In a settled enforcement action, the SEC resolved allegations related to non-monetary transactions regarding certain Comscore transactions. The enforcement action also involved disclosures surrounding the number of...more
9/30/2019
/ Disclosure Requirements ,
Enforcement Actions ,
Failure To Disclose ,
Misleading Impressions ,
Publicly-Traded Companies ,
Quarterly Report ,
Regulatory Violations ,
Revenue Growth ,
Securities and Exchange Commission (SEC) ,
Securities Regulation ,
Settlement Agreements
The SEC recently settled an enforcement action against Mylan N.V., claiming Mylan failed to timely disclose to investors a possible loss relating to a nearly two-year Department of Justice probe into whether Mylan...more
9/30/2019
/ Department of Justice (DOJ) ,
Disclosure Requirements ,
Enforcement Actions ,
False Billing ,
Final Judgment ,
Form 10-Q ,
Investigations ,
Loss Contingencies ,
Medicaid ,
Medical Devices ,
Motion To Enjoin ,
Mylan Pharmaceuticals ,
Pharmaceutical Industry ,
Publicly-Traded Companies ,
Securities and Exchange Commission (SEC) ,
Securities Regulation ,
Statute of Limitations
Our preliminary list of important planning considerations for the 2020 proxy season is set forth below.
Directors’ and Officers’ Questionnaires; Committee Charters -
We have identified only a few possible changes to...more
9/17/2019
/ Accelerated Filers ,
Board of Directors ,
Corporate Governance ,
Corporate Issuers ,
Corporate Officers ,
Disclosure Requirements ,
EDGAR ,
Filing Requirements ,
Fixing America’s Surface Transportation Act (FAST Act) ,
GAAP ,
Hedging ,
Institutional Shareholder Services (ISS) ,
MD&A Statements ,
Proxy Season ,
Proxy Statements ,
Proxy Voting Guidelines ,
Publicly-Traded Companies ,
Regulation S-K ,
Say-on-Pay ,
Section 162(m) ,
Securities and Exchange Commission (SEC) ,
Shareholder Proposals ,
Tax Cuts and Jobs Act ,
XBRL Filing Requirements
We have identified only a few possible changes to date for D&O questionnaires for the 2020 proxy season.
New rules adopted to implement the FAST Act clarify that registrants may, but are not required to, rely only on...more
9/16/2019
/ Board of Directors ,
Compensation & Benefits ,
Corporate Governance ,
Corporate Officers ,
EDGAR ,
Executive Compensation ,
Filing Requirements ,
Fixing America’s Surface Transportation Act (FAST Act) ,
Independent Directors ,
Nasdaq ,
Proxy Season ,
Publicly-Traded Companies ,
Section 16
The SEC published this statement announcing a new position on requests for no action letters to exclude shareholder proposals:
After the recent proxy and shareholder proposal season, the Division considered whether...more
Omega Protein Corporation manufactured and distributed omega-3 fish oils and fish meal products. Omega financed its operations through federal government programs under Title XI of the Merchant Marine Act of 1936....more
9/3/2019
/ Clean Water Act ,
Corporate Issuers ,
Criminal Convictions ,
Discharge of Pollutants ,
Enforcement Actions ,
Environmental Policies ,
Environmental Protection Agency (EPA) ,
Felonies ,
Loans ,
Merchant Marine Act of 1936 ,
Misrepresentation ,
National Marine Fisheries Service ,
Popular ,
Publicly-Traded Companies ,
Regulatory Violations ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
Strict Compliance ,
Title XI
The SEC charged TherapeuticsMD Inc., a pharmaceutical company headquartered in Boca Raton, Florida, with violations of Regulation FD based on its sharing of material, nonpublic information with sell-side research analysts...more
8/21/2019
/ Disclosure Requirements ,
Enforcement Actions ,
FDA Approval ,
Food and Drug Administration (FDA) ,
Insider Trading ,
Investigational New Drug Application (IND) ,
Non-Public Information ,
NYSE ,
Pharmaceutical Industry ,
Publicly-Traded Companies ,
Regulation FD ,
Securities and Exchange Commission (SEC) ,
Securities Violations ,
Stock Prices ,
Trading Platforms
In Manti Holdings LLC et al v. Authentix Acquisition Company, Inc., the Delaware Court of Chancery held a stockholder could waive appraisal rights in a stockholders agreement. ...more
A question some ponder is whether all audit reports will include a discussion of critical audit matters, or CAMs. The answer is “yes” if you consider the 11 audit reports issued by the Big 4 on and after August 1 for large...more
We noted a couple of early CAMs here and here. In addition, as of the end of the week on August 9, 1019, we identified the following CAMs (note that the easiest way to navigate the EDGAR documents to find the CAMs is to...more
The Fixing America’s Surface Transportation Act, or FAST Act, required the SEC to consider ways to streamline SEC regulations. Accordingly, the SEC adopted final amendments to its rules that are intended to modernize and...more
To my knowledge this 10-K includes the first critical audit matter, or CAM, issued by a Big 4 firm. The CAM is straightforward and does not reflect negatively on the company or its audit committee or cast doubt on its...more
ISS has prepared a whitepaper that analyzes trends in director overboarding. The whitepaper notes that in the 2019 proxy season, “overboarding” became a center-stage issue for many companies and investors. Several large asset...more
The SEC announced charges against Facebook Inc. for making misleading disclosures regarding the risk of misuse of Facebook user data. According to the SEC, for more than two years, Facebook’s public disclosures presented the...more
7/25/2019
/ Data Management ,
Data Transfers ,
Enforcement Actions ,
Facebook ,
Internal Controls ,
Personal Data ,
Policies and Procedures ,
Public Disclosure ,
Publicly-Traded Companies ,
Securities and Exchange Commission (SEC) ,
Securities Violations ,
Social Media
Institutional Shareholder Services Inc. has launched its Annual Policy Survey. The survey is a key component of ISS’ annual benchmark policy development process, looking at potential policy changes globally for 2020 and...more
7/24/2019
/ Benchmarks ,
Board of Directors ,
CEOs ,
Climate Change ,
Compensation & Benefits ,
Corporate Governance ,
Diversity ,
Executive Compensation ,
Gender Discrimination ,
Institutional Investors ,
Institutional Shareholder Services (ISS) ,
Publicly-Traded Companies ,
Surveys
The Long-Term Stock Exchange, or LTSE, has filed a rule proposal designed to create long-term value for listed issuers. As of yet, I do not believe there are any companies listed on the LTSE, but it was only recently approved...more
The SEC published a statement that encourages market participants to proactively manage their transition away from LIBOR and outlines several potential areas that may warrant increased attention during that time. It is...more
In Ephrat et al v medCPU, Inc., the Delaware Court of Chancery considered whether a separation agreement released claims of advancement pursuant to medCPU’s, or the company’s, certificate of incorporation. The plaintiffs,...more
In House v. Akorn, Inc. the United States District Court for the Norther District of Illinois Eastern division related to the proposed acquisition of Akorn by Frensenius Kabi AG. The plaintiffs in these cases sued Akorn and...more
6/26/2019
/ Acquisition Agreements ,
Attorney's Fees ,
Corporate Sales Transactions ,
Disclosure Requirements ,
Form 8-K ,
GAAP ,
Materiality ,
Motion To Intervene ,
Proxy Statements ,
Publicly-Traded Companies ,
Purchase Agreement ,
Settlement Agreements ,
Shareholders
FASB has taken a major step towards approving accounting relief for companies required to modify contracts as a result of new global reference rates which are expected as a result of the expected transition away from LIBOR....more
In Marchand v. Barnhill et al the Delaware Supreme Court overturned the Court of Chancery’s decision to dismiss a complaint asserting a Caremark cause of action for failure to state a claim. The case involved Blue Bell...more
6/19/2019
/ Bad Faith ,
Blue Bell Creameries ,
Board of Directors ,
Caremark claim ,
Cause of Action Accrual ,
Compliance Management Systems ,
DE Supreme Court ,
Dismissals ,
Failure To State A Claim ,
Food Recalls ,
Food Safety ,
Listeria ,
Public Health ,
Publicly-Traded Companies
Quoting both a nearly 70-year-old decision and a nearly 30-year-old SNL skit, the Delaware Court of Chancery, in Stein v. Blankfein et al, reaffirmed that in most circumstances decisions of directors awarding director...more
In a review of a PCAOB disciplinary proceeding the SEC took the rare step of cancelling the PCAOB’s finding that an audit partner of a Big Four firm engaged in repeated instances of negligent conduct during the audit of a...more
6/3/2019
/ Audits ,
Disclosure Requirements ,
Financial Statements ,
Form 10-K ,
Internal Controls ,
Mortgage REITS ,
Negligence ,
PCAOB ,
Publicly-Traded Companies ,
Sarbanes-Oxley ,
Securities and Exchange Commission (SEC)
The New York Stock Exchange proposes to amend Section 303A.08 of the Manual to clarify the circumstances under which certain sales of a listed company’s securities will not be deemed to be equity compensation for purposes of...more
The PCAOB posted to its website a staff guidance document, A Deeper Dive on the Communication of CAMs, developed to support implementation of the new critical audit matter requirements....more