Latham & Watkins Discusses the JOBS Act after One Year: A Review of the New IPO Playbook

Latham & Watkins LLP has prepared a comprehensive report, “The JOBS Act After One Year: A Review of the New IPO Playbook.” The report focuses on Title I of the JOBS Act, which changed the initial public offering (IPO) process in the United States for a new category of issuer, called an emerging growth company (EGC).  These issuers represented approximately 75 percent of issuers that completed an IPO in the US during the first year after the JOBS Act’s enactment.

The report provides a comprehensive analysis of trends in the US EGC IPO market after the JOBS Act.  Among the report’s findings:

  • Title I has changed the IPO process. Over 90 percent of EGCs that publicly filed their first registration statement after April 5, 2012 elected at least one accommodation offered by the JOBS Act.
  • EGCs are found across many industries, with technology companies representing the largest group of EGC IPO issuers. After technology, the top five industries were energy, healthcare, financial services, real estate and pharmaceuticals.
  • Confidential submission is particularly popular. Approximately 65 percent of EGCs that publicly filed their first registration statement after April 5, 2012 submitted at least one draft registration statement for review by the SEC prior to public filing.
  • Disclosure about EGC status has become standard. EGCs include standard disclosure in their IPO registration statements about their EGC status and the IPO on-ramp accommodations they are using.
  • Testing-the-waters practices are still evolving. The decision of whether, when and how to test the waters with potential institutional investors to gauge their interest in a contemplated offering is made by issuers and their underwriters on a case-by-case basis.
  • Foreign private issuers are taking advantage of Title I. They comprised almost 10 percent of US IPOs completed by EGCs since April 5, 2012.

The report was developed by members of Latham’s national office and the firm’s Capital Markets, Emerging Companies and Public Company Representation Practice Groups. To inform their analysis, the authors identified for review 184 EGC IPOs that either successfully completed an IPO listed on a major US securities exchange or are currently in registration to complete such an IPO. In 2012, Latham lawyers advised EGCs or their underwriters in nearly 25% of all IPOs completed by EGCs in the US — more than any other law firm.

The full piece, which is available  herewas originally published by Latham & Watkins LLP on April 4, 2013.