Staff Legal Bulletin No. 7 (CF)
Plain English Disclosure
Action: Publication of the Division of Corporation Finance
Date: September 4, 1998
Summary: This staff legal bulletin provides helpful information on the plain English rule and amendments that apply to public companies filing with the Division of Corporation Finance. This rule and the amendments were adopted by the Commission on January 22, 1998, and take effect on October 1, 1998.
Supplementary Information: The statements in this legal bulletin represent the views of the staff of the Division of Corporation Finance. This bulletin is not a rule, regulation, or statement of the Securities and Exchange Commission. Further, the Commission has neither approved nor disapproved its content.
Contact Person: For further information please contact Carolyn A. Miller, Attorney-Adviser, at (202) 942-2890.
Brief Description of the New Plain English Rule and AmendmentsOn January 22, 1998, the Commission adopted a new rule and several amendments to existing rules that require companies filing registration statements under the Securities Act of 1933:
In addition to amending a number of disclosure and form requirements, the Commission adopted new Rule 421(d) and amended Rule 421(b).
Rule 421(d) The New Plain English RuleRegistrants must use plain English writing principles in the organization, language, and design of the front and back cover pages, the summary, and the risk factors section. Also, when drafting the language in these parts of the prospectus, registrants must substantially comply with these plain English principles:
Amended Rule 421(b)When writing the remaining portions of their registration statements, registrants must use the following standards:
Last, registrants should avoid:
The new rule and amendments take effect October 1, 1998. Since their adoption in January, we have been asked several substantive and procedural questions about them. This staff legal bulletin answers the most commonly asked questions.
Questions and Answers
Question 1Q: Which filings do the new plain English rule and amendments apply to?
A: They apply only to prospectuses filed under the Securities Act of 1933.
Question 2Q: How does the staff anticipate being able to issue plain English comments consistently across filings?
A: For the past several months, we have been training the staff on how to apply the plain English rules consistently to registration statements. We expect to continue these training sessions at least through the end of this year. In addition, we have made plain English training a core part of the Division's training program for new attorneys and accountants.
Question 3Q: Because Rule 421(d) substantially curbs the use of technical terms in the forepart of the prospectus, how should registrants whose businesses are highly technical describe their companies?
A: A registrant with a highly technical business should provide a brief, general description of its business with, if necessary, concrete examples to illustrate the description. For example, compare the following two descriptions of Computational Systems, Inc. The first is from the company's 1996 10-K, which is not subject to the plain English rules. The other is from the summary section of a merger proxy that the company and Emerson Electric Company filed as part of the Division's plain English pilot program:
Question 4Q: Rule 421(b) specifies that we "must avoid frequent reliance on glossaries or defined terms as the primary means of explaining information in the prospectus. Define terms in a glossary or other section of the document only if the meaning is unclear from the context. Use a glossary only if it facilitates understanding of the disclosure." When should we use a glossary?
A: You should use a glossary only if:
You should not use a glossary to define commonly understood abbreviations, like SEC, or acronyms, like NASDAQ. Further, you should not use a glossary to define terms that you have created solely for the purpose of your registration statement. We urge you not to create a vocabulary that is unique to your offering, with the exception of brand or trade names you use to identify the type of security you are offering.
Question 5Q: If we filed a registration statement before October 1 but it's not going to be declared effective until after October 1, do we have to amend it to comply with the new plain English rule and amendments?
A: No. The plain English rule and amendments do not apply to pre-effective amendments for registration statements filed before October 1. The plain English rule and amendments apply to:
Question 6Q: If we filed a base prospectus under Rule 415(a)(1)(x) before October 1 and are filing prospectus supplements on or after October 1, must we amend the base prospectus to comply with the new plain English rule and amendments?
A: No. You do not have to amend the base prospectus to comply. However, as we noted in our answer to question 5, any prospectus supplements you file on or after October 1 must comply.
Question 7Q: If, on or after October 1, we are filing a prospectus supplement under Item 20 D of Industry Guide 5 or a reprinted prospectus as described in Securities Act Release No. 6900, must these filings comply with the new plain English rule and amendments?
A: Yes. We believe this is consistent with our requirement that prospectus supplements filed on or after October 1 comply with the new plain English rule and amendments.
Question 8Q: Rules 462(b) and (c) state that specific registration statements and post-effective amendments are effective upon filing with the Commission. If we file a registration statement or post-effective amendment under these rules on or after October 1, must it comply with the new plain English rule and amendments?
A: Registration statements and post-effective amendments filed under Rules 462(b) or (c) must comply only if their underlying registration statement was first filed on or after October 1.
Question 9Q: Are all the documents we incorporate by reference into our registration statements subject to the new plain English rule and amendments?
A: No. The information you incorporate by reference in response to a general requirement need not comply. For example, Item 12 on Form S-3 requires you to incorporate by reference your recent Exchange Act reports in their entirety.
However, any information you incorporate by reference to satisfy a specific disclosure requirement must comply with the applicable plain English rule and amendments. For example, on Form S-3, if you incorporate by reference risk factors from a Form 10-K to satisfy Item 3, the risk factors must comply with Rule 421(d).
Question 10Q: What if we are filing a registration statement on or after October 1 that incorporates by reference the risk factors we included in our most recent 1934 Act filing?
A: As we noted in our answer to question 9, the risk factors you incorporate by reference must comply with Rule 421(d). In this instance, you can:
Question 11Q: If we reprint in our registration statement information from our 1934 Act filings, do we need to revise it to comply with the plain English rules?
A: Yes. Any information that you physically include in a prospectus must comply.
Question 12Q: We are doing a private placement before October 1st and will be filing a registration statement for a transaction commonly called an "Exxon Capital" exchange offer on or after October 1st. Are we required to comply with the new plain English rule and amendments in that registration statement?
Question 13Q: We are a foreign private issuer that will submit our registration statement in draft form for staff review &150; as discussed in Securities Act Release No. 7053 &150; before October 1. Are we required to write our initial public filing of that registration statement in plain English if we file it on or after October 1?
A: No. We will consider the date you first submit your registration statement for staff review as your initial file date for this purpose.
Question 14Q: We will submit preliminary proxy material on a confidential basis under Exchange Act Rule 14a-6 before October 1. This preliminary proxy material will be filed as a Securities Act registration statement after staff review of the confidential submission. Does the Securities Act registration statement need to comply with the new plain English rules and amendments if we file it on or after October 1?
A: No. For those proxy materials that qualify for confidential treatment under Rule 14a-6, we will consider the date you filed them confidentially as proxy materials as your initial file date for this purpose.
Question 15Q: In your proposing and adopting plain English rule releases, you emphasize how important it is to eliminate redundant information in registration statements. How does this reconcile with Securities Act Release No. 6900 that requires limited partnership offering prospectuses and similar offerings to list key risks on the cover page and repeat them in the risk factors section?
A: We believe the unique nature of these offerings and the risks they present to investors warrant requiring the issuer to highlight these risks on the cover page. Of course, the cover page, summary, and risk factors section must otherwise comply with the plain English rule and amendments.
Question 16Q: Will the staff randomly select registration statements to review them only for plain English?
A: Possibly. We may choose to review a filing solely for compliance with the new rule and amendments. We call this type of spot check a "monitor." The number of monitors we conduct depends on many factors, such as work load.
Question 17Q: Who on the staff will issue plain English comments on our registration statements?
A: The same staff member who is assigned to review your registration statement will also conduct the plain English review. Plain English comments you receive, if any, will appear in your regular comment letter.
Question 18Q: What will the staff be looking for when reviewing a prospectus for compliance with the new plain English rule and amendments? Will you be issuing "grammar" comments?
A: The staff will read the registration statements for clarity. The standards in Rule 421(d) and the guidance in the amendments to Rule 421(b) give registrants the tools they need to write clear disclosure documents. While the staff generally will not issue grammar comments, it may cite these rules in comments that are issued to help clarify registrants' disclosure.
Question 19Q: In our efforts to write the disclosure in plain English, should we focus on making the disclosure brief?
A: No &150; not at the expense of completeness or accuracy. The goal of plain English is clarity, not brevity. Writing disclosure in plain English can sometimes increase the length of particular sections of you document. You will likely reduce the length of your plain English document by writing concisely and eliminating redundancies &150; not by eliminating substance.
Question 20Q: Recently, the Division of Corporation Finance announced that, because registrants are required to file their registration statements electronically on EDGAR, the staff did not want registrants to send paper copies of their filings. However, in the plain English adopting release, you say if a registration statement that is subject to the new plain English rule is selected for review, the staff will need paper copies. Why?
A: As many people know, when registrants file their registration statements electronically on our EDGAR system, the document's layout is lost. Because the new plain English rule is intended to enhance the readability of the prospectus through language and design, we need to see the layout of the plain English sections as you are delivering them to investors.
The staff member assigned to your filing will call to request paper copies of the prospectus. We are working to upgrade our EDGAR system to permit the filing of an exact duplicate of the paper copy sent to investors but this may not occur for some time.
Question 21Q: Can the staff ask the Commission to deny acceleration of a registration statement where the registrant has not made a good faith effort to comply with the new plain English rule and amendments?
A: Yes. Under Rule 461(b)(1), the staff may ask the Commission to deny acceleration of a registration statement's effective date "[w]here there has not been a bona fide effort to make the prospectus reasonably concise, readable, and in compliance with the plain English requirements of Rule 421(d)."
Question 22Q: Are there any examples of plain English filings that you could refer us to?
A: Yes. Since April, 1996, the Division of Corporation Finance has been running a plain English pilot program in which public companies voluntarily write their disclosure documents in plain English. Pilot participants receive detailed feedback from the staff on their plain English efforts and revise their disclosure accordingly.
To date, the companies that participated in the pilot have produced well over 100 examples of plain English disclosure documents, ranging from annual meeting proxy statements and merger proxies to initial public offering prospectuses and offerings of structured securities. We compiled a 756 page book that contains many examples of these plain English filings. You can get a photocopy of this book, "Plain English Pilot Program: Selected Plain English Samples," from the SEC's Public Reference Room or a printed copy from Bowne Publishing in New York City.4
We also prepared a booklet entitled "Before & After Plain English Examples and Sample Analyses." This booklet contains actual before and after examples of pages from pilot participants' filings with a sample plain English analyses. You can get a photocopy of this booklet from the SEC's public reference Room or a printed copy from RR Donnelley Financial, financial printers, in New York City.5
And, "A Plain English Handbook: How to Create Clear SEC Disclosure Documents," issued by the Office of Investor Education and Assistance, is now available in final form. You can download a copy from our website at www.sec.gov or request a paper copy by calling 1-800-SEC-0330.
Last, the adopting release for the final plain English rule and amendments is available on our website.