Fifth Circuit Vacates SEC’s Share Repurchase Disclosure Rules

On December 19, 2023, the Fifth Circuit officially vacated the SEC’s share repurchase disclosure rules. As a result of the Court’s decision, companies will not need to comply with the now-vacated share repurchase disclosure rules. Therefore, companies can continue to follow the guidance from our original client alert on this topic for the upcoming reporting season. 

Background and Additional Information

As discussed in our original client alert, on October 31, 2023, the Fifth Circuit ruled that the SEC violated the Administrative Procedure Act when it adopted enhanced share repurchase disclosure rules. The Court provided the SEC until November 30, 2023, to correct the deficiencies. Following an unsuccessful attempt by the SEC to extend the November 30, 2023, deadline, on December 1, 2023, the SEC notified the Court that it was unable to correct the deficiencies by the deadline. The Fifth Circuit’s order vacating the rule confirms companies are not obligated to provide the enhanced share repurchase disclosures.

In response, the SEC updated the PDF reference copies of “Form 10-Q” and “Form 10-K” on its form list website to eliminate references to the now-vacated share repurchase disclosure rules. 

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If you have any questions regarding this update, please contact one of the authors or your regular Orrick contact.