SEC Expands Confidential Review Process for Draft Registration Statements

On March 3, 2025, the Securities and Exchange Commission announced significant changes to its confidential review process for draft registration statements. These enhancements aim to provide greater flexibility to issuers seeking to go public or register securities, further facilitating capital formation while maintaining investor protections. The new rules build upon past expansions in 2017 and extend the benefits of confidential filing to a broader range of companies and transactions.

Background: The Evolution of Confidential Filings

The concept of confidential, nonpublic review of draft registration statements was first introduced under the Jumpstart Our Business Startups Act in 2012. This law allowed Emerging Growth Companies to submit draft IPO registration statements for SEC review before public disclosure. In 2017, the SEC expanded this privilege to all issuers, enabling any company preparing for an IPO to engage in confidential discussions with the SEC before committing to a public filing. The 2025 expansion further broadens these accommodations.

Key Changes in the Enhanced Accommodations

The SEC's latest expansion introduces four major changes. First, expanded eligibility: previously, issuers seeking to register a class of securities under the Exchange Act could only use the confidential review process if filing under Section 12(b). The new rules extend this process to include Section 12(g) registration statements filed on Forms 10, 20-F, and 40-F. Second, no time restrictions for subsequent offerings: the enhanced accommodations remove the previous 12-month restriction, allowing companies to file confidential draft statements at any time. Third, enhanced confidentiality for de-SPAC transactions: if the target company in a de-SPAC deal would otherwise be eligible to submit a draft registration statement, the SPAC-on-top structure can now take advantage of confidential review. Fourth, omission of underwriter names: issuers are now permitted to omit the name of underwriters from their initial draft registration statements, with disclosure required in subsequent filings.

Benefits for International Companies

The SEC's expanded accommodations provide several advantages for foreign private issuers and other international companies looking to access U.S. capital markets. Foreign companies can engage in confidential discussions with the SEC, assessing regulatory requirements before making a public commitment. Foreign targets in de-SPAC deals can utilize the confidential review process. The previous 12-month restriction on secondary offerings has been eliminated. The ability to submit draft registration statements under Forms 10, 20-F, and 40-F benefits companies from Canada, Europe, and Asia seeking to list in the U.S.