The Division of Corporation Finance of the Securities and Exchange Commission has announced that “Tandy” representations are no longer needed in filing review correspondence.

If you have been involved in filing a registration statement any time after 2004, you have probably seen Tandy language.  Named after Tandy Corporation, the first company to receive a letter requesting this language, Tandy representations required, in the event that a company requested acceleration of the effective date of a registration statement, to acknowledge in writing that:

  • should the SEC or the staff,


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A_Ledbetter_LR.jpgCONTRIBUTED BY
Andrew Ledbetter
andrew.ledbetter@dlapiper.com

The Facebook IPO is a pretty big deal generally. Whether Facebook would go public stirred media frenzy and Congressional testimony in the past year. Facebook’s initial registration statement indicated it would be the largest tech company IPO ever (the fee table on the original filing showed a $5 billion offering – the filing fee alone was $573k).  And the company’s social importance is undeniable.

But what will the SEC staff think about Facebook’s disclosures? Will the path to going public hit some speed bumps? We got our first big clue on Wednesday, when after the markets closed Facebook filed its first substantive amendment to the Form S-1 for its IPO. (It filed Amendment No. 1 shortly after its original filing, solely to add exhibits.)

On interesting deals, I sometimes compare an amended S-1 to the prior filing to see what changed. Seeing what disclosures a company has changed lets me surmise whether SEC comments may have driven the change and piece together the issues the SEC staff has raised with the filing. In a deal like Facebook’s, you can assume the staff heavily, carefully reviewed the filing, so the comments the staff elected to give may reveal points of general SEC emphasis, with potential application to other companies. A deal like this also tends to become a frequently used source for future disclosures by other companies looking for precedents, which makes monitoring Facebook’s disclosures particularly interesting. 

Or perhaps that’s just my rationalization – I just couldn’t help but spend a few hours looking at this…

In any event, for kindred spirits, my guess is that Facebook probably received SEC comments clustered around the themes discussed below. For those who do not routinely review registration statements, this post will be fairly technical and you may want to stop reading now.


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A_Ledbetter_LR.jpgCONTRIBUTED BY
Andrew Ledbetter
andrew.ledbetter@dlapiper.com

The SEC has announced that, “beginning January 1, 2012, the staff will release filing review correspondence no earlier than 20 business days following the completion of a filing review.”  This shortens the SEC’s historical (well, since 2005) practice of releasing such correspondence “no earlier than 45 [calendar] days after the review of the disclosure filing is complete.”  This may be useful to note for a company that deals with SEC review (either registration or periodic/current reports). Continue Reading