US SEC allows for increased management discretion in new amendments to Regulation S-K items 101, 103 and 105

On August 26, 2020, the US Securities and Exchange Commission (SEC) announced the adoption of amendments intended to modernize public company disclosures pursuant to Items 101 (description of business), 103 (legal proceedings) and 105 (risk factor disclosures) of Regulation S-K, a prescribed regulation under the US Securities Act of 1933 that sets forth reporting requirements for various SEC filings by public companies. In a press release announcing the amendments, the SEC expressed its intent for the new amendments to "discourage repetition and reduce the disclosure of information that is not material."

To that end, the amendments simplify a public company's substantive disclosures and continue the SEC's transition towards a principles-based disclosure framework. This ongoing paradigm shift is based on the idea that current prescriptive disclosures (i.e., requiring uniform information from all applicable companies) may ultimately be less informative and more burdensome than allowing a company's management and board of directors to present disclosures regarding the company's business, financial condition and future prospects tailored to reflect the business's particular circumstances.

A summary of the new amendments and their corresponding existing provisions:

Item 101 (Description of business)

(a) General development of business (and corresponding sub-item (h))

Amendments

• Make Item 101(a) largely principles-based, requiring disclosure of information material to an understanding of the general development of the business and eliminating the previously prescribed five-year timeframe;
• Replace the previously prescribed five-year timeframe with a materiality framework (as well as the related three year time frame prescribed by Item 101(h) for smaller reporting companies); and
• Permit a registrant, in filings made after a registrant's initial filing, to provide only an update of the general development of the business focused on material developments that have occurred since its most recent full discussion of the development of its business, which will be incorporated by reference.

Existing provision

Requires a description of the general development of the business of the registrant during the past five years, or such shorter period as the registrant may have been engaged in business.

(c) Narrative description of business

Amendments

• Clarify and expand its principles-based approach, with a non-exclusive list of disclosure topic examples drawn in part from topics currently contained in Item 101(c);
• Include, as a disclosure topic, a description of the registrant's human capital resources to the extent such disclosures would be material to an understanding of the registrant's business; and
• Refocus the regulatory compliance disclosure requirement by including as a topic all material government regulations, not just environmental laws.

Existing provision

Requires a narrative description of the business done and intended to be done by the registrant and its subsidiaries, focusing upon the registrant's dominant segment or each reportable segment about which financial information is presented in its financial statements. To the extent material to an understanding of the registrant's business taken as a whole, the description of each such segment must include disclosure of several specific matters.

Item 103 (Legal proceedings)

Amendments

• Expressly states that the required information may be provided by hyperlink or cross-reference to legal proceedings disclosure located elsewhere in the document to avoid duplicative disclosure; and
• Implements a modified disclosure threshold for certain governmental environmental proceedings resulting in monetary sanctions that increases the existing quantitative threshold for disclosure of those proceedings from US$100,000 to US$300,000, but that also affords a registrant some flexibility by allowing the registrant, at its election, to select a different threshold that it determines is reasonably designed to result in disclosure of material environmental proceedings, provided that the threshold does not exceed the lesser of US$1 million or one percent of the current assets of the registrant.

Existing provision

Requires disclosure of any material pending legal proceedings including the name of the court or agency in which the proceedings are pending, the date instituted, the principal parties thereto, a description of the factual basis alleged to underlie the proceeding and the relief sought. Similar information is to be included for any such proceedings known to be contemplated by governmental authorities.

Contains a threshold for disclosure based on a specified dollar amount (US$100,000) for proceedings related to Federal, State, or local environmental protection laws.

Item 105 (Risk factors)

Amendments

• Requires summary risk factor disclosure of no more than two pages if the risk factor section exceeds 15 pages;
• Refines the principles-based approach of Item 105 by requiring disclosure of "material" risk factors; and
• Requires risk factors to be organized under relevant headings in addition to the subcaptions currently required, with any risk factors that may generally apply to an investment in securities disclosed at the end of the risk factor section under a separate caption.

Existing provision

Requires disclosure of the most significant factors that make an investment in the registrant or offering speculative or risky and specifies that the discussion should be concise, organized logically, and furnished in plain English. The Item also states that registrants should set forth each risk factor under a subcaption that adequately describes the risk. Additionally, Item 105 directs registrants to explain how each risk affects the registrant or the securities being offered and discourages disclosure of risks that could apply to any registrant.

These amendments are the first material changes to these respective Regulation S-K items in 30 years. They were approved and adopted by the Commission in a 3-2 vote. Commissioner Crenshaw and Commissioner Lee dissented, citing continuing inadequacies with regard to human capital, diversity and climate change disclosures.

The amendments were first proposed by the SEC on August 8, 2019, as part of the recommendations resulting from the SEC staff's 2016 Report on Review of Disclosure Requirements in Regulation S-K, which itself was mandated by the JOBS Act. The principles underlying the amendments were first part of the Disclosure Effectiveness Initiative commenced by that 2016 report, which sought to improve the Regulation S-K disclosures for both investors and public companies. The amendments will become effective 30 days after publication in the Federal Register, which is currently pending.

For more information regarding these amendments and how they will affect your company's disclosures, please consult with the Norton Rose Fulbright attorney with whom you work.