SEC Adopts Amendments to Form 13F

Latham & Watkins LLPChanges include switching from paper to electronic filing requirement for confidential treatment requests.

On June 23, 2022, the Securities and Exchange Commission (SEC) adopted certain amendments to Form 13F (the Adopting Release) that will become effective at the beginning of 2023.

Eliminating Paper Filing and Mandating Electronic Filing for Confidential Treatment Requests

Pursuant to Section 13(f) of the Securities Exchange Act of 1934 (the Exchange Act) and Rule 13f-1 promulgated by the SEC thereunder, institutional investment managers (Managers) that exercise investment discretion over at least US$100 million of “section 13(f) securities” (i.e., in general terms, US exchange-listed equity securities and options) are required to publicly disclose their positions in section 13(f) securities as of the end of each calendar quarter on a Form 13F filing that is due 45 days after the end of such quarter.

Pursuant to Section 13(f) of the Exchange Act and the Freedom of Information Act, the SEC permits Managers to submit “confidential treatment requests” whereby they can seek permission from the SEC to omit for up to one year from their Form 13F filings certain positions that constitute “confidential, commercial or financial information” by demonstrating to the SEC that prematurely disclosing the position to the public on Form 13F would reveal ongoing investment strategy to competitors and cause substantial harm to competitive position.

Currently, confidential treatment requests must be submitted as paper filings to the SEC. The SEC stated in the Adopting Release that paper confidential treatment requests “are subject to a time-consuming, manual receipt and distribution process within the Commission that could lead to undue procedural delay and increase the time that the information receives de facto confidential treatment while the staff processes a 13(f) Confidential Treatment Request.”[1] The SEC further acknowledged that such delays (and consequent de facto confidential treatment) did actually take place during the COVID-19 pandemic.[2]

The amendments that the SEC adopted will eliminate the current paper filing requirement for confidential treatment request and require electronic filing. The SEC stated that it believes this switch will expedite its review of confidential treatment requests and “reduce the period of de facto confidential treatment that accrues pending review and thus ultimately allow for quicker dissemination of Form 13F holdings information.”[3]

The SEC also adopted an amendment to Form 13F’s instructions that would, in line with a June 2019 US Supreme Court decision, expressly require the Manager to demonstrate that the information that it is seeking confidential treatment for is customarily and actually kept private by the Manager.

Other Amendments to Form 13F

The SEC also adopted certain other relatively minor amendments to Form 13F, including requiring each Manager to provide its and its related managers’ Central Registration Depository number (CRD number) and its SEC file number, if any and permitting but not requiring disclosure, for each security reported on Form 13F, of the security’s Financial Instrument Global Identifier (FIGI) in addition to its CUSIP number. Finally, the amendments would require that all dollar values listed on Form 13F be rounded to the nearest dollar, rather than to the nearest US$1,000 as is currently required.

Timing

These amendments to Form 13F will become effective on January 3, 2023.

Endnotes

[1] See Electronic Submission of Applications for Orders under the Advisers Act and the Investment Company Act, Confidential Treatment Requests for Filings on Form 13F, and Form ADV-NR; Amendments to Form 13F (SEC Release No. 34-95148) at 23.

[2] See id. at 23-4.

[3] See id. at 26, fn 74.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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