Earlier this week, in response to continued health and safety concerns from COVID-19, Corp Fin issued a statement providing a temporary secure file transfer process for submission of supplemental materials pursuant to Securities Act Rule 418 and Exchange Act Rule 12b-4, as well as information subject to Rule 83 confidential treatment requests.
Supplemental Materials: Securities Act Rule 418 and Exchange Act Rule 12b-4 permit the Commission or its staff to request certain supplemental materials. The secure file transfer process allows for electronic submission to the Division of supplemental materials submitted pursuant to Rules 418 and 12b-4 during this temporary accommodation, including supplemental materials subject to a Rule 83 confidential treatment request.
Rule 83 Confidential Treatment Requests: The Commission’s Rule 83 provides a procedure by which persons submitting information may request confidential treatment for portions of that information where no other confidential treatment process applies. Information subject to a Rule 83 confidential treatment request must be, to the extent practicable, submitted separately from information for which confidential treatment is not requested, appropriately marked as confidential, and accompanied by a separate written request in paper format for confidential treatment. Although Rule 83 requires that confidential treatment requests be submitted in paper format, the rule also permits the designation of alternative procedures. The secure file transfer process allows for electronic submission to the Division of Rule 83 requests for confidential treatment together with the confidential information during this temporary accommodation. A copy of the request for confidential treatment (but not the confidential information itself) must also be submitted to the Commission’s Office of FOIA Services.
Anyone wishing to submit information using FTP should contact the staff member associated with the matter to request the initiation of FTP. The statement also advises not to send supplemental information or Rule 83 CTRs through email. Supplemental information and information subject to Rule 83 CTR can still be sent to the SEC mailroom, however, the statement says there will be delays in processing the documents.
For more information to help navigate the rules relating to confidential treatment requests, check out our “Confidential Treatment Requests” Handbook and our checklists — “Confidential Treatment Requests — Basics” and “Confidential Treatments Requests — Drafting” — that are available to members on TheCorporateCounsel.net.
-Lynn Jokela, TheCorporateCounsel.net August 6, 2020
