SEC Rules Updated to Modernize and Simplify Disclosures: Act FAST to update upcoming Form 8-Ks, 10-Qs and 10-Ks

Akin Gump Strauss Hauer & Feld LLP

Recently, the Securities and Exchange Commission (SEC) adopted amendments (the Amendments) to modernize and simplify disclosure requirements in Regulation S-K (and related rules and forms). Consistent with the SEC’s mandate under the 2015 Fixing America’s Surface Transportation (FAST) Act, these Amendments are intended to eliminate outdated and unnecessary disclosures while improving the readability and navigability of company filings. According to the SEC, these Amendments should reduce the costs and burdens on public companies while continuing to provide investors with material information. The SEC also adopted parallel amendments to several rules and forms applicable to investment companies and investment advisors to provide a consistent set of rules to govern incorporation by reference and hyperlinking to the Amendments published in the Federal Register on April 2, 2019.

Below is a summary of the most notable changes for public companies resulting from the Amendments.


Redaction of Confidential Terms Without Filing a Confidential Treatment Request—Items 601(a)(6), (b)(2) and (b)(10) of Regulation S-K. As a result of the Amendments, a company may omit confidential information in material contracts and certain other exhibits filed with the SEC without submitting a confidential treatment request to the staff of the Division of Corporation Finance (the SEC Staff) of the SEC so long as the information is (i) not material, and (ii) would likely cause competitive harm to the company if publicly disclosed.

Consistent with current SEC rules, when filing a redacted exhibit, a company must:

  • Include a prominent statement on the first page of the redacted exhibit that certain identified information has been excluded from the exhibit because it is not material and would likely cause competitive harm to the company if publicly disclosed.
  • Indicate in the exhibit index that portions of the exhibit or exhibits have been omitted.
  • Indicate by brackets where the information is omitted from the filed version.

Consistent with existing SEC Staff guidance, companies should narrowly tailor redactions, as SEC Staff may monitor redactions and request, in certain instances, a copy of the unredacted agreement along with written analysis to support the redactions.

Additionally, the Amendments codify the current SEC Staff practice to permit companies to redact personally identifiable information (such as social security numbers, bank account numbers, home addresses and similar information) without filing a confidential treatment request if such disclosure would constitute a clearly unwarranted invasion of personal privacy. Companies availing themselves to this accommodation may provide appropriate redactions and are not required to include an analysis supporting the redactions at the time of filing. (Effective April 2, 2019)

Two-Year Look-Back Period For Material Contracts Limited to Newly Reporting Companies—Item 601(b)(10) of Regulation S-K. Currently, under Item 601(b)(10)(i) of Regulation S-K, companies are required to file every contract not made in the ordinary course of business that is material to the registrant and (i) is to be performed in whole or in part at or after the filing of the registration statement or report, or (ii) was entered into not more than two years before such filing. The Amendments limit the two-year look-back period only to newly reporting companies. Companies (other than newly reporting companies) will not be required to file material contracts that were made within two years of the applicable registration statement or report if such contracts have already been fully performed. All companies will still need to file, as exhibits, material contracts not made in the ordinary course of business if they are to be performed, in whole or in part, at or after the filing of the registration statement or report. (Effective May 2, 2019)

Omission of Schedules and Similar Attachments to Exhibits—Item 601(a)(5) of Regulation S-K. The Amendments provide that companies will no longer be required to file schedules or similar attachments to any exhibit if they do not contain information material to an investment or voting decision and that information is not otherwise disclosed in the exhibit or disclosure document. When such schedules or attachments are omitted, the filed exhibit must briefly identify the contents of such omitted schedules or attachments (if such a list is not already a part of the exhibit, such as, in such agreement’s table of contents). This extends the accommodation to all exhibits that is currently provided for liquidation, reorganization, acquisition or succession plans filed pursuant to Item 601(b)(2) of Regulation S-K. (Effective May 2, 2019)

Management’s Discussion and Analysis—Regulation S-K, Item 303(a)

Item 303(a) of Regulation S-K currently requires companies to provide two comparative year-to-year discussions in their management’s discussion and analysis (MD&A) that cover the three fiscal years covered by their financial statements. The Amendments will permit companies to exclude discussion in their MD&A related to the earliest of the three years if they have already included this discussion in a prior filing. If companies exclude a discussion of the earliest year, however, they must identify the location in the prior filing where the omitted discussion may be found. The Amendments do not affect smaller reporting companies, as they may limit their disclosure to the two-year period covered in their financial statements. Similarly, the Amendments would not affect emerging growth companies that elect to provide two years of audited financial statements. (Effective May 2, 2019)

Other Changes

Description of Physical Properties—Item 102 of Regulation S-K. A company will only need to provide disclosure about physical properties that are material to the company. Additionally, companies will be permitted to provide descriptions of physical properties on a collective basis. (Effective May 2, 2019)

Description of Risk Factors—Item 503(c) of Regulation S-K. The requirement to disclose risk factors will be moved from the current Item 503(c) of Regulation S-K to a new Item 105 to reflect the fact that since 2005 the requirement for risk factor disclosure has been extended beyond offering documents to periodic reports and registration statements. Additionally, the generic risk factor examples currently listed in Item 503(c) will be eliminated consistent with the emphasis on principle-based risk disclosure by companies that are precisely calibrated to their particular circumstances. (Effective May 2, 2019)

Description of Registrant’s Securities—Item 601(b)(4). Currently, Item 202 of Regulation S-K requires companies to describe, in their registration statements, each class of their securities registered under Section 12 of the Exchange Act of 1934, as amended (the Exchange Act). The Amendments extend this requirement to require such disclosure in an exhibit to Form 10-K filings. After the first such exhibit is filed, future disclosure may be made by reference to such first exhibit. (Effective May 2, 2019)

Cross-Referencing Nonfinancial Statement Information from Financial Statements. The Amendments provide that financial statements will no longer be permitted to cross-reference to disclosures in other parts of a filing or incorporate by reference to such disclosures unless explicitly permitted or required by SEC rules, U.S. generally accepted accounting principles (GAAP) or the International Financial Reporting Standards Foundation (IFRS). (Effective May 2, 2019)

Changes in Prospectus Content. Companies may omit the offering price on the cover page of the prospectus if providing such a specific offering price would be impractical and the offering price can be determined by a particular formula or method described in the prospectus. If the offering price is omitted, the cover page should include a cross-reference to the location of such method or formula in the prospectus. Additionally, companies may omit the portion of the “red herring” legend in prospectuses relating to state law for offerings not prohibited by state securities laws. (Effective May 2, 2019)

Form Amendments

On the cover page for annual reports on Forms 10-K, 20-F and 40-F as well as quarterly reports on Form 10-Q and current reports on Form 8-K, companies will be required to disclose the national exchange or principal U.S. market for their securities, the trading symbol and the title of each class of securities registered under Section 12(b) of the Exchange Act. Companies will be also required to tag cover-page data in Inline eXtensible Business Reporting Language (iXBRL) for certain filings and use hyperlinks, instead of filing, for information that is incorporated by reference and is available on the Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system. Investment company filings will now be required to submit certain filings in HyperText Markup Language (HTML) format and include hyperlinks to exhibits and other information incorporated by reference.

Additionally, the required disclosure regarding delinquent Section 16 filers is being removed from the cover page of Form 10-K. In addition, the current heading required under Item 405 of Regulation S-K, “Section 16(a) Beneficial Ownership Reporting Compliance,” will be changed to “Delinquent Section 16(a) Reports.”

Effective Date:

The requirement to tag data on the cover pages of certain current and periodic reports filed pursuant to the Exchange Act, will be applicable to reports for fiscal periods ending on or after:

  • June 15, 2019, in the case of large accelerated filers who prepare their financial statements in accordance with U.S. GAAP.
  • June 15, 2020, in the case of accelerated filers who prepare their financial statements in accordance with U.S. GAAP.
  • June 15, 2021, in the case of all other filers who are subject to the cover-page tagging requirements, including foreign private issuers who prepare their financial statements in accordance with IFRS.

Note that domestic form filers will be required to comply beginning with their first Form 10–Q for a fiscal period ending on or after the applicable compliance date above, as opposed to the first filing for a fiscal period ending on or after that date.

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.

© Akin Gump Strauss Hauer & Feld LLP | Attorney Advertising

Written by:

Akin Gump Strauss Hauer & Feld LLP

Akin Gump Strauss Hauer & Feld LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.