KMK Law Corporate & Securities Blog

On April 2, 2019, the SEC adopted new rules allowing for the filing of redacted material contracts without the need to apply for confidential treatment.  The rules, included in Item 601(b) of Regulation S-K, provide that information contained in material contracts may be redacted, provided the redacted information (i) is not material and (ii) would be competitively harmful if publicly disclosed.  In order to properly redact such information, companies must comply with specific requirements, including marking the exhibit index of the filing to indicate that portions of a contract have been omitted, inserting a statement on the exhibit itself that certain information has been redacted and indicating where information has been redacting by the use of brackets.

On April 16, 2019, the SEC’s Division of Corporation Finance announced the implementation of a short form application to extend the time for which confidential treatment for a material contract can be extended under a previously obtained order.  The application is a one-page form that can be submitted via email to the SEC and will allow a company to request protection from public release pursuant to the Freedom of Information Act for an additional three, five or ten years.  The new application process does not require the company to refile the unredacted documents or to provide analysis in support of the request for confidential treatment if the analysis remains the same as provided in the initial application.