SEC Expands Availability of Nonpublic Review Process for Registration Statements
March 7, 2025
On March 3, 2025, the Securities and Exchange Commission (SEC) announced that the SEC’s Division of Corporation Finance is expanding the availability of the nonpublic review process for issuers submitting draft registration statements under the Securities Act of 1933 or the Securities Exchange Act of 1934.
Background
Starting in 2012, the Jumpstart Our Business Startups Act of 2012 (commonly referred to as the JOBS Act) allowed emerging growth companies (EGCs)1 to submit draft registration statements relating to initial public offerings (IPOs) for review by the Division of Corporation Finance on a non-public basis.
In 2017, without altering the accommodations made for EGCs, the SEC made the nonpublic review process available to all IPOs as well as most offerings registered under the Securities Act within the first year of a company becoming a SEC reporting company.2
Unlike typical registration statements, draft registration statements submitted to the SEC for nonpublic review are not posted to EDGAR at the time of submission. Rather, the issuer is only required to publicly file its nonpublic draft registration statement(s) at the time of its first public registration statement filing (which must occur within a specified time prior to the effectiveness of the registration statement, as discussed in further detail below).
Consistent with its current practice, the SEC staff will continue to publicly release staff comment letters and issuer responses to those letters on EDGAR no earlier than 20 business days following the effective date of a registration statement.
2025 Enhancements to the Availability of the Nonpublic Review Process
Pursuant to the SEC’s latest announcement, the Division of Corporation Finance’s nonpublic review process will now be available for registration statements in connection with:
- the initial registration of a class of securities under the Exchange Act, including Section 12(b) and Section 12(g) registration statements on Forms 10, 20-F, or 40-F;
- the registration of any offering of securities under the Securities Act or a class of securities under the Exchange Act by an issuer who has been subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act for any period of time (no longer limited to issuers within one year of becoming subject to the reporting requirements); and
- a de-SPAC transaction where the SPAC is the surviving entity; provided, that the target is eligible to submit a draft registration statement.
In addition, the Division of Corporation Finance will now permit issuers to omit the name of any underwriter(s) from their initial draft registration statements (such disclosure is still required in subsequent submissions and public filings). This memorializes the informal position recently taken by SEC staff.
Timing of Requirement to Publicly File Registration Statement
Consistent with current practice, issuers taking advantage of the nonpublic review process must publicly file the registration statement within a specified timeframe, though the timeframe varies depending on the nature of the submission.
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Initial registration statements and related revisions submitted under the Securities Act and Exchange Act Section 12(b) and 12(g) |
Issuers must publicly file the registration statement (a) at least 15 days prior to any road show or (b) in the absence of a road show, at least 15 days prior to the requested effective date of the registration statement. |
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Initial registration statements and related revisions submitted under the Exchange Act Section 12(b) and 12(g) (Forms 10, 20-F and 40-F) |
Issuers must publicly file the registration statement prior to effectiveness, which (i) for registration statements under Section 12(b) of the Exchange Act, occurs automatically 30 days after the SEC receives approval of the company's listing from the national securities exchange; and (ii) for registration statements under Section 12(g) of the Exchange Act, occurs automatically 60 days after the company files the registration statement. |
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Subsequent Securities Act offerings and Exchange Act registration statements |
Issuers must publicly file the registration statement at least two business days prior to any requested effective time and date. |
Notwithstanding the timeframes above, the SEC notes that the timing of effectiveness of an issuer’s registration statement may be delayed if the SEC issues any comments on the public filing.
Nonpublic Review of Subsequent Registration Statements Limited to Initial Draft
After a company is subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act, the SEC staff will limit nonpublic review of draft registration statements for any subsequent Securities Act offering or Exchange Act registration to the initial draft registration statement submission. In this case, issuers may only respond to SEC staff comments on the nonpublic registration statement with a public filing rather than submitting a revised draft registration statement.
This is consistent with the SEC’s existing process for nonpublic review of subsequent draft registration statements (i.e., non-IPO draft registration statements).
Considerations for Companies Considering the Nonpublic Review Process
In the SEC’s press release announcing the expanded availability of the nonpublic review process, Cicely LaMothe, Acting Director of the SEC’s Division of Corporation Finance, noted that the goal of these changes is to “further support capital formation while retaining investor protections available to purchasers in public offerings.”
The SEC will be monitoring practices under these expanded accommodations and may modify, limit, or terminate the procedures at a future date. We will continue to monitor developments and are available to assist with any questions regarding eligibility and processes for taking advantage of these expanded accommodations.
1 EGCs are defined in Section 2(a)(19) of the Securities Act of 1933 as a company that has total annual gross revenues of less than US$1.235 billion during its most recently completed fiscal year and had not sold common equity securities under a registration statement as of December 8, 2011. A company continues to be an emerging growth company for the first five fiscal years after it completes an IPO, unless one of the following occurs: (i) its total annual gross revenues are US$1.235 billion or more; (ii) it has issued more than US$1 billion in non-convertible debt in the past three years; or (iii) it becomes a “large accelerated filer,” as defined in Exchange Act Rule 12b-2.
2 SEC’s Division of Corporation Finance Expands Popular JOBS Act Benefit to All Companies, SEC Release No. 2017-121 (June 30, 2017).
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