A reporting company's routine SEC filings, including its annual reports on Form 10-K, quarterly reports on Form 10-Q and annual meeting proxy statements, are usually prepared internally at the company. Once there is an advanced draft of the filing, a junior attorney at the company's outside counsel may be asked to perform a "form check." An attorney performing a form check is essentially making sure the draft filing complies with all the requirements set out in the applicable SEC form. Many seasoned securities lawyers will wistfully recall that their very first assignment as a summer associate or first-year associate in the securities department was a form check.

While the name "form check" makes this work assignment sound administrative in nature, when done correctly, a form check of an SEC filing is a highly challenging and substantive undertaking. A junior attorney's first form check can be an opportunity to learn a great deal about SEC disclosure requirements and showcase his or her thoroughness and attention to detail.

However, because SEC forms and disclosure requirements can be dense, conducting your first form check can also be daunting. To avoid (or at least minimize) the "head hits desk" moments in a junior attorney's first form check assignment, this Article:

At the outset of a form check, it is important for the junior attorney to understand what the senior attorney and the client expect the work product from the form check to be. This will differ depending on the circumstances and the individual preferences of these parties. For example, some senior attorneys may expect a junior attorney to be prepared to have a detailed conversation with the senior attorney on any issues or ambiguities the junior attorney identified during the form check. Others may expect the junior attorney to prepare a client-ready markup of the draft SEC filing. By clarifying expectations in advance with the senior attorney on the assignment, a junior attorney can avoid wasted time and a senior attorney's or client's unfulfilled expectations.

A junior attorney should also be aware that the appropriate volume and tone of a law firm's comments on a draft SEC filing will depend on the sophistication and preferences of the particular client. While a newer reporting company may expect to receive a detailed markup of its draft filing that includes suggestions for wording and organizational changes, an established reporting company with a long reporting history will probably only expect to receive comments pointing out:

Before beginning the form check, in addition to the draft SEC filing prepared by the company, an attorney should gather together the relevant SEC form and rules, as well as relevant precedent SEC filings by the company and other issuers.

The attorney should locate and collect, or bookmark on a browser, the following forms and rules:

It will also be helpful to have precedent SEC filings available. For example:

When conducting a form check, and generally throughout your work as a securities lawyer, it is particularly helpful to identify a group of companies that consistently prepare high-quality SEC disclosure. For example, you might ask the senior attorney you are working with to help you identify two or three other companies whose disclosure your law firm consistently reviews. You can then refer to these other companies' disclosures again and again as trusted examples. Similarly, it is also helpful to identify a group of companies in the same industry as a company you are advising on its SEC disclosure.

Now it is time to actually conduct the form check. To do this, the attorney must read the SEC form and its instructions item by item and ensure that the information required under each item is included in the draft SEC filing. This process takes time because the substance of many of the requirements is not stated in the SEC form or schedule itself. Instead, the substantive requirements are often included by cross-reference to Regulation S-K, Regulation S-X and, for proxy statements, Regulation 14A.

Making matters more complicated, ideally an attorney should also be familiar with, and review, other SEC guidance on preparing the required disclosures, such as relevant interpretive releases, compliance and disclosure interpretations (C&DIs), telephone interpretations and disclosure guidance topics released by the staff of the SEC's Division of Corporation Finance. Practical Law's resources can help you identify and understand applicable guidance. For example, when you are form checking:

As an attorney reads each disclosure requirement and checks whether it has been satisfied in the company's draft filing, the attorney will undoubtedly have questions, identify ambiguities and reach conclusions only after detailed research and consideration. It is helpful to keep detailed notes of questions you had, ambiguities you could not resolve and the reasoning behind difficult determinations you made. These notes will be helpful:

Practical Law has a variety of resources to assist an attorney performing a form check.

Practical Law's series of Form Check Guides are item-by-item lists of the disclosure required in common SEC filings that identify notable SEC guidance and give other tips on many requirements. These resources include our:

Practical Law also offers resources providing overviews of many SEC forms. These resources are good place to begin educating yourself about the requirements of an unfamiliar form and identifying key SEC guidance relevant to particular disclosure requirements. They include Practice Notes:

Practical Law also offers Practice Notes with detail explanations of certain specific disclosure requirements. These Practice Notes include: