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SEC Revises Beneficial Ownership Reporting Rules
On Oct. 10, 2023, the Securities and Exchange Commission (SEC) adopted long-awaited rule amendments to Schedule 13D/13G reporting of beneficial ownership. Among other things, the amended rules shorten filing deadlines, clarify disclosure requirements with respect to cash-settled derivatives, and require that Schedules 13D and 13G be filed in a structured, machine-readable data language.
Although the SEC's press release touts that the amendments are intended to "update[] Schedules 13D and 13G reporting requirements for modern markets, ensure[] investors receive material information in a timely way, and reduce[] information asymmetries," the amendments do not redress significant gaps in the disclosure regime between activist stockholders and other market participants, leaving issuers and investors alike to continue to wonder (among other things) when exactly coordinated activist investment activity constitutes a disclosable "group" or "arrangement."
This article identifies certain information asymmetries in the SEC's beneficial ownership reporting rules, which permit activist investors to surreptitiously acquire stock without publicly disclosing their acquisitions, discusses the extent to which those information asymmetries are addressed (or not) under the SEC's recent rule amendments, and considers whether additional rule amendments or SEC guidance continue to be necessary to provide the investing public with information necessary to identify and understand the intentions of investors who hold large positions with the potential to materially impact corporate control.
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