On March 3, 2025, the Division of Corporation Finance (the “Division”) of the Securities and Exchange Commission (the “SEC”) issued new guidance, effective immediately, significantly expanding the ability of companies to confidentially submit draft registration statements for non-public review with the Division. Previously, the non-public review process was available only to a certain subset of issuers. Under the expanded policy, the Division will now allow nearly all issuers to submit draft registration statements for confidential review. The expanded accommodations are part of an effort by the SEC to help further facilitate capital formation. 

Expanded Accommodations

The SEC’s expanded accommodations:  

• Broaden the non-public review process for the initial registration of a class of securities under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to include initial registration statements under Section 12(g) of the Exchange Act on Forms 10, 20-F, or 40-F, in addition to initial registration statements under the Securities Act of 1933, as amended (the “Securities Act”), and on Forms 10, 20-F or 40-F under Section 12(b) of the Exchange Act. Consistent with prior policy, an initial registration statement under the Securities Act and the Exchange Act will need to be publicly filed at least 15 days prior to any road show or, in the absence of a road show, at least 15 days prior to the requested effective date of the registration statement (in each case, together with all drafts of the registration statement previously confidentially submitted to the Division).¹
• Allow issuers to submit draft registration statements relating to subsequent registrations under the Securities Act and the Exchange Act for non-public review without regard to how much time has passed since the issuer became a public reporting company and without regard to the type of transaction or security being registered. Consistent with prior policy, non-public review will be limited to the initial draft registration statement submission. The issuer will also need to publicly file its registration statement (together with the previously submitted draft registration statement) at least two business days prior to any requested effective time and date (although the Division’s staff will consider reasonable requests to expedite this two business-day period).²
• Expand the non-public review process to include business combination transactions between special purpose acquisition companies (“SPACs”) and private operating companies (“de-SPAC transactions”) in situations where the SPAC is the surviving entity (commonly known as a “SPAC-on-top” structure), provided that the target company is eligible to submit a draft registration statement.
• Permit issuers to omit the name of the underwriter(s) from their initial draft registration statement submissions (when such information is otherwise required by Items 501 and 508 of Regulation S-K), provided that the issuer names underwriter(s) in subsequent submissions and public filings. 

Key Implications

The new SEC accommodations will have several implications for issuers, underwriters, and other market participants, including the following: 

• Issuers will now enjoy greater flexibility to submit draft registration statements to the Division for confidential review due to the SEC’s removal of time limitations on confidential submissions of draft registration statements for issuers and the expansion of the policy to any offering under the Securities Act or registration of a class of securities under either Section 12(b) or Section 12(g) of the Exchange Act. 
• Going forward, we may see the confidential submission process used by a much wider range of issuers and for a much wider range of transaction types than historically has been the case. This includes not only registration statements for capital raising transactions (which may now include registration statements of more seasoned issuers), but also more confidentially submitted registration statements relating to mergers and acquisitions, spin-offs, exchange offers, up-listings and other types of transactions.
• Most de-SPAC transactions should now qualify for the confidential draft registration statement review process regardless of the structure of the de-SPAC or how long the SPAC has been public.
• Issuers may decide to confidentially submit draft registration statements even earlier in the IPO process, given that underwriters do not need to be named in the initial draft registration statement submissions. Under the prior policy, the Division’s staff could “bedbug” or defer for review an initial DRS that did not name any underwriters; that will no longer be the case with the expanded policy. Issuers will need to identify underwriters in any subsequent draft registration statement submissions and public filings, however. It will be interesting to see how this change affects IPO market practice, if at all. For example, some issuers may want to start the Division’s review process before selecting their lead underwriters. On the other hand, lead underwriters typically play a significant role in an issuer’s drafting of its IPO registration statement, by among other things, helping the issuer shape its “story” from a marketing perspective and through the due diligence process.

¹In addition, an issuer that submits draft registration statements to the Division in connection with the registration of securities under Section 12(b) or 12(g) of the Exchange Act needs to publicly file its Exchange Act registration statement in a manner such that the full 30 or 60 day period under the Exchange Act, as applicable, will run prior to effectiveness. Issuers that qualify as emerging-growth companies (“EGCs”) may continue to submit draft registration statements for confidential review under the existing EGC process or take advantage of the enhanced accommodations of the Division. Foreign private issuers may elect to use procedures applicable to EGCs (if they qualify as an EGC) or use the confidential review procedures under the Division’s May 30, 2012 guidance applicable to foreign private issuers. 

²The Division’s prior policy referenced a 48-hour requirement.