SEC Broadens Focus on and Requirements for 13D Amendment Disclosure

The SEC recently announced settlements of charges against insiders relating to three different going private transactions. The settlement orders (the “Orders”) reflect a general increased focus by the SEC on insiders’ compliance with Schedule 13D amendment requirements in connection with going private transactions (and possibly other extraordinary transactions), as well as possibly expanded requirements for disclosure of steps taken during the preliminary stage of consideration of a transaction. The charges were against eight directors, officers or major stockholders for their respective failures to file timely amendments to their Schedule 13D filings to disclose their plans to take the companies private. The charges were based on steps these parties had taken in furtherance of the going private transactions, but that had only been disclosed months (or in some cases years) afterward in the proxy statements or Schedule 13E-3 statements relating to the transactions.

Issue Raised.

It has been generally accepted practice that, when a 13D filer discloses its purpose in making an investment, plans relating to a covered item in the Schedule (such as a merger, a going private transaction, or seeking control) need not be disclosed until a definite plan has been formulated. Generally, the practice has been to provide generic disclosure that one or more disclosable transactions may be considered and then to file a 13D amendment when a proposal for the transaction is actually made. The Orders indicate the SEC’s view that earlier disclosure—of steps short of actual formulation of a plan and making of a proposal—may be required, raising the issue to what extent a 13D filer must disclose steps taken to determine whether to adopt a plan or proposal with respect to a disclosable transaction. There is no bright-line test as to the required disclosure under the SEC’s view and the same lack of precise guidance is evident in court decisions confronting the issue. The decisions of the courts have varied and have tended to be very fact-specific. The case law suggests, however, that the courts may take a narrower view as to when disclosure is required than the SEC has (at least with respect to one of the transactions covered in the Orders, as discussed below).

Specifically, the Orders indicate the views of the SEC that:

• Amendment is required when a plan has been formulated—even if before the proposal has been made. A Schedule 13D must be amended when a “plan or proposal” has been formulated with respect to a disclosable matter (such as a going private transaction), even if before a proposal for the transaction has been made—and even when the 13D on file discloses the possibility of future consideration of such a plan or states that the filing party reserves the right to engage in certain transactions.
• Amendment may be required even before a plan has been formulated—if there has been a material change in the facts disclosed. Steps short of formulation of a plan or proposal with respect to a transaction will trigger the obligation to file a Schedule 13D amendment if there has been a material change in the facts disclosed in the 13D on file. Thus, a generic disclosure that a transaction may be considered must be updated if the filer is taking steps beyond mere consideration (although what types of steps will be deemed to be more than mere consideration is the issue).

Critical points.

• More SEC emphasis on steps taken during the consideration of a possible transaction, prior to a proposal being made. The SEC’s announcement of the Orders appears to be intended to put the marketplace on notice that the SEC will have an increased emphasis on compliance with the 13D amendment obligations. The Orders suggest that the SEC will be increasing its focus on steps taken during the consideration of a possible going private transaction (or, presumably, other extraordinary transaction) to determine whether those activities engaged in before a going private proposal is made are sufficiently significant to have triggered a 13D amendment obligation.
• Lack of clarity; no bright-line test. There is no doubt that, once a plan or proposal is formulated, it must be disclosed; however, there is no bright-line test for what steps short of formulation of a plan or proposal require disclosure. The Orders make clear the SEC’s view that steps short of the submission of a going private proposal must be disclosed if they represent a material change in the disclosure in the 13D on file. However, again, there is no bright-line test as to which steps would represent a material change in the typical generic disclosure that states that certain transactions may be considered.
• Retrospective view; and relationship to proxy statement disclosure. The SEC indicated in the Orders that its 13D disclosure concerns arose from its review of the disclosure in the proxy statements and Schedule 13E-3 statements describing the background of each of the transactions. Of course, the SEC will always be judging the adequacy of 13D disclosure in hindsight and, while a party may view a particular step taken as too preliminary to require disclosure, the SEC’s judgment may be influenced by knowledge of the nature and timing of the steps that followed. The general approach to proxy statement disclosure has been that stockholders considering whether to approve a transaction should have as much information as possible on which to base their decision and that companies should seek to avoid disclosure violations by providing more, rather than less, disclosure about the background of a transaction. Thus, detail (beyond the material information that may be legally required) is typically included in the narrative of events relating to the transaction. When making disclosure decisions, a company should take into account how the events will be viewed in hindsight as part of the full narrative of events included in the proxy statement. Since various details included in the proxy statements were the basis for the Orders, when drafting the proxy statement, companies should consider what effect the proxy statement disclosure will have on the SEC’s view, in retrospect, of the adequacy of the 13D disclosure. Companies may wish to consider whether disclosure in proxy statements should avoid immaterial facts (such as emails and conversations that occur during the preliminary stages) that will raise questions about 13D compliance. Obviously, however, it would make no sense to risk a proxy statement violation in an effort to avoid a 13D violation.
• Key step: discussions with others. Depending on the facts and circumstances, based on the Orders, discussions with other parties could trigger a 13D amendment obligation, depending on the purpose of the discussions, their detail and their outcome. We note, for example, that discussions with possible financing sources to determine the feasibility of financing should not require disclosure until at least the financing source indicates its willingness to proceed and provides, at a minimum, an outline of the terms. A review by an investment banker as to the feasibility of a transaction should be subject to the same analysis. On the other hand, indicating to the target a serious consideration of making a bid would push the needle closer to required disclosure.
• Disclosure of very preliminary steps; advisors’ role. There is a risk that the SEC’s “new” view could lead to required disclosure of preliminary and tentative consideration of possible transactions—with significant consequences for corporate and personal planning. A practical issue is that the emails, conversations and considerations that occur at preliminary stages of thinking about a possible transaction often occur before advisors are consulted. Legal advisors should seek to make their clients sensitive to these disclosure issues so that they will be aware before any transaction is potentially considered.
•  Changes in generic disclosure. The SEC’s position is that generic disclosure covering the possibility of consideration of various transactions must be amended to be updated when a specific transaction is actually being considered. Can a new form of generic disclosure be developed that provides a workable framework to satisfy concerns about disclosure of preliminary, non-substantial, non-material activity relating to a possible transaction? Would it be possible, for example, to craft general disclosure that would distinguish between (a) acts that constitute consideration of the feasibility and desirability of a plan or proposal and so are preparatory to adopting a plan or proposal (where generic disclosure should be sufficient) and (b) steps that are significant (for which specific disclosure would be appropriate)?
• Should not affect 13(d) or 16(b) “group” issue. We note that the SEC’s view that preliminary discussions may require earlier disclosure in the 13D context (as reflected in Transaction #1, discussed below) should not affect the SEC’s view of when a 13(d) or 16(b) “group” is formed, as the case law has been clear that a group is not formed until there is an actual agreement.

Background on Schedule 13D requirements.

U.S. securities laws and regulations require that:

• Original filing. Any person or group that has acquired beneficial ownership of more than 5% of the stock of a public company must file within ten days of the acquisition a Schedule 13D with the SEC, publicly disclosing, among other things, the “purpose” of the acquisition, including any “plan or proposal” to cause an extraordinary corporate transaction (such as a going private transaction). “Passive” investors meeting the ownership threshold, who do not have any such plans, usually file a short-form Schedule 13G, and then file a 13D if they later develop such plans.
• Amendment. A person who has filed a Schedule 13D must amend the filing within two business days after any “material” change or development affecting the disclosures in the filing. If an original 13D filing discloses that the filer has no plans to cause an extraordinary transaction, for example, but later formulates a plan or proposal, an amendment must be filed to update the disclosure. There is no specific standard or bright line test for what constitutes formulation of a plan or proposal. Moreover, the SEC’s position, as reflected in the Orders, is that an amendment is required even before a plan is formulated if there is a “material change” in the facts disclosed in the 13D.

The question of whether a 13D filer had a plan or proposal respecting a merger of the target company was frequently litigated in the 1970s and 1980s. The outcomes of the litigation were very fact intensive and no bright lines for disclosure existed at that time or have been developed since. The courts have held generally that 13D disclosure of an acquiror’s purpose to obtain control is required even if there is no present plan to implement the control purpose. At the same time, the courts have struggled with the degree of specificity which must exist before an idea or an option under consideration or discussion rises to the level of a “plan or proposal” which must be disclosed. There has not been much in the way of recent litigation on 13D disclosure issues. The jurisprudence that exists, however, suggests that the courts may take a narrower view of the 13D amendment obligations than the SEC’s view reflected in the Orders (in particular with respect to Transaction #1, as discussed below).

The Orders—what types of actions may represent steps that are sufficient to trigger an amendment obligation. The Orders reflect the SEC’s view that the following actions, considered together, constituted sufficient steps toward formulating a plan to require that a 13D amendment had to be filed:

• Transaction #1: The proxy statement for the going private transaction disclosed that the CEO/Chairman of the company (who was also a major stockholder) had begun to consider privatizing the company in October 2012. He did not file a 13D amendment until August 2013, when the plan was announced. The SEC took the view that the following steps he took in the month following the initial consideration of privatization triggered a 13D amendment filing obligation:
  • “studied the feasibility” of a going private transaction;
  • “reviewed” other going private transactions involving China-based issuers; and
  • discussed a going private transaction with two other significant stockholders (who ultimately formed part of the consortium of shareholders that participated in the going private transaction).

The Order stated that the steps listed above were sufficient in the SEC’s view to trigger a 13D amendment obligation. In addition, as stated in the Order, during the subsequent two month period, the following additional steps were taken:

• discussions with attorneys and with other stockholders about submitting a going private proposal to the company’s board; and
• submission of a “preliminary non-binding letter” to the board proposing to take the company private at a stated price per share.

We note that the three steps described by the SEC as having triggered an amendment obligation were of a nature that typically would have been considered to be too preliminary in nature to trigger an amendment obligation. Certainly, in almost all cases, studying the feasibility of a transaction and reviewing other going private transactions would be considered too preliminary to require disclosure. Thus, it appears that the discussions with the two significant stockholders were the key factor in the SEC’s view that a 13D amendment was required at this point. (The Order does not indicate whether the SEC viewed the CEO/Chairman and the two stockholders with whom he had discussions as having formed a “group” at this point. Formation of a group certainly would require a 13D amendment.) Possibly, the SEC was also influenced here by the fact that discussions were held with additional stockholders and a proposal was submitted within just two months after these steps had been taken.

In any event, Transaction #1 is more surprising than the other Transactions covered in the Orders in the preliminary nature of the steps that the SEC characterized as requiring a 13D amendment.

• Transaction #2: The proxy statement for the going private transaction, filed in September 2014, disclosed that the company had begun to consider privatizing the company in early 2011. The insiders had filed 13D amendments in April 2014 or, in most cases, in June 2014, when the proposal was made public. The SEC took the position that by January 2014 the insiders had taken the following specific steps, which indicated that they intended to take the company private and triggered an obligation to file a 13D amendment:
  • “had discussions” with the company regarding the advisability of and reasons for a going private transaction;
  • informed the company that the insider would support a going private transaction; and
  • “assisted in the effort” toward a going private transaction by securing waivers from certain other shareholders to remove a registration requirement on certain preferred stock.

The SEC noted these additional steps were taken over several months thereafter:

• considered a reverse stock split as the mechanism for a going private transaction;
• “work[ed] with” the company to obtain a valuation and fairness opinion for the reverse stock split;
• discussed with officers and directors a valuation proposal received from a third party;
• received information from board meetings discussing valuation issues, ratio stock split analyses, public company cost estimates and the preliminary proxy statement; and
• assisted the company with stockholder vote projections on the reverse stock split and going private transaction.

One of these insiders, who was a major stockholder and also a director of the company, took the following additional steps during those months:

• requested that management engage outside counsel to consider the process and costs involved in a going private transaction;
• discussed engaging independent financial advisors to give a fairness opinion;
• agreed that a reverse stock split was the most desirable of the alternatives for taking the company private and deciding that management should develop recommendations as to specific terms;
• reviewed and discussed an independent valuation proposal as part of the going private effort and reverse stock split; and
• participated in board meetings at which the directors discussed valuation issues, ratio stock split analyses, public company cost estimates, and the preliminary proxy statement for the going private transaction.

• Transaction #3: The corporate parent of a subsidiary did not file a 13D amendment until eight months after it had taken the following steps, which the SEC viewed as steps that triggered an amendment filing obligation:
  • submitted “a concept paper” about going private to its subsidiary; and
  • informed the subsidiary that its intention was to privatize the subsidiary.

(We note that it is unclear why the corporate parent here took these steps. A corporate controller would not have any reason to take steps requiring disclosure in advance of its having clearly formulated a plan.)