In October 2023, the SEC adopted final amendments to Sections 13(d) and 13(g) of the Exchange Act. To review the final amendments see HERE and HERE. In March 2025, the SEC published a few CD&I’s related to the new amendments (see HERE).
The amendments updated Sections 13(d), 13(g) and Regulation 13D-G to accelerate filing deadlines for both initial and amended reports; expand the timeframe within a business day in which filings may be timely made; clarify the Schedule 13D disclosure requirements with respect to derivative securities; and require that Schedule 13D and 13G filings be filed using XBRL.
On July 11, 2025, the SEC published 18 revised CD&Is on the filing of Schedules 13D and 13G. Many of the changes are clean-up, clarification and updates to align the guidance with the October 2023 amendments.
Section 13(d)
Two of the revised CD&I address Section 13(d) of the Exchange Act.
Revised CD&Is 101.01 and 103.01 confirm that when a company files a Form 10 to become subject to the Exchange Act reporting requirements, 5%+ shareholders must file a Schedule 13G to report their beneficial ownership within 45 days after the end of the calendar quarter in which the Form 10 went effective. Since the shareholder did not “acquire” securities in an Exchange Act reporting company (rather they already held the securities when the company became an Exchange Act reporting company), they would not be required to file a Schedule 13D. Also, the security holder is not required to certify that the shares were acquired or are held in the ordinary course or without the purpose or the effect of changing or influencing the control of the issuer of the securities.
If the security holder acquires additional equity securities after the effective date of the Form 10, the security holder must report its entire holdings on Schedule 13D or evaluate whether it is eligible to rely on Rules 13d-1(b) or 13d-1(c) to continue to report on Schedule 13G if the most recent acquisition, when added to all other acquisitions of securities of the same class during the 12 months immediately preceding the date of the most recent acquisition, aggregates to more than two percent of the class of such securities. This 12-month period will run back from the date of the acquisition to the time when the issuer was privately held if the acquisition occurs within 12 months after the effective date of the Form 10. If the security holder has acquired two percent or less during this period, the security holder simply may continue to rely on Rule 13d-1(d) and reflect the present acquisition in its Schedule 13G pursuant to Rule 13d-2(b).
CD&I 101.06 confirms that a security holder “pays the price” for a broker’s mistake. In particular, if a broker is instructed to buy 4.9% of a class of securities and mistakenly purchases over 5%, the security holder must still file a 13D or 13G even if they have refused to pay for the acquired shares. The absence of an intent to acquire in excess of five percent is not a consideration with respect to the applicability of Section 13(d).
Filing of Schedules 13D and 13G
CD&I 103.06 provides guidance as to the filing requirements when a group filer transfers its interest to a related entity that is not part of the group. In particular:
Question: A group comprised of three entities filed a Schedule 13G pursuant to Rules 13d-1(c) and 13d-1(k)(1). One of the group members transfers its securities (constituting six percent of the issuer’s class of equity securities registered under Section 12 of the Exchange Act) to its parent as a dividend. The parent, a Schedule 13G filer with respect to these securities, has not acted as a group with the other group members for the purpose of acquiring, holding, voting or disposing of equity securities of the issuer. What beneficial ownership reports must the parent and the group file after the subsidiary transfers the securities to its parent?
Answer: The parent must file an amended Schedule 13G 45 days after the end of the calendar quarter in which the subsidiary transfers the securities if becoming the direct beneficial owner of the transferred securities constitutes a material change in the information the parent previously disclosed. See Rule 13d-2(b). Because the parent already was the indirect beneficial owner of the securities owned by the subsidiary before the transfer, the parent does not “acquire” the securities within the meaning of Section 13(d)(1) as a result of the transfer and, therefore, does not incur an obligation to file a Schedule 13D. The group is required to amend its Schedule 13G to reflect the reduction in the amount beneficially owned and the departure of the subsidiary from the group.
CD&I 103.09 confirms that following a spin-off that did not require shareholder approval, a security holder of the newly spun off entity may file a Schedule 13G, within 45 days after the end of the calendar quarter in which the spin-off occurred, as the transaction does not constitute an “acquisition” requiring the filing of a Schedule 13D. This exception from the obligation to file a Schedule 13D is not available to persons who influence or control the parent’s decision to spin-off the subsidiary, including, but not limited to, officers and directors of the parent. Instead, this exception only applies to those security holders that became beneficial owners as a result of an involuntary change in circumstances.
CD&I 103.10 provides guidance on the timing of a filing vis a vie a trade date vs a settlement date. The Schedule 13D beneficial ownership report must be filed within five business days after the trade date of the securities transaction regardless of the settlement date.
Filing of Amendments to Schedules 13D or 13G
CD&I 104.01 confirms that a short sale does not change a person’s beneficial ownership as a short sale does not change the amount of shares over which the person has voting or investment power. However, if the short sale changes the person’s intent related to the securities (such as to influence power or control over management), an amended filing would be required.
CD&I 104.02 confirms that all Schedule 13G filers must file an amendment to report any material changes in the information previously disclosed. The Schedule 13G does not need to be amended if there has been no material change to the information disclosed in the Schedule or if the only change is to the percentage of securities beneficially owned by the filing person resulting solely from a change in the aggregate number of the issuer’s securities outstanding.
CD&I 104.03 provides guidance on the steps to be taken in the event of a failure to timely file an amendment to a Schedule 13D. If a security holder has failed to timely file any required Schedule 13D amendments, the security holder should immediately amend its Schedule 13D to disclose the required information. If the security holder failed to file multiple amendments to the Schedule 13D when required, it may disclose that information by filing multiple amendments or filing one combined amendment.
CD&I 104.04 confirms that when a security holder owns a variable rate convertible note, causing the number of shares into which the note can be converted within the next 60 days to change daily, an amended Schedule 13D would need to be filed every time that change results in a 1% or more change in total beneficial ownership.
CD&I 104.06 confirms that individual Schedule 13D filers must amend their 13D when they later form a group as the formation of a group constitutes a material change. The security holders may file separate amendments to their individual Schedules 13D, which would also satisfy the group’s reporting obligation pursuant to Rule 13d-1(k)(2). Alternatively, they may file a joint Schedule 13D under Rule 13d-1(k)(1). The joint filing would constitute an initial Schedule 13D by the newly-formed group, but the group is required to file the Schedule 13D within two business days under Rule 13d-2(a) rather than within five business days of the group’s formation since the report is intended to amend the three previously filed individual Schedules 13D.
CD&I 104.07 confirms that when a security holder reporting on Schedule 13D sells all of its shares after a voting record date but before the date of the shareholder meeting and retains the right to vote the shares through the meeting date, it should not file a final amendment to the 13D until the end of the shareholder meeting. In this case, the security holder would file two amendments – one upon disposition of the shares and the second following the annual meeting.
Determination of Beneficial Ownership
CD&I 105.01 confirms that a pledgee of securities has no filing obligation as, at that time, they don’t have either voting or disposition control. However, after a default of the pledgor, the pledgee should re-examine the pledge agreement to determine whether the pledgee has been granted voting power or investment power irrespective of whether it has taken all formal steps necessary to declare a default or perfect its rights. To the extent that, upon default, the pledge agreement grants the pledgee voting or investment power over greater than five percent of the class of outstanding securities, the pledgee will be deemed to have acquired beneficial ownership of the pledged securities on the date of default and must report its beneficial ownership on a Schedule 13D within five business days after that date or, if eligible, a Schedule 13G within the requisite time frame.
CD&I 105.06 addresses determining beneficial ownership when entering into a voting agreement to vote in favor for certain director nominees. In particular:
Question: Certain shareholders have entered into a voting agreement under which each shareholder agrees to vote the shares of a voting class of equity securities registered under Section 12 that it beneficially owns in favor of the director candidates nominated by one or more of the other parties to the voting agreement. Under Section 13(d)(3), the shareholders have formed a group given that they have agreed to act together for the purpose of voting the equity securities of the issuer. Under what circumstances is the beneficial ownership of a party to the voting agreement attributed to one or more other parties to the agreement?
Answer: The formation of a group under Section 13(d)(3), without more, does not result in the attribution of beneficial ownership to each group member of the securities beneficially owned by other members. Under Section 13(d)(3) of the Exchange Act, this group is treated as a new “person” for purposes of Section 13(d)(1) and is deemed to have acquired, due to the agreement among its members and corresponding operation of Rule 13d-5(b), beneficial ownership of the shares beneficially owned by its members. (Note that the analysis is different for Section 16 purposes.)
In order for one party to the voting agreement to be treated as having or sharing beneficial ownership of securities held by any other party to the voting agreement, evidence beyond formation of the group under Section 13(d)(3) would need to exist. For example, if a party to the voting agreement has the right to designate one or more director nominees for whom the other parties have agreed to vote, the party with that designation right becomes a beneficial owner of the securities beneficially owned by the other parties under Rule 13d-3(a) if the agreement gives that person the power to direct the voting of the other parties’ securities. Similarly, if a voting agreement confers the power to vote securities pursuant to a bona fide irrevocable proxy, the person to whom voting power has been granted becomes a beneficial owner of the securities under Rule 13d-3. See Example 7 in Exchange Act Release No. 13291 (February 24, 1977). Conversely, parties that do not have or share the power to vote or direct the vote of other parties’ shares would not beneficially own such shares solely as a result of entering into the voting agreement. Note, however, that a contract, arrangement, understanding or relationship concerning voting or investment power among parties to the agreement, other than the voting agreement itself, may result in a party to the voting agreement having or sharing beneficial ownership of securities held by other parties to the voting agreement under Rule 13d-3.
Acquisition of Securities
CD&I 107.01 confirms that if an investment advisor represents several major shareholders, who get together and ask the investment advisor to influence a decision of the company, a group has been formed requiring the filing of a new group 13D.
Schedule 13D
CD&I 110.03 confirms that the reference to “securities of an issuer” on Schedule 13D, references all securities of the issuer, including debt securities.
CD&I 110.04 confirms that when security holders enter into securities purchase agreements, such agreements do not trigger a reporting obligation until they close, or all contingencies to such closing have occurred.
CD&I 110.06 confirms that an amended filing is required when the intent to engage in reportable transactions changes (such as the intent to influence management) regardless of the steps taken to execute upon the intended transactions.
The Author
Laura Anthony, Esq.
Founding Partner
Anthony, Linder & Cacomanolis
A Corporate and Securities Law Firm
Securities attorney Laura Anthony and her experienced legal team provide ongoing corporate counsel to small and mid-size private companies, public companies as well as private companies going public on the Nasdaq, NYSE American or over-the-counter market, such as the OTCQB and OTCQX. For more than two decades Anthony, Linder & Cacomanolis, PLLC has served clients providing fast, personalized, cutting-edge legal service. The firms reputation and relationships provide invaluable resources to clients including introductions to investment bankers, broker-dealers, institutional investors and other strategic alliances. The firm’s focus includes, but is not limited to, compliance with the Securities Act of 1933 offer sale and registration requirements, including private placement transactions under Regulation D and Regulation S and PIPE Transactions, securities token offerings and initial coin offerings, Regulation A/A+ offerings, as well as registration statements on Forms S-1, S-3, S-8 and merger registrations on Form S-4; compliance with the Securities Exchange Act of 1934, including registration on Form 10, reporting on Forms 10-Q, 10-K and 8-K, and 14C Information and 14A Proxy Statements; all forms of going public transactions; mergers and acquisitions including both reverse mergers and forward mergers; applications to and compliance with the corporate governance requirements of securities exchanges including Nasdaq and NYSE American; general corporate; and general contract and business transactions. Ms. Anthony and her firm represent both target and acquiring companies in merger and acquisition transactions, including the preparation of transaction documents such as merger agreements, share exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. The ALC legal team assists Pubcos in complying with the requirements of federal and state securities laws and SROs such as FINRA for 15c2-11 applications, corporate name changes, reverse and forward splits and changes of domicile. Ms. Anthony is also the author of SecuritiesLawBlog.com, the small-cap and middle market’s top source for industry news, and the producer and host of LawCast.com, Corporate Finance in Focus. In addition to many other major metropolitan areas, the firm currently represents clients in New York, Los Angeles, Miami, Boca Raton, West Palm Beach, Atlanta, Phoenix, Scottsdale, Charlotte, Cincinnati, Cleveland, Washington, D.C., Denver, Tampa, Detroit and Dallas.
Ms. Anthony is a member of various professional organizations including the Crowdfunding Professional Association (CfPA), Palm Beach County Bar Association, the Florida Bar Association, the American Bar Association and the ABA committees on Federal Securities Regulations and Private Equity and Venture Capital. She is a supporter of several community charities including the American Red Cross for Palm Beach and Martin Counties, Susan Komen Foundation, Opportunity, Inc., New Hope Charities, the Society of the Four Arts, the Norton Museum of Art, Palm Beach County Zoo Society, the Kravis Center for the Performing Arts and several others.
Ms. Anthony is an honors graduate from Florida State University College of Law and has been practicing law since 1993.
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