An Analysis of 2021 and 2022 SEC Comments Issued to REITs

Review of S-3 A Form S-3 registration statement is a short-form registration statement available to eligible companies. To be able to use Form S-3, a registrant must: ■ Be organized under the laws of the United States; ■ Have a class of securities that is registered pursuant to Section 12(b) or 12(g) of the Exchange Act; ■ Have been subject to Section 12 or 15(d) of the Exchange Act for the past 12 months and has filed all Exchange Act filings required to be filed for at least the past 12 months; ■ Have timely filed all Exchange Act reports required to be filed during the past 12 months and any portion of the month before filing the registration statement, including the registrant’s: ■ Proxy statement or information statement; and ■ Reports on Form 10-K, Form 10-Q and Form 8-K. When a Form S-3 registration statement is filed, the Staff will first screen the Form S-3 to ensure the registrant’s eligibility to use the form. Once the registrant is confirmed to be eligible to use Form S-3, similar to other registration statements, the Staff will determine whether the registration statement should be reviewed (and, if so, whether the filing will be subject to a full or a limited review). The Staff’s decision typically will be relayed to the registrant within two to five business days. Unlike long-form registration statements on Form S-11, the Staff is much more likely to decide not to review a Form S-3. Review of Exchange Act Reports The Sarbanes-Oxley Act of 2002 (“ SOX ”) requires the Division to undertake some level of review of each reporting company at least once every three years. In addition to the required review, the Division selectively pulls certain filings for evaluation. The Division does not set forth the criteria used for determining which companies to selectively review, but Section 408 of SOX sets forth several factors that may be considered, including: ■ whether the company has issued material restatements of its financial results; ■ whether the company has experienced significant volatility in its stock price; ■ the company’s market capitalization; ■ whether the company is an emerging company with a disparity in its price to earnings ratio; ■ whether the company’s operations significantly affect any material sector of the economy; or ■ any other factor the Division considers relevant. If the Division selects a company or a filing for review, the extent of that review will depend on many factors, including the criteria set forth above. The scope of a review may be: ■ A full cover-to-cover review; ■ A financial statement review in which the Staff will examine the financial statements and related disclosures, such as Management’s Discussion and Analysis of Financial Condition and Results of Operations (“ MD&A ”); or ■ A targeted-issue review in which the Staff will examine the filing for one or more specific items of particular focus for the SEC. An Analysis of 2021 and 2022 SEC Comments Issued to REITs | 2