companies (RBICs) to the current list of entities that may qualify as accredited investors;
• add a new category for any entity, including Indian tribes, owning “investments,” as defined in Rule 2a51-1(b) under the Investment Company Act, in excess of $5 million and that was not formed for the specific purpose of investing in the securities offered;
• add “family offices” with at least $5 million in assets under management and their “family clients,” as each term is defined under the Investment Advisers Act; and
• add the term “spousal equivalent” to the accredited investor definition, so that spousal equivalents may pool their finances for the purpose of qualifying as accredited investors.

The proposed amendments to the qualified institutional buyer definition in Rule 144A would add limited liability companies and RBICs to the types of entities that are eligible for qualified institutional buyer status if they meet the $100 million in securities owned and investment threshold in the definition. The proposed amendments would also add a “catch-all” category that would permit institutional accredited investors under Rule 501(a), of an entity type not already included in the qualified institutional buyer definition, to qualify as qualified institutional buyers when they satisfy the $100 million threshold.

The proposed amendments will be subject to a 60-day public comment period, after which the SEC will decide whether to proceed to final rulemaking.

The SEC today requested public comment on ways to simplify, harmonize, and improve the exempt offering framework to expand private investment opportunities while maintaining appropriate investor protections and to promote capital formation.

The concept release seeks input on whether changes should be made to improve the consistency, accessibility and effectiveness of the SEC's exemptions for both companies and investors, including identifying potential overlap or gaps within the framework. It also considers, among other things, whether:  

• The limitations on who can invest in certain exempt offerings, or the amount they can invest, provide an appropriate level of investor protection or pose an undue obstacle to capital formation or investor access to investment opportunities
• The SEC should take steps to facilitate a company's ability to transition from one offering to another or to a registered offering
• The SEC should expand companies' ability to raise capital through pooled investment funds
• Retail investors should be allowed greater exposure to growth-stage companies through pooled investment funds such as interval funds and other closed-end funds
• The SEC should revise its exemptions governing the secondary trading of securities initially issued in exempt offerings

Among other things, the SEC poses various questions on topics such as whether there should be any changes to Rule 506 (the release includes a discussion of the "accredited investor" definition), Regulation A, Rule 504, the intrastate offering exemptions and Regulation Crowdfunding and whether there may be gaps in the Commission’s framework that may make it difficult, especially for smaller companies, to rely on an exemption from registration to raise capital at key stages of their business cycle.

The public comment period for the concept release will remain open for 90 days following publication of the release in the Federal Register, following which the SEC may (or may not) propose specific rule changes.

The SEC today voted to propose amendments to the definitions of "accelerated filer" and "large accelerated filer," which are used to determine, among other things, the filing deadlines for periodic reports and the requirement for providing an audit of internal control over financial reporting (ICFR). 

The proposed amendments would better align the definition of accelerated filer with recent changes to the definition of "smaller reporting company" (SRC). The amendments would:

• Exclude from the accelerated and large accelerated filer definitions an issuer that is eligible to be an SRC and had no revenues or annual revenues of less than $100 million in the most recent fiscal year for which audited financial statements are available
• Increase the transition thresholds for accelerated and large accelerated filers becoming a non-accelerated filer from $50 million to $60 million and for exiting large accelerated filer status from $500 million to $560 million
• Add a revenue test to the transition thresholds for exiting both accelerated and large accelerated filer status

As a result of the proposed amendments, smaller reporting companies with less than $100 million in revenues would not be required to obtain an attestation of their ICFR from an independent outside auditor. 

The proposals will be subject to a 60-day public comment period, following which the SEC will determined its next steps.

The Securities and Exchange Commission proposed amendments to the financial disclosure requirements in Rules 3-05, 3-14, and Article 11 of Regulation S-X, as well as related rules and forms, for financial statements of businesses acquired or to be acquired and for business dispositions. The proposed changes are intended to (1) improve for investors the financial information about acquired and disposed businesses; (2) facilitate more timely access to capital; and (3) reduce the complexity and cost to prepare the disclosure. The proposals will be subject to public comment, following which the SEC may make additional revisions before adopting any changes.

The proposed changes would, among other things:

• update the significance tests under these rules by revising the investment test and the income test, expanding the use of pro forma financial information in measuring significance, and conforming the significance threshold and tests for a disposed business;
• require the financial statements of the acquired business to cover up to the two most recent fiscal years rather than up to the three most recent fiscal years;
• permit disclosure of financial statements that omit certain expenses for certain acquisitions of a component of an entity;
• clarify when financial statements and pro forma financial information are required;
• permit the use in certain circumstances of, or reconciliation to, International Financial Reporting Standards as issued by the International Accounting Standards Board;
• no longer require separate acquired business financial statements once the business has been included in the registrant’s post-acquisition financial statements for a complete fiscal year;
• align Rule 3-14 with Rule 3-05 where no unique industry considerations exist;
• clarify the application of Rule 3-14 regarding the determination of significance, the need for interim income statements, special provisions for blind pool offerings, and the scope of the rule’s requirements;
• amend the pro forma financial information requirements to improve the content and relevance of such information; more specifically, these improvements would include disclosure of "Transaction Accounting Adjustments," reflecting the accounting for the transaction; and "Management’s Adjustments," reflecting reasonably estimable synergies and transaction effects; and
• make corresponding changes to the smaller reporting company requirements in Article 8 of Regulation S-X.

The SEC recently adopted amendments pursuant to the Fixing America’s Surface Transportation Act (commonly referred to as the FAST Act) to modernize and simplify disclosure requirements in Regulation S-K, and related rules and forms, for public companies, investment advisers and investment companies. Such amendments include changes to, among others, Item 102 (Description of Property), Item 303 (Management’s Discussion and Analysis of Financial Condition and Results of Operations), Item 503 (Prospectus Summary and Risk Factors), Item 601 (Exhibits) and various rules related to incorporation by reference.

Among the most impactful changes are:

1. Allowing companies to generally exclude discussion of the earliest of three years required by Item 303 (Management’s Discussion and Analysis of Financial Condition and Results of Operations) if such discussion has already been included in a prior filing. 

2. Limiting the disclosure required by Item 102 (Description of Property) to only those physical properties that are material.

3. With respect to exhibits to SEC filings (Item 601):

(a) Allowing companies to omit attachments such as schedules and exhibits to their material contracts filed as exhibits to SEC filings if such attachments don't contain material information or were not otherwise disclosed.

(b) Eliminating the requirement (other than for newly reporting companies) to file as exhibits material contracts that were entered into less than two years before that filing.

(c) Permitting companies to omit from material contracts and certain other exhibits to SEC filings confidential information that is not material and would likely cause such companies competitive harm if made public, without requiring companies to first file confidential treatment requests.

(d) Eliminating the requirement to file as an exhibit to SEC filings any document that is incorporated by reference in such filing, but instead requiring companies to provide hyperlinks to documents incorporated by reference.

4. Permitting companies to omit disclosure about Section 16 reports if all reports have been timely filed (and eliminating the box on the cover of Form 10-Ks regarding Section 16 disclosure).

The rules also add a few requirements regarding Inline XBRL tagging of cover pages, among others.

Registrants will be required to disclose on the cover page of Forms 8-K, 10-Q, 10-K, 20-F and 40-F the national exchange or principal U.S. market for their securities, their trading symbol and the title of each class of securities.

The final rules, which can be found here, are effective 30 days after publication in the federal register, except for the amendments to the rules governing the redaction of confidential information in material contracts referenced in Item 3(c) above, which are effective as of the date of publication in the federal register.

The SEC has issued a comment release soliciting input on many questions related to quarterly reporting. The release covers a lot of possible scenarios, any or none of which may occur. The format, as with many releases of this nature, has some limited analysis but is more dominated by questions as to which the public is invited to comment. As expected, there are some questions on whether quarterly reporting should be eliminated or changed to semi-annual, and if so, if this should only be for certain types of issuers (such as smaller reporting companies or emerging growth companies). Perhaps more interesting, there are a lot more questions and discussion of potential ways to combine quarterly earnings releases with Quarterly Reports on 10-Q, given their overlap and proximity in release/filing times. The thrust of many of the questions seems to be if there are ways to reduce redundancy without delaying the process.

Yesterday (without a meeting), the SEC approved final rules to require companies to disclose in proxy or information statements for the election of directors any practices or policies regarding the ability of employees or directors to engage in certain hedging transactions with respect to company equity securities. This rulemaking had been mandated by the Dodd-Frank Act in 2010 and had sat in proposal form for several years. 

Under the new rules, new Item 407(i) of Regulation S-K will require a company to describe any practices or policies it has adopted regarding the ability of its employees (including officers) or directors to purchase securities or other financial instruments, or otherwise engage in transactions, that hedge or offset, or are designed to hedge or offset, any decrease in the market value of equity securities granted as compensation, or held directly or indirectly by the employee or director. A company could satisfy this requirement by either providing a fair and accurate summary of the practices or policies that apply, including the categories of persons they affect and any categories of hedging transactions that are specifically permitted or specifically disallowed, or, alternatively, by disclosing the practices or policies in full. If the company does not have any such practices or policies, the rule will require the company to disclose that fact or state that hedging transactions are generally permitted.

Companies generally must comply with the new disclosure requirements in proxy and information statements for the election of directors during fiscal years beginning on or after July 1, 2019. However, smaller reporting companies and emerging growth companies do not have to comply until their proxy and information statements for the election of directors during fiscal years beginning on or after July 1, 2020. Listed closed-end funds and foreign private issuers will not be subject to the new disclosure requirements.

Today the SEC adopted amendments to eXtensible Business Reporting Language (XBRL) requirements for operating companies and funds. The amendments are intended to improve the quality and accessibility of XBRL data by replacing the existing requirements for tagged data to be filed as exhibits to certain SEC filings and posted as separate files on companies’ websites. The amendments, which will go into effect in phases, require the use of Inline XBRL for financial statement information and risk/return summaries.    

While the amendments modify existing XBRL requirements, they do not change the categories of filers or scope of disclosures subject to XBRL requirements, nor do they change the relevant liability standards.

Operating companies that are currently required to submit financial statement information in XBRL will be required, on a phased basis, to transition to Inline XBRL, with large accelerated filers that use U.S. GAAP being required to comply beginning with fiscal periods ending on or after June 15, 2019, accelerated filers that use U.S. GAAP being required to comply beginning with fiscal periods ending on or after June 15, 2020, and all other filers being required to comply beginning with fiscal periods ending on or after June 15, 2021. Filers will be required to comply beginning with their first Form 10-Q (not 10-K) filed for a fiscal period ending on or after the applicable compliance date.

Funds that are currently required to submit risk/return summary information in XBRL will be required, on a phased basis, to transition to Inline XBRL, with large fund groups (net assets of $1 billion or more as of the end of their most recent fiscal year) being required to comply two years after the effective date of the amendments and all other funds being required to comply three years after the effective date of the amendments. The amendments also eliminate the 15 business day filing period for risk/return summary XBRL data, so that the data will be more timely available to the public.