SEC Broadens Confidential Filing Options: What Companies Need to Know

Public offerings and registration statements have always been high-stakes events for companies. The disclosure process can expose sensitive information long before a company is ready, creating competitive risks and reputational concerns. To address this, the Securities and Exchange Commission (SEC) has gradually allowed more companies to submit draft registration statements confidentially.

On March 3, 2025, the SEC’s Division of Corporation Finance took another significant step: it broadened confidential filing eligibility to cover all registration statements. This policy shift allows companies across the spectrum—from newly formed startups to seasoned issuers—to manage disclosure more strategically while still ensuring investor protection.

So, what exactly has changed, and how does this impact businesses considering public filings? Let’s break it down.

A Quick Look Back: From the JOBS Act to Now

The confidential submission process began with the Jumpstart Our Business Startups (JOBS) Act of 2012, which created the “emerging growth company” (EGC) category. EGCs—essentially smaller companies with annual revenues below a set threshold—were permitted to file draft registration statements privately when pursuing an initial public offering. This confidentiality helped them test the waters without prematurely revealing financials or business strategies.

In 2017, the SEC expanded this option, allowing all issuers (not just EGCs) to confidentially submit registration statements for IPOs, certain follow-on offerings, and Exchange Act Section 12(b) registrations. However, Section 12(g) filings were excluded.

The March 2025 expansion builds on these prior steps, providing a much wider scope of confidentiality.

The New Policy: Who Benefits and How

Under the 2025 update, the SEC now allows confidential draft registration statements for:

1. Initial Exchange Act registrations under both Section 12(b) and Section 12(g), including filings on Forms 8-A, 10, 20-F, and 40-F.
2. All Securities Act registration statements, no matter how long ago the company went public.
3. De-SPAC transactions (Forms S-4 and F-4) where the SPAC is the surviving entity, provided the target also qualifies to submit confidentially.
4. Submissions without underwriter names initially, as long as underwriters are disclosed in later versions and in public filings.

This development means that whether a company is preparing for its very first registration, structuring a merger, or issuing follow-on securities years after an IPO, it now has the option to start the process outside of the public eye.

Why Confidentiality Matters

For many companies, public filings come with significant risks:

• Competitive exposure: Early disclosure can reveal business models, product strategies, or financial conditions to rivals.
• Market perception: If a company pulls its IPO or delays a filing after public submission, investors may interpret it as a failure, damaging credibility.
• Flexibility: Confidential filings allow issuers to test regulatory waters, refine documents, and resolve SEC comments before going public.

By expanding eligibility, the SEC has given companies of all sizes more control over the timing and optics of their public disclosures.

Procedural Requirements Remain in Place

Even with these expanded rights, confidentiality is not unlimited. Issuers must follow certain timing rules:

• For initial registrations, the company must publicly file its registration statement and all prior confidential drafts at least 15 days before a roadshow (or, if no roadshow, 15 days before effectiveness).
• For follow-on offerings, the public version and prior drafts must be filed at least two business days before effectiveness.
• For Exchange Act registrations, confidential drafts must be made public prior to effectiveness.

Companies also remain subject to the same content requirements as public filings, including financial statement obligations and applicable disclosure standards.

How to File Confidentially

Confidential submissions are made through the SEC’s EDGAR system, using the “confidential” setting during submission.

To later meet the public filing requirement, issuers can either:

1. File prior confidential drafts as exhibits to their public submission, or
2. Change the EDGAR setting on prior drafts from “confidential” to “public.”

This process allows flexibility—companies do not need to resubmit confidential material as long as it becomes publicly accessible before effectiveness. Importantly, filing fees are only due at the time of the public filing, easing cash flow concerns during early preparation.

Special Cases: Foreign Issuers and De-SPACs

The policy also clarifies treatment for foreign private issuers and SPAC transactions:

• Foreign issuers retain the option to use confidential submissions if they qualify as EGCs, or under other circumstances already recognized by the SEC (such as conflicting foreign laws).
• De-SPAC deals are now expressly included if the SPAC survives, but companies must confirm eligibility on both sides of the transaction.

These clarifications highlight the SEC’s intent to bring consistency across global capital markets and evolving transaction structures.

Strategic Takeaways for Companies

The March 2025 expansion represents more than just administrative flexibility—it reshapes how companies can approach going public and raising capital. Here are some key takeaways:

• Broader access: Confidentiality is no longer a privilege limited to EGCs or IPO-stage companies.
• Reduced risk: Businesses can explore capital markets without prematurely exposing strategies or inviting speculation.
• Enhanced planning: Legal and financial teams can fine-tune disclosures before facing investor and media scrutiny.

For companies considering their next move, this change provides a valuable tool to manage disclosure risk while staying compliant with SEC requirements.

Practical Advice for Issuers

If your company is planning to take advantage of the SEC’s expanded confidentiality policy, here are a few steps to consider:

1. Engage counsel early: Securities attorneys can guide you on disclosure requirements, timing obligations, and strategic use of confidentiality.
2. Coordinate with underwriters: Even though underwriter names can be omitted initially, ensure alignment with underwriting teams for later submissions.
3. Maintain transparency internally: While filings may be confidential externally, keep your board, investors, and key stakeholders fully informed.
4. Plan for public transition: Prepare communication strategies for when filings go public, as investor relations will still be critical at that stage.

Final Thoughts

The SEC’s March 2025 decision marks a major milestone in the evolution of U.S. securities regulation. By extending confidential filing rights to all registration statements, the Commission is providing companies with greater flexibility to manage sensitive information while still upholding transparency when it matters most.

For issuers, the message is clear: confidentiality is now a powerful, widely accessible tool to navigate the complexities of going public.

At our firm, we have guided companies of all sizes through IPOs, follow-on offerings, and complex M&A transactions. With the SEC’s expanded confidentiality options, we can help you leverage this policy to protect sensitive information, plan strategically, and meet your capital-raising goals with confidence. Whether you are preparing your first registration or structuring a de-SPAC transaction, our team is here to ensure compliance and success.

Contact Person: Nick L. Torres, Esq. and Zhiqi Zheng, Esq.