SEC Issues Updated Guidance on Confidential Treatment Requests

January 6, 2020

On December 19, the SEC issued updated guidance to assist registrants with the submission of “traditional” confidential treatment requests under Rules 406 and 24b-2.  Confidential treatment applications under these rules used to be the primary method for companies to protect confidential information filed in materials contracts.  As The Ticker reported at the time, the SEC amended Regulation S-K in March 2019 to allow registrants to omit confidential information from most exhibits without filing a confidential treatment request.  Nonetheless, the traditional CTR regime described in the updated guidance remains available to registrants.  The updated guidance also applies to those filings, such as Schedule 13D or exhibits required by Item 1016 of Regulation M-A, where confidential treatment applications are still the only available method to protect private information in filed exhibits.

The most notable aspect of the updated guidance is a reference to the Supreme Court’s decision in Food Marketing Institute v. Argus Leader Media, 139 S.Ct. 2356 (2019), which the SEC suggests may be helpful in establishing that the omitted information is exempt from the Freedom of Information Act (FOIA).  Specifically, the case addresses the meaning of “confidential” within the context of the FOIA’s Exemption 4, which shields from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”

The updated guidance also repeats the SEC’s April 16, 2019, announcement of a streamlined procedure for registrants to apply for an extension of confidential treatment for previously granted requests under the traditional CTR regime.

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