SEC Amends Confidential Treatment Extension Guidance

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:


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 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.

Attorney Advertising. Prior results do not guarantee a similar outcome. This publication is provided as a service to clients and friends of Harter Secrest & Emery LLP. It is intended for general information purposes only and should not be considered as legal advice. The contents are neither an exhaustive discussion nor do they purport to cover all developments in the area. The reader should consult with legal counsel to determine how applicable laws relate to specific situations. ©2020 Harter Secrest & Emery LLP