Companies that have obtained confidential treatment orders (“CTOs”) for material contracts must be cognizant of when these CTOs expire and must continue to file extension applications prior to the expiry of existing CTOs to protect the confidential information from public release pursuant to SEC reporting requirements or Freedom of Information Act requests. This has historically been a tedious process, but the SEC has taken steps to streamline and reduce the administrative burden on companies seeking extensions through the availability of the short form extension application and, most recently, in the form of amended guidance around the process for extensions of a CTO. In this recent SEC guidance, the SEC reverses its position on the availability of transitioning to the redacted exhibit rules. Companies with expiring CTOs for contracts that remain material now have the following options:

CTOExtensionGraphic

In a reversal from the previous guidance, now companies with expiring orders issued more than three (3) years ago may and likely will choose to transition compliance with the redacted exhibit rules (available here) by refiling a copy of the redacted contract as an exhibit in the company’s next Exchange Act report after the expiration of the CTO that complies with the legending and other requirements of the redacted exhibit rules.

This option for expiring orders over three years old, together with the availability of the short form application for expiring orders under three years old, greatly reduce administrative burden for companies seeking extensions. As a reminder, the short form application (available here) was intended to streamline extension requests and is a one-page document companies can submit by email to the SEC at This email address is being protected from spambots. You need JavaScript enabled to view it. to affirm that the information from the most recent application continues to be true, complete, and accurate regarding the information for which confidential treatment was sought. Provided the SEC does not have questions or follow-ups on the request, they will indicate approval by posting the order granting confidential treatment on the company’s filing history on EDGAR.

For more information around applying for and maintaining confidential treatment of commercially sensitive information, please reach out to a member of our Securities & Capital Markets team.


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