As discussed in our September 1, 2021 post, the SEC brought its first “shadow insider trading” case against Matthew Panuwat, a company employee who purchased options in a competitor’s shares shortly after learning his...more
6/14/2024
/ Confidential Information ,
Corporate Governance ,
Criminal Convictions ,
Criminal Prosecution ,
Enforcement Actions ,
Insider Trading ,
Material Nonpublic Information ,
Materiality ,
Misappropriation ,
Publicly-Traded Companies ,
Risk Mitigation ,
Securities and Exchange Commission (SEC) ,
Securities Fraud
New SEC disclosure requirements take effect soon. Together with recent accounting guidance, it’s timely for companies to review their equity grant practices and any vulnerabilities to criticism for “spring-loading” or...more
On May 21, 2024, the Director of the SEC’s Division of Corporation Finance issued a statement providing guidance on the use of Item 1.05 of Form 8-K to disclose cybersecurity incidents....more
One of the routine duties of counsel for a public company is advising officers and directors on their trades in company stock and their SEC responsibilities when they leave. Because those discussions are routine, it may be...more
5/22/2024
/ 10b5-1 Plans ,
Blackout Rules ,
Board of Directors ,
Compliance ,
Corporate Governance ,
Corporate Officers ,
Employee Retirement Income Security Act (ERISA) ,
Filing Requirements ,
Insider Trading ,
Material Nonpublic Information ,
Publicly-Traded Companies ,
Risk Management ,
Rule 144 ,
Securities Regulation
As calendar-year companies prepare for upcoming quarterly reports, here are some updates and reminders...more
On March 6, 2024, a divided SEC approved climate-related disclosure rules. The new rules will require disclosure of...more
3/8/2024
/ Climate Change ,
Corporate Governance ,
Disclosure Requirements ,
Foreign Private Issuers ,
Form 10-K ,
Form 10-Q ,
Greenhouse Gas Emissions ,
PLSRA ,
Public Comment ,
Publicly-Traded Companies ,
Regulation S-K ,
Regulation S-X ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
XBRL Filing Requirements
On January 24, 2024, the SEC approved by a 3-2 vote new rules to substantially change the disclosure and liability regime governing SPACs, including de-SPAC transactions, or “SPAC target IPOs” as referred to by Chairman...more
2/1/2024
/ Corporate Governance ,
Disclosure Requirements ,
Investment Company Act of 1940 ,
New Rules ,
Non-GAAP Financial Measures ,
PSLRA ,
Regulation S-K ,
Section 145 ,
Securities and Exchange Commission (SEC) ,
Shell Corporations ,
Special Purpose Acquisition Companies (SPACs) ,
Target Company ,
Underwriting
As companies prepare for the upcoming proxy and annual report season, the following supplements the list of key items to consider contained in our October 2, 2023 post...more
In light of new disclosure rules as well as investor interest, companies may wish to modify their D&O Questionnaires for the 2024 proxy season to address certain hot topics...more
On October 31, 2023, the Fifth Circuit ruled in Chamber of Commerce v. SEC that the SEC acted arbitrarily and capricious, in violation of the Administrative Procedure Act, when it adopted the new share repurchase disclosure...more
11/6/2023
/ Administrative Procedure Act ,
Chamber of Commerce ,
Compliance ,
Compliance Dates ,
Corporate Governance ,
Disclosure Requirements ,
First Amendment ,
Foreign Private Issuers ,
Form 10-K ,
Form 10-Q ,
Form 20-F ,
Repurchases ,
Securities and Exchange Commission (SEC) ,
Stock Repurchases
As companies prepare for next proxy season, they should review SEC staff guidance on the pay vs. performance table. In addition to recent staff interpretations, as discussed in our October 2, 2023 post and February 22, 2023...more
10/17/2023
/ Corporate Governance ,
Disclosure Requirements ,
EBITDA ,
Executive Compensation ,
Financial Reporting ,
GAAP ,
Pay Ratio ,
Pay-for-Performance ,
Proxy Season ,
Proxy Statements ,
Publicly-Traded Companies ,
Regulation S-K ,
Securities and Exchange Commission (SEC) ,
Total Shareholder Return (TSR)
As companies look ahead to the upcoming proxy and annual report season, the SEC has generated a number of new items to add to your compliance checklist – in addition to those covered in last year's list. Those items, along...more
10/3/2023
/ Annual Reports ,
Artificial Intelligence ,
CDIs ,
Clawbacks ,
Climate Change ,
Coronavirus/COVID-19 ,
Corporate Governance ,
Disclosure Requirements ,
Diversity and Inclusion Standards (D&I) ,
Environmental Social & Governance (ESG) ,
Equity Compensation ,
Financial Restatements ,
GAAP ,
Insider Trading ,
Non-GAAP Financial Measures ,
Performance Incentives ,
Proxy Season ,
Publicly-Traded Companies ,
Related Parties ,
Reporting Requirements ,
Securities and Exchange Commission (SEC) ,
Shareholders ,
Ukraine ,
XBRL Filing Requirements
In New England Carpenters Guaranteed Annuity and Pension Funds v. DeCarlo (Aug. 2023), the Second Circuit held, among other things, that CEO/CFO certifications mandated by SOX Section 302 constitute non-actionable statements...more
9/6/2023
/ Audit Committee ,
CEOs ,
Certification Requirements ,
CFOs ,
Corporate Governance ,
Deferred Compensation ,
Dismissals ,
Enforcement Actions ,
Financial Reporting ,
GAAP ,
Internal Controls ,
Rule 10b-5 ,
Sarbanes-Oxley ,
Section 11 ,
Securities Act of 1933 ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
Shareholder Litigation ,
Statement of Opinion
A recent court case highlights the potential pitfalls for public companies engaging in informal communications with analysts. The court found that paraphrased statements attributed to an officer in an analyst’s report can be...more
A flurry of recent lawsuits in the wake of the Supreme Court’s June decision on affirmative action have further muddied the waters for public companies trying to thread their way through competing interests....more
8/16/2023
/ Affirmative Action ,
Annual Reports ,
Civil Rights Act ,
College Admissions ,
Corporate Counsel ,
Corporate Governance ,
Disclosure ,
Disclosure Requirements ,
Discrimination ,
Diversity ,
Diversity and Inclusion Standards (D&I) ,
Equal Employment Opportunity Commission (EEOC) ,
Kellogg Company ,
Publicly-Traded Companies ,
Reverse Discrimination ,
Risk Mitigation ,
SCOTUS ,
Shareholder Activism ,
Shareholders ,
Target
A divided SEC on July 26, 2023 approved new requirements for reporting of material cybersecurity incidents in real-time current reports on Form 8-K or 6-K and disclosure of cybersecurity risk management, strategy and...more
7/28/2023
/ Annual Reports ,
Compliance ,
Compliance Dates ,
Corporate Governance ,
Cyber Incident Reporting ,
Cybersecurity ,
Disclosure Requirements ,
Form 10-K ,
Form 20-F ,
Form 8-K ,
Publicly-Traded Companies ,
Securities and Exchange Commission (SEC) ,
Securities Regulation
Over the past few years, the SEC has renewed its focus on public company failures to disclose perquisites and related person transactions. As discussed under “Deeper Dive” below, most of the cases involve companies that...more
As we near June 30, 2023, companies are advised to get a jump start on disclosure changes and possible updates to upcoming Form 10-Qs (or Form 10-Ks in the case of non-calendar year companies). The SEC recently updated the...more
6/16/2023
/ Artificial Intelligence ,
Clawbacks ,
Corporate Governance ,
Corporate Officers ,
Directors ,
Disclosure Requirements ,
Executive Compensation ,
Form 10-K ,
Form 10-Q ,
Form 20-F ,
Form 8-K ,
Institutional Shareholder Services (ISS) ,
Market Conditions ,
Publicly-Traded Companies ,
Say-on-Pay ,
Securities and Exchange Commission (SEC) ,
Securities Regulation ,
Stock Repurchases ,
Stock Trades
While new forms of artificial intelligence and machine-learning systems, or AI, have garnered headlines in the mainstream press, many companies are evaluating its use in their businesses. Perhaps to a greater extent than with...more
5/25/2023
/ Algorithms ,
Artificial Intelligence ,
Best Practices ,
Corporate Governance ,
Cyber Attacks ,
Data Breach ,
DoorDash ,
Facebook ,
Form 10-K ,
Form 10-Q ,
Machine Learning ,
Popular ,
Public Disclosure ,
Risk Assessment ,
Risk Mitigation
What happened -
On February 22, both the NYSE and Nasdaq posted their proposals for new listing rules in response to the SEC’s final clawback rules. The proposals would establish the following compliance schedule...more
What happened -
The SEC staff recently issued 15 interpretations (see Sections 128D and 228D) relating to its new Pay versus Performance (PvP) rules....more
New deadlines and obligations for insiders and corporate secretaries are coming up as result of rule changes, including the following:
February 27, 2023 - Form 4 reporting for gifts -
February 27, 2023 is the...more
What happened -
A recent Delaware chancery court decision has called into question consolidated voting on charter amendments by some companies with multiple classes of common stock. In Garfield v. Boxed, Inc., the court...more
What happened?
In a recent settlement order, the SEC charged Activision Blizzard with failing to maintain adequate disclosure controls and procedures. Notably, the SEC did not claim that the company’s SEC filings were...more
2/9/2023
/ Cease and Desist ,
Compliance ,
Corporate Governance ,
Disclosure Requirements ,
Dodd-Frank ,
Employer Liability Issues ,
Enforcement Actions ,
Internal Communications ,
Internal Controls ,
Material Disclosures ,
Policies and Procedures ,
Risk Assessment ,
Securities and Exchange Commission (SEC) ,
Settlement ,
Whistleblowers
Based on recent developments, we have additional items to supplement our October 10, 2022 post, which highlighted key considerations for the 2022 proxy and annual report season....more