Repurchase Disclosure Rule: The Latest in the Saga

Last night, Cooley’s Cydney Posner blogged that the Chamber has filed a motion to vacate the repurchase disclosure rule. The motion followed the SEC’s submission ...

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Closest Thing to a Crystal Ball: Fall 2023 Reg Flex Agenda

Yesterday, the Fall 2023 Reg Flex Agenda was released. With two down and three to go, the list of rulemaking we’ve been tracking in the final rule stage is quite a ...

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Annual Reporting Season: Are You Ready?

It’s hard to believe, but year-end is upon us! This means turning our attention to the annual reporting season and gearing up for the first few months of 2024 — ...

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Audit Committee Disclosures: We’ve Come a Long Way in 10 Years

Yesterday, the Center for Audit Quality announced the publication of its 10th annual “Audit Committee Transparency Barometer.” The report is compiled by the CAQ ...

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Artificial Intelligence: Tackling Disclosure Compliance

If your leadership team is in the midst of considering the impact of AI on your business – which many are – it may be time to ask, “What, if anything, should we ...

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Corp Fin Staff Updates Proxy and Schedule 14A CDIs: Counting Days

It is beginning to look a lot like proxy season! On Friday, the Corp Fin Staff issued one revised and five new Proxy Rules and Schedule 14A Compliance and Disclosure ...

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Glass Lewis Issues ’24 Voting Guidelines

Yesterday, Glass Lewis announced the publication of its 2024 Voting Guidelines. We’ll be posting memos in our “Proxy Advisors” Practice Area. Here are ...

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Back to the Drawing Board? GAO Ruling Jeopardizes Status of Crypto SAB

As Liz blogged earlier this month, the 5th Cir. recently sent the SEC back to the drawing board on its buyback disclosure rules, and it now looks like something similar ...

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Corporate Governance: Glass Lewis Releases Results of Inaugural Policy Survey

Last week, Glass Lewis released the results of its inaugural Client Policy Survey, which reflects input on corporate governance, ESG and stewardship matters from more ...

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Attention Companies Making “Net Zero” or “Carbon Neutral” Claims in California

John & Orrick’s J.T. Ho recently recorded their latest monthly “Timely Takes” Podcast, and in it, J.T. highlights California’s recently adopted Assembly ...

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AI Executive Order: What Does it Really Mean for Me?

A lot has been written about President Biden’s sweeping Executive Order on AI and its significance, especially considering the roadblocks making federal AI ...

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Artificial Intelligence: Consider Your Third-Party Risks

AI has been especially prevalent in the news this week, following the Executive Order that President Biden issued on Monday (here’s the fact sheet). Among other ...

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Share Repurchases: Aligning Your Resolutions & Disclosures

For most companies, if you’re approving or executing buybacks this quarter, it’s important to keep in mind that you’ll have to describe your actions in detail in ...

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Political Spending: Congress Wants to Halt Phantom SEC Disclosure Rule. . . Again

It feels like four years ago that we narrowly avoided a government shutdown, but it’s actually only been four weeks – and it’s likely that our politicians will ...

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SEC Chair Speaks on Climate Disclosure

As I noted in the blog earlier this week, yesterday SEC Chair Gary Gensler participated in a program organized by the U.S. Chamber of Commerce’s Center for Capital ...

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Chief Compliance Officers in the Spotlight

Earlier this week at the New York City Bar’s Compliance Institute, SEC Enforcement Director Gurbir Grewal outlined the rare circumstances in which the SEC may bring ...

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What a Year: Now is a Good Time to Revisit Your Key Policies and Controls

Over the past year, we have experienced a number of significant developments that impact public companies from a disclosure, compliance and governance perspective. ...

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SEC Proposes Rules on Volume-Based Pricing for Stock Trading

In its latest rulemaking focused on the operation of securities markets, last week the SEC proposed new Rule 6b-1 to address concerns with volume-based transaction ...

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Whistleblower Enforcement: Fix Your NDAs (And Everything Else)!

Last week was fiscal year-end for the federal government, including the SEC and other agencies. In the face of the shutdown threat, the Commission plowed forward with ...

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Internal Investigations: Factors for Boards to Consider

Last week on CompensationStandards.com, I blogged about approaches that some companies are taking to incentivize compliance and ethics. But even “good” companies are ...

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NYSE Proposes New Asset Class: ‘Natural Asset Companies’

On Friday, the SEC posted the notice and request for comment for a proposed listing standard from the NYSE that would create a new asset class for “Natural Asset ...

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SEC Staff Issues New Pay Versus Performance Guidance

Yesterday, Corp Fin issued nine new Regulation S-K Compliance and Disclosure Interpretations and updated one existing Regulation S-K Compliance and Disclosure ...

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SEC Releases Report from Small Business Forum

Yesterday, the SEC announced the release of a report to Congress summarizing policy recommendations made during the 42nd Annual Government-Business Forum on Small ...

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SEC Investor Advisory Committee Considers Reg D Changes

Last Thursday, the SEC’s Investor Advisory Committee met, and on the agenda was a discussion of exempt offerings under Rule 506 of Regulation D and the definition of ...

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FinCEN Publishes Small Entity Compliance Guide for the Corporate Transparency Act

John has been blogging about FinCEN’s rules for reporting of beneficial ownership information under the Corporate Transparency Act, which create new filing ...

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Foreign Private Issuers: Section 16 Exemption on the Way Out?

Earlier this week on his Section16.net blog, Alan Dye pointed out that the Senate recently passed legislation that would create a lot of headaches for foreign private ...

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Disclosure Transparency: Enough Already with the KPIs!

In 2020, the SEC issued a seven-page interpretive release providing guidance on disclosure of key performance indicators in MD&A. Among other things, the guidance ...

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California Moves Forward with Climate Disclosure Requirements

Pending California legislation imposing climate disclosure requirements on companies doing business in the Golden State was a topic of discussion at our 2023 Practical ...

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Enforcement: SEC Brings Another Related Party Transactions Case

We’re coming to the end of the SEC’s fiscal year, and that’s traditionally been a time when we’ve seen a lot of high-profile activity on the enforcement front. ...

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MD&A: Can Violations of Item 303 Serve as the Basis for Securities Fraud Claims?

Earlier this year, Liz blogged about a cert petition seeking clarification from the SCOTUS of the extent to which the failure to comply with the MD&A line-item ...

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SEC Brings First (and Second!) NFT Enforcement Action

In late August, the SEC announced charges against Impact Theory, LLC, an LA-based media and entertainment company, for conducting an unregistered offering of crypto ...

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EDGAR Next: SEC Proposes Filer Access & Account Management Changes

Yesterday, the SEC announced proposed amendments to Rules 10 and 11 of Regulation S-T and Form ID. The amendments relate to potential technical changes to EDGAR, which ...

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Enforcement: SEC Stresses the Importance of Dependable Estimates

A week after the Plug Power enforcement action, the SEC announced settled charges against Fluor Corporation and five current and former officers and employees alleged to ...

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Financial Reporting: FASB Approves Tax Disclosure Proposal

This summer, I blogged about FASB’s Exposure Draft to solicit public comment on proposed changes to ASU Topic 740: Income Taxes, which was FASB’s third attempt at ...

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XBRL: Corp Fin Posts Sample Comment Letter

I confess that my eyes glaze over when I see anything relating to XBRL, and I suspect I’m not the only one who suffers from this weakness. Apparently, the Corp Fin ...

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Board Composition: Benchmarking ‘Business Acumen’

Board composition is always a hot topic. During the past several years, investors have pushed for skills matrices and diverse backgrounds — in order to provide some ...

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Codes of Conduct: New Nasdaq Rule Allows Board Committees to Approve Waivers

Yesterday, the SEC posted a notice of filing — and immediate effectiveness — of a Nasdaq proposal to amend Listing Rules 5610 and IM-5610 — which is the rule and ...

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FPI Buybacks: Corp Fin Issues Three New CDIs on Form F-SR

As part of the SEC’s recent share repurchase disclosure amendments, it implemented a new Form F-SR, which foreign private issuers must use to provide the required ...

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PCAOB: ABA Business Law Section Weighs In On ‘NOCLAR’ Proposal

Liz recently blogged about some of the notable comment letters that were submitted to the PCAOB on its “NOCLAR” proposal. We can now add the ABA’s Business Law ...

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ICFR: SEC’s Chief Accountant Stresses Need for ‘Comprehensive Approach’ to Risk Assessment

SEC Chief Accountant Paul Munter recently issued a statement cautioning management and auditors against taking a narrow approach in their risk assessments when ...

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Do Rule 10b5-1 Plans Still Make Sense for Insiders?

The SEC’s focus on the use of Rule 10b5-1 by insiders in rulemakings over the past couple of years has inevitably brought us to the point of asking the question: “Do ...

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Corp Fin Issues Five Rule 10b5-1 Related CDIs

Last year’s Rule 10b5-1 amendments and new disclosure requirements have prompted a lot of interpretive issues. Corp Fin issued three CDIs back in May addressing some ...

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Latest PwC Pulse Survey: A State of Readiness for Climate Disclosure

Earlier this week, PwC released its latest Pulse Survey, “Focused on reinvention,” which asked 609 executives of US companies about managing risks and opportunities ...

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A Requiem for LIBOR: Gary Gensler Was Not a Fan

At the end of last month, in remarks before the Financial Stability Oversight Council, SEC Chair Gary Gensler bid a not-so-fond farewell to LIBOR, the rate that I ...

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Reading the Tea Leaves: What Could Cybersecurity Rules Tell Us About Final Climate Change Rules?

One of the occupational hazards of being a securities lawyer is that you are often asked to predict what the SEC or the SEC Staff will do in a particular situation, and ...

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Cybersecurity Disclosure Rules: Don’t Panic!

While the SEC’s adoption of cybersecurity disclosure requirements last month was a long time in the making, that actual adoption of the rules and the relatively short ...

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Beware! Emojis May Also Be Fraud

John recently blogged that emojis can create binding contracts and advised us to think long and hard before clicking “send” on that email or text with a cute little ...

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Cyber Report: Our Defenses Are (Still) Being Outsmarted (by Teenagers)

Consider this for upcoming board and committee discussions — especially since cybersecurity disclosures are already bound to be on your agenda. Last week, the ...

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Worrying About Antifraud Liability Everywhere

Earlier this year, Tulane law professor Ann Lipton blogged about an SDNY opinion that declined to impose liability for statements by the pre-merger target, about the ...

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Cybersecurity: How to Prepare for New Disclosures

The SEC’s cybersecurity disclosures were published in the Federal Register, confirming that all registrants other than smaller reporting companies must comply with the ...

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Earnings Calls: ESG Mentions Way Down

What a difference a year (or two) makes. With “ESG” terminology generating a lot of political hot air, the phrase seems to be evaporating from earnings calls. A ...

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Financial Reporting: FASB Proposes Detailed Expense Disclosures

At the end of July, FASB announced a proposed Accounting Standards Update that would require disaggregated disclosure of certain expense categories. I’ve blogged a few ...

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SEC Enforcement: No Signs of Slowing

If you’ve been working with companies on SEC compliance, one question that you are bound to get sooner or later is, “What happens if we fall short of what’s ...

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NOCLAR Proposal: Notable Comments

The comment period for the PCAOB’s “NOCLAR” proposal officially concluded — and although more comments will continue to roll in, now seems like a good time to ...

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Whistleblowers: Another Big Bounty … But Not For the Lawyer

Following up on the largest-ever award only a few months ago, the SEC announced on Friday that it bestowed $104 million upon seven whistleblowers whose information and ...

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AI & The Legal Profession: “Ask Not for Whom the Bell Tolls …”

A recent Wolters Kluwer/Above the Law survey of 275 legal professionals has some interesting conclusions about generative AI’s potential implications for the legal ...

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Reverse Splits: Nasdaq Proposes Notification and Disclosure Listing Standards

Last Friday, Nasdaq filed a proposed rule with the SEC that would establish listing standards related to notification and disclosure of reverse stock splits. According ...

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Capital Markets: Pre-IPO Converts

Late-stage pre-IPO companies looking for financing alternatives may want to consider issuing convertible securities. A recent Cooley blog reviews “pre-IPO converts” ...

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Climate Change Disclosure: SEC Chair Gensler Comments on Status of Proposed Rules

In remarks delivered to the Financial Stability Oversight Council, SEC Chair Gary Gensler addressed the status of the agency’s proposed climate change disclosure ...

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More on Cybersecurity: Drilling Down on Form 8-K Delay Provisions

As I mentioned in the blog yesterday, as part of the cybersecurity rulemaking, the SEC adopted new Item 1.05(a) of Form 8-K, which specifies that if an issuer ...

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More on Cybersecurity: New Periodic Disclosure for Form 10-K and Form 20-F

Under a new “Item 1C. Cybersecurity” in Part I of Form 10-K, issuers will be required to disclose information regarding the issuer’s cybersecurity risk management, ...

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Cybersecurity: Here We Go Again

I don’t know about you, but the pace of SEC rulemaking these days has me worn out. Today, the SEC will consider final rules regarding cybersecurity disclosure, ...

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In the Thick of It: Trading Arrangement Disclosure in Form 10-Q

Issuers are now filing their Form 10-Qs and questions continue to arise about the new trading arrangement disclosure that is required in Item 5 of Part II of Form 10-Q. ...

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SEC Chair Gensler Testifies on Appropriations

SEC Chair Gary Gensler recently testified before the U.S. Senate Appropriations Subcommittee on Financial Services and General Government about the SEC’s Fiscal Year ...

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Disclosures Under FASB’s New Standards on Reverse Factoring Programs

Supply chain financing has been a disclosure hot topic for a while now. In late 2022, FASB issued new standards that require qualitative and quantitative disclosure ...

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ICYMI: Enforcement of Certain California Privacy Regulations Delayed

In case you missed it, here’s part of an update on the CCPA from Gibson Dunn: On June 30, 2023, Sacramento Superior Court Judge James Arguelles held that the ...

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Recent SEC Enforcement Action Highlights Trap for the Unwary SRC

Early this month, the SEC posted an order involving a company’s failure to disclose related party transactions involving family members of corporate officers. This ...

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SEC Staff Posts Sample Comment Letter Regarding China-Specific Disclosures

As the latest in a series of reminders, the Corp Fin Staff has posted a new sample comment letter regarding the disclosure obligations of companies based in or with a ...

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Crypto Decision in Ripple Labs: What Does it All Mean?

As readers of this blog know, the SEC has — at least recently — made clear that it believes that most digital assets are a “security” under the Howey test. But, ...

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Exclusive Forum Bylaws: Here We Go Again …

I blogged just last month about the 9th Circuit’s decision to uphold an exclusive forum bylaw that effectively extinguished a shareholder derivative suit brought under ...

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Corporate Governance: Helping Your Officers Fulfill Their Vital Role

Earlier this year, the Delaware Chancery Court allowed a claim to proceed against an officer that was premised on alleged oversight failures that caused a breach of ...

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Affirmative Action Ruling: What Corporate Governance & Securities Lawyers Should Know

The other big end-of-term SCOTUS development that could impact “human capital” risks was the decision in two companion cases that struck down the use of ...

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Rule 10b5-1: Form 10-Q Model Disclosures

For most companies other than smaller reporting companies, the upcoming Form 10-Q for the quarter ended June 30 will be the first report in which disclosure (and ...

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Cybersecurity: SEC to Target CISO in Enforcement Action?

Last month, SolarWinds filed an 8-K disclosing that certain of its current and former executive officers and employees, including its Chief Financial Officer and Chief ...

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Pandemic Loans: Holy Cow, That’s a Lot of Fraud!

The Small Business Administration recently released its Inspector General’s report estimating the amount of fraud in the agency’s pandemic assistance programs. The ...

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ALJ Drama Heads to SCOTUS

Last year, a divided 5th Circuit panel ruled that the SEC’s administrative law judge system, as currently operated, was unconstitutional. That’s a big deal in and of ...

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Insider Trading — Why Do They Do It?

If you are like me, you have spent a lot of time thinking about insider trading — you learn about it in school, you watch movies like Wall Street and The Wolf of Wall ...

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Cyber Resiliency: The SEC’s Enforcement Director Weighs In

Last week at the Financial Times Cyber Resilience Summit, SEC Enforcement Director Gurbir Grewal spoke on the topic of the SEC’s approach to cybersecurity issues, ...

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The Use of Technology in Audits: PCAOB Proposes Updates to Its Standards

Earlier this week, the PCAOB announced that it had proposed amendments to its standards to address auditor responsibilities when using technology-assisted analysis of ...

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ISSB Issues First Sustainability Standards

They are here! The International Sustainability Standards Board has rolled out its inaugural standards — IFRS S1 and IFRS S2. As you may recall, the ISSB was ...

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Audit Committees: Getting the Conversation Started

While much of the focus over the years has been on the robustness of audit committee disclosures in SEC filings, the topic of direct engagement between investors and ...

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Vanguard: Respond to Majority-Supported SH Proposals – or Else

Earlier this week, Vanguard published a statement on its approach to board responsiveness to shareholders and other stakeholders. After a couple of pages devoted to the ...

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Enforcement: SEC Sanctions SPAC Audit Heavyweight

The SEC recently announced settled enforcement proceedings against Marcum LLP for what it contends were systemic quality control failures and audit standards violations ...

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Risk Factors: What Are Companies Saying About Artificial Intelligence?

Artificial intelligence is a topic that’s really exploded into public consciousness this year, so it isn’t surprising that AI risks are also beginning to feature ...

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AMC Settlement Objections: Is There a Corp Gov QAnon in Our Future?

As you might have already guessed, I’m among those who are skeptical about claims that retail investors should be encouraged to become more involved in corporate ...

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The Data on Climate Comments

Mintz recently released a quantitative analysis of the SEC’s climate and ESG-focused comment letters issued from July 1, 2021, to March 31, 2023. The article ...

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Reminders for Second Quarter Reporting

In a recent blog, Goodwin reminds us that, for calendar year-end companies, the new disclosure regarding director and officer trading plans and arrangements adopted, ...

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Financial Reporting: FASB’s Controversial Tax Disclosure Proposal

In mid-March, FASB issued an Exposure Draft to solicit public comment on proposed changes to ASU Topic 740: Income Taxes. Per FASB’s press release, comments were due ...

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The Latest Revenue Recognition Enforcement Action

Last week, the SEC announced settled charges against a company and two of its former officers related to revenue recognition practices that caused the company to file ...

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What’s the Big Deal with Ephemeral Messaging?

There’s been a lot of chatter recently about using ephemeral messaging and off-channel communications. This topic got a lot of air time from SEC Staff members and ...

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Exclusive Forum Bylaws: Will New 9th Circuit Decision Abolish Federal Derivative Suits?

In a big decision last week that has immediate implications for companies facing derivative claims in the 9th Circuit and may eventually head to the U.S. Supreme Court, ...

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Regulation M: Farewell to ‘Credit Ratings’

At their scheduled open meeting yesterday, the SEC Commissioners unanimously approved changes to Reg M to remove and replace references to “credit ratings” from the ...

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Dodd-Frank Clawbacks: NYSE Extends Effective Date!

If you’re at an NYSE-listed company and you’ve been panicking about fitting approval of a Dodd-Frank clawback policy into full compensation committee agendas this ...

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Direct Listings: SCOTUS Says Tracing Required for Section 11 Liability

Your next IPO may be a direct listing, thanks in part to a unanimous opinion issued by the U.S. Supreme Court last week in Slack Technologies v. Pirani. In the ruling, ...

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Repurchase Disclosures: SEC Enforcement Not Waiting for New Rules

Hang on to your hats! In advance of the more detailed disclosure requirements that will apply to share repurchases conducted later this year and in the future, a ...

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Evolution of a Disclaimer: The SEC Revisits Its Approach

When I first began speaking at conferences as an SEC employee back in the 1990s, it was ingrained in me that, before making any remarks, I must first give the ...

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SEC Small Business Capital Raising Hub Adds to its Building Blocks

Back in early 2022, I blogged about the efforts of the SEC’s Office of the Advocate for Small Business Capital Formation to expand the resources available to small ...

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Rule 10b5-1 Amendments: Staff Issues 3 CDIs

Corp Fin has issued three new Exchange Act Rules CDIs addressing the SEC’s recent Rule 10b5-1 amendments. The CDIs clarify the compliance dates for the new disclosure ...

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ESG: Are Investors Willing to Pay for Social Responsibility?

One of the big open questions about corporate ESG initiatives is whether investors are really willing to forego returns in order to achieve ESG objectives. According to ...

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Say-on-Pay Frequency: Reporting Your Decision on Frequency

For many companies, this is a “Say-on-Pay frequency” year, and as Dave pointed out a few months ago, failing to timely file an Item 5.07(d) Form 8-K disclosing the ...

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Compliance: Third Party Risk Management Tops List of Priorities

According to a recent survey by Compliance Week and FTI Consulting, third party risk management (TPRM) tops the list of priorities for corporate compliance officers this ...

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Virtual Meetings: Enhancing the Transparency of Your Q&A

In a recent Soundboard Governance blog, Doug Chia notes the top investor complaint with VSMs is the possibility that companies may be gaming the Q&A session by ...

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Should Private Markets Be Smaller?

As the Jim Hamilton blog recently highlighted, Better Markets, the nonprofit organization focused on Wall Street reform, released a fact sheet last month arguing that ...

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ESG: New Data Tool Shows Investors’ Carbon Exposure

Last week, State Street Corporation announced three new publicly available data sets that will show portfolio allocation trends among large institutional investors. ...

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Proposed 2023 DGCL Amendments Address Retail Voting Apathy

A recent alert from Richards Layton & Finger summarizes the 2023 proposed amendments to the DGCL expected to be considered by the General Assembly this year. As the ...

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Material Weaknesses Trending Up

A recent report from PwC addresses a recent resurgence in material weaknesses with the number disclosed in 10-Ks increasing by 73% from 2021 to 2022 and 25% from the ...

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SEC’s New Share Repurchase Rules Challenged

Last Friday, the U.S. Chamber of Commerce issued a press release that it has filed a lawsuit in the U.S. Court of Appeals for the Fifth Circuit challenging the SEC’s ...

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Climate Change Disclosure: Are Companies Using the Time to Prepare?

Liz and Lawrence recently blogged that the climate change rules are still under consideration at the SEC, and final rules may be delayed until later this year. Companies ...

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Small Business Capital Formation: Reg A Trends

A recent study from a Marquette finance prof examines trends in Reg A offerings post-JOBS Act. This is useful since one of the goals of the JOBS Act was to make ...

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Audit Committee Guide: Including Model Charters, Policies & Questionnaires

Wachtell Lipton recently published an updated version of its longstanding “Audit Committee Guide.” The 2023 edition weighs in at 212 pages. Here’s an excerpt about ...

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SEC Climate Disclosure: Work in Progress

We’ve been getting a lot of questions about when to expect the SEC’s final climate disclosure rule. The short answer is we don’t know for sure. A new Reg Flex ...

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Regulating Crypto: Coinbase Sues the SEC!

The SEC has never been super cozy with the crypto industry, but things have gotten especially prickly lately. In one of the latest illustrations of friction, Coinbase ...

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Share Buyback Disclosure: Getting to the ‘Why?’

I was so focused in the blog yesterday on the actual share repurchase disclosure requirements that the SEC adopted on Wednesday that I did not get a chance to address ...

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SEC Adopts Share Repurchase Disclosure Amendments: It Could Have Been Worse

Yesterday, by a 3 to 2 vote, the SEC adopted amendments to the share repurchase disclosure requirements. As originally proposed back in December 2021, the amendments ...

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Crisis Management: Trends and Best Practices

Managing through a crisis is a part of life for public company boards and management, so it is now more important than ever to consider the approaches that companies are ...

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LIBOR Transition: The SEC’s Investor Bulletin

My relationship with LIBOR goes way back. In one of my finance jobs before I became a lawyer, I was tasked with retrieving the LIBOR rate from the Bloomberg terminal ...

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Auditor Independence — It’s Not Just a Checklist

As we’ve noted previously on this blog, auditor independence is an issue that audit committees, in addition to auditors, need to stay on top of since violations of the ...

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Accounting Lawsuits — Probably More Expensive than Investing in ICFR

Cornerstone Research recently released a report, Accounting Class Action Filings and Settlements — 2022 Review and Analysis, that reviewed lawsuits related to ...

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Many Lessons to Come from Suit Against Fox Board

The first of what may be many shareholder derivative suits related to the Fox News coverage of the 2020 presidential election was filed on April 11th, and multiple legal ...

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Do You Have a Non-GAAP Policy?

The SEC’s most recent non-GAAP enforcement action has triggered new calls for companies to adopt non-GAAP policies if they haven’t already. That’s partly because, ...

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Attorney-Client Privilege: Narrow Path for Withholding Info Sought by Former Directors

The Delaware Chancery Court’s recent decision in Hyde Park Venture Partners Fund III, L.P. v. FairXchange, LLC, (Del. Ch.; 3/23), serves as a reminder that a ...

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So You Had a Bad Day: Congressional Republicans Grill SEC Chair Gensler

SEC Chair Gary Gensler testified before the House Financial Services Committee yesterday. This was the first time he’s testified in front of a GOP-controlled committee ...

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Direct Listings: SEC Sits Out Slack Technologies SCOTUS Appeal

The SCOTUS heard oral arguments yesterday in the Slack Technologies case, which focuses on whether Section 11 of the Securities Act applies to direct listings. If you ...

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Rule 14a-8: Similar Objectives, Different Outcomes for 2 Culture War Proposals

In the past two weeks, the Staff of the Division of Corporation Finance issued responses to no-action requests addressing two substantively similar “culture war” ...

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DEI Disclosures Are Creating Fodder for Plaintiffs

As Meredith recently flagged on our “Proxy Season Blog,” shareholder proposals on workforce diversity disclosures, civil rights audits and other diversity-related ...

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SEC Staff Reminds China-Based Issuers, ‘You’re Still on a Short Leash’

When we last checked in on the drama of the Holding Foreign Companies Accountable Act, the PCAOB was striking an optimistic tone on its ability to inspect and ...

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Insider Trading Policies: Key Compliance Dates for New Disclosures

Thanks to Markel’s Karl Strait for noticing that the SEC’s “Small Entity Compliance Guide” for the new rules on insider trading arrangements and related ...

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ESG: Large Silicon Valley Co’s Continue to Enhance Disclosures

A new Fenwick memo shows that many of Silicon Valley’s largest tech companies are making strides on ESG disclosures, even as providing the info remains voluntary at ...

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Clawbacks: One Policy or Two?

One of the implementation challenges noted in the clawback comment letters that were submitted by a group of law firms to the SEC earlier this week is that if issuers ...

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DEIA Efforts at the SEC: A Historical Perspective

The SEC’s Office of Minority and Women Inclusion was created after my time at the SEC and until recently, I was not aware of the office’s history and the ...

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Chair Gensler Seeks More Resources for the SEC

Last week, SEC Chair Gary Gensler testified before the Subcommittee on Financial Services and General Government of the U.S. House Committee on Appropriations. Chair ...

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Are the Robots Coming for Your Auditor?

One of the takeaways from the CAQ’s recent analysis of audit quality reports is that recently, some firms have included discussion on how they employ data analytics ...

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Interlocking Directorates: The Heat is On

Earlier this month, the DOJ announced that five directors resigned from four corporate boards and one company declined to exercise board appointment rights in response ...

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Nasdaq Board Diversity Matrix: Compliance Considerations for Year 2

Nasdaq’s board diversity listing standards required companies to include the Board Diversity Matrix in their proxy statement or on their website for the first time in ...

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SVB Collapse: Disclosure Issues for Public Companies

In the wake of the collapse of SVB and the resulting uncertainties in the banking sector, public companies need to give some thought to what they need to say about the ...

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Compliance Dates: Form 4, 5 Checkbox & Electronic Form 144 Deadlines Looming!

Well, you can’t say we haven’t warned you about a couple of looming compliance deadlines for recent rule changes — but we’ll do it again anyway with the help of ...

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SEC Cautions Investors on Crypto Securities

The crypto bros have been having a bit of a moment in recent weeks, as Bitcoin rallied while bank stocks burned. Some crypto-evangelists have contended that recent ...

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Securities Offerings: SEC Taking a Broad View

The SEC recently announced charges against a “crypto asset entrepreneur” and three of his wholly owned companies for what the SEC is saying were unregistered offers ...

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Shadow Trading: Report Raises the Profile of ‘Potentially Troubling’ Trading Patterns

The SEC scored a big win last year on a novel “shadow trading” case that it brought in 2021, when a federal court allowed the litigation to proceed. That case ...

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Proxy Voting and Investments: DOL’s ‘ESG’ Rule Survives Death Threat

President Biden recently vetoed a resolution that would have overturned the latest version of the DOL’s “ESG” rule, which was vulnerable because it was just ...

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BlackRock’s Letter to Shareholders: Sign of the Times

Two years ago, I wrote that anticipating Larry Fink’s annual letter to CEOs, a 10-year tradition which typically has arrived in January, was like waiting for Moses to ...

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Non-GAAP: New SEC Enforcement Action Spotlights Disclosure Controls

It’s been a couple years since we’ve had a non-GAAP enforcement action. Last week, the SEC reminded us that they’re still watching for problems. The Commission ...

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ISS Launches New Global Board-Aligned Voting Policy

ISS recently released its Global Board-Aligned U.S. Voting Guidelines and Global Board-Aligned International Voting Guidelines. ISS describes these new guidelines as ...

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Could Syndicated Loans Be Securities?

The enduring regulatory drama over digital assets has focused much attention these past few years on the definition of “security” in the Securities Act and the ...

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The Dodd-Frank Act Stragglers

With all of the focus these past few days on upheaval in the banking industry, including discussion of the compensation paid to executives of troubled financial ...

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Crypto OpEd: Chair Gensler Weighs In

In a recent OpEd piece published in The Hill, SEC Chair Gensler calls on crypto firms to do their work within the bounds of the law, or they shouldn’t do it at all. ...

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Three Years Later: What Have We Learned?

Over the weekend, we marked three years since COVID-19 was officially declared a pandemic by the World Health Organization. Despite the passage of time, my memories of ...

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Disclosure Controls: Lessons From Recent SEC Enforcement Actions

Last month, Liz blogged about the SEC’s recent enforcement action against Activision Blizzard, which is the latest action premised solely on an issuer’s alleged ...

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Climate Disclosure Rules: To Scope 3 or Not to Scope 3, That is the Question …

The Jim Hamilton Blog recently flagged the competing efforts of Democrats and Republicans on Capitol Hill to influence the substance of the SEC’s climate disclosure ...

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Caremark: Del. Chancery Dismisses Claims Against McDonald’s Directors

In January, the Delaware Chancery Court dropped a bit of a bombshell on Corporate America when it refused to dismiss Caremark claims against a former McDonald’s ...

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Officer Exculpation: Most Proposals Getting a ‘Thumbs Up’ From ISS

Many Delaware companies are considering asking stockholders to approve officer exculpation charter amendments this proxy season. If you’re working with one of them, be ...

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Disclosure Controls: Re-Evaluate in Advance of SEC Rulemaking

With the SEC’s adoption of cybersecurity and climate change disclosure rules looming and intensifying investor scrutiny of disclosure in these areas, a recent Perkins ...

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Rule 10b5-1 Plans: SEC & DOJ Bring First-Ever Criminal Charges

Big news on the “insider trading” front. Earlier this week, the SEC announced that it had filed a civil complaint against the CEO and Chair of a health care company ...

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IPOs: When Will They Come Back?

Earlier this month, a flurry of IPOs successfully closed on an aggregate $1.17 billion in proceeds — according to a recent Reuters article — with several more ...

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Warren Buffett: ‘Non-GAAP’ Can Be Good or Evil

Warren Buffett’s annual letter to Berkshire Hathaway shareholders came out this weekend — along with the annual report. Like last year, the Oracle of Omaha doesn’t ...

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DOJ Announces Voluntary Self-Disclosure Policy for U.S. Attorney’s Offices

On Wednesday, the Department of Justice announced a new corporate voluntary self-disclosure (VSD) policy that is applicable to all 94 U.S. Attorney’s Offices in the ...

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NYSE Posts Clawback Rule Filing

Last October, the SEC adopted Rule 10D-1, which directs the national securities exchanges to adopt listing standards that will apply the disclosure and clawback policy ...

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SEC Investor Advisory Committee to Discuss Growth of Private Markets

The SEC announced that its Investor Advisory Committee will meet next Thursday, March 2, and one of the items on the agenda will be a panel discussion examining the ...

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The Final Countdown: Rule 10b5-1 Changes Kick in Next Week

Time flies when you are having fun — it seems like we were just taking down the holiday decorations, and now the end of February is rapidly approaching! That means ...

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Direct Listings: Former SEC Chair & Commissioner File Amicus Brief in Slack Case

In December, I blogged about the SCOTUS’s decision to grant Slack Technologies cert petition in a case addressing the application of Section 11 of the Securities Act ...

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SEC Adopts T+1 Settlement Cycle

Yesterday, the SEC announced the adoption of rules implementing a T+1 settlement system. Here’s the 314-page adopting release and here’s the two-page fact sheet. ...

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Staff Comments: Companies Need to Beef Up Board Risk Oversight Disclosures

Item 407(h) of Reg S-K requires companies to disclose “the extent of the board’s role in the risk oversight of the [company], such as how the board administers its ...

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Meme Stocks: AMC Solves Its Retail Voting Problem?

When it comes to finding unconventional ways to raise cash, AMC will find a way — and selling equity to do it is a key part of the meme stock playbook, as another ...

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Securitizations: SEC Proposes Conflict of Interest Rules

I don’t know that this is a development that’s likely to be high on the list of our members’ priorities, but I feel duty-bound to report that yesterday, the SEC ...

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Dual Class Structures: Investor Coalitions Against Them Raise Antitrust Concerns?

Between the FTC’s efforts to persuade judges that antitrust laws mean whatever it says they mean and the anti-ESG crowd’s position that group initiatives targeting ...

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White Collar: DOJ Revises Criminal Division’s Corporate Enforcement Policy

In a recent speech, Assistant AG Kenneth Polite announced important changes to the DOJ’s Corporate Enforcement Policy (CEP). The changes are designed to provide ...

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Advance Notice Bylaws: Shareholder Proponent Urges ‘Guardrails’

I blogged last fall about a reason to be cautious when amending advance notice bylaws in response to the SEC’s newly effective universal proxy card rules: hedge fund ...

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SEC Proposes Updates to Ethics Rules Governing Securities Trading by Personnel

While we are considering potential changes to corporate insider trading policies in the wake of the SEC’s recent Rule 10b5-1 amendments, the SEC will consider changes ...

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New Form 10-K Checkboxes: Some Urgent Staff Guidance

One of the disclosure requirements from the SEC’s recently adopted clawback rules is a set of new checkboxes for the cover page of the Form 10-K, Form 20-F and Form ...

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Caremark: Claim Against Corporate Officer Survives Motion to Dismiss

On Wednesday, the Delaware Chancery Court declined to dismiss fiduciary duty claims against a corporate officer arising out alleged oversight failures that allowed “a ...

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FASB Extends Reference Rate Transition Guidance

Back in December, the Financial Accounting Standards Board announced an Accounting Standards Update that extends the period of time preparers can utilize the guidance in ...

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Pay Versus Performance Disclosure: Peer Group TSR

The new pay versus performance disclosure requirement is a big focus right now, as issuers begin preparing their proxy statements for 2023 annual meetings. As with any ...

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How Would the SEC Revisit the Definition of Securities Held of Record?

Perhaps one of the most controversial proposals that the SEC has not yet acted on is a proposal to amend the “held of record” definition for purposes of Section ...

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Climate Disclosure: Political Support for Scope 3 Disclosure Weakening?

The SEC’s effort to require some companies to provide disclosure about Scope 3 emissions is probably the most controversial part of its proposed climate change ...

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Cyber Disclosure: SEC Enforcement Tells Biglaw Firm to Name Hacked Clients

In the latest sign that the SEC’s Enforcement Division continues to investigate whether public companies are properly disclosing cyber attacks — and whether any ...

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Glossy Best Practices

Alas, the Information Age has robbed us of many of life’s little pleasures, including access to hard copies of glossy annual reports. Nonetheless, the glossy annual ...

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SEC Crypto Enforcement Up 50% in 2022

Last week, the SEC announced that it had charged Genesis Global Capital and Gemini Trust Company for the unregistered offer and sale of securities to retail investors ...

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Securities Litigation: Company Not Liable for Analysts’ Take on CEO’s Statements

I think most securities lawyers are a little paranoid when it comes to their public company clients’ interactions with securities analysts. After all, the 2nd Cir. ...

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Crypto Exchanges: SEC Enforcement Sweep On the Way?

Will the fallout from 2022’s crypto meltdown lead to an SEC enforcement sweep targeting crypto exchanges in 2023? Former SEC Internet Enforcement Chief John Reed Stark ...

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Annual Meetings: Building the Perfect Virtual Shareholders’ Meeting

Soundboard Governance’s Doug Chia recently blogged his thoughts on how to build a perfect virtual annual meeting. The best thing about the blog is that Doug doesn’t ...

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Crypto: Is It a Security? The Answer Isn’t Always Easy

The SEC has brought enforcement actions against a number of companies offering digital assets in which it has alleged that the assets are a “security” within the ...

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State Street to Offer More Investors ‘Voting Choice’ in 2023

Last week, State Street Global Advisors announced a new program that will offer “proxy voting choice” to more institutional funds, as soon as this proxy season. The ...

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BlackRock’s ’23 Voting Guidelines: No Major Changes

Yesterday, BlackRock Investment Stewardship issued its 2023 proxy voting guidelines — along with updated Global Principles that outline the seven key governance themes ...

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3.7 Billion Reasons to Care About Governance

As Lawrence blogged yesterday on PracticalESG.com, the CFPB posted a consent order with Wells Fargo earlier this week, in which the bank agreed to pay $2 billion to ...

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Financial Reporting: PCAOB Report Says Audits with Deficiencies Increased in 2021

According to a recent PCAOB Staff Report, public company auditors didn’t have a great year in 2021. The report says that, according to preliminary inspection data, the ...

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Direct Listings: SCOTUS Grants Cert in Slack Technologies Case

Yesterday, the SCOTUS granted Slack Technologies’ cert petition in a case raising the issue of whether Section 11 and Section 12(a)(2) of the 1933 Act require a ...

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Rule 10b5-1: SEC Adopts Amendments to Conditions & Disclosure Requirements

Yesterday, the SEC adopted amendments to Rule 10b5-1 imposing new conditions and disclosure requirements for 10b5-1 plans and securities transactions by companies and ...

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Board Minutes: Dealing with Privilege Issues

For some reason, I’ve got a real weakness for articles about best practices for keeping board minutes — which is kind of strange because of all the routine tasks I ...

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Pay Versus Performance Disclosure: What Will Investors Do?

I have been discussing the new pay versus performance disclosure requirement with management teams and boards of directors over the past few months, and the most ...

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SEC Reopens Comment Period for Share Repurchase Disclosure Proposal

Yesterday, the SEC announced that it is reopening the comment period (again) for its share repurchase disclosure rulemaking, which was proposed back in December 2021 at ...

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Universal Proxy: Disclosure Obligations

As you are preparing your proxy materials this year, keep in mind that the SEC’s universal proxy rulemaking made changes to the disclosure requirements that apply ...

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ISS Announces 2023 Benchmark Policy Updates

As Liz noted on the Proxy Season Blog, last week ISS announced updates to its benchmark voting policies that will be effective for the 2023 proxy season. Here are the ...

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Board Diversity: A Trickle-Down Effect?

With so much attention on board diversity these days, an inevitable question is whether the increased diversity of corporate boards influences broader diversity gains in ...

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SEC’s Strategic Plan: Continued Goal for Modernized Disclosure

Last week, the SEC announced its Strategic Plan for fiscal years 2022–2026. As Dave previewed in August when the draft plan was issued, the 16-page Strategic Plan ...

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Board Diversity: More Progress Across the Pond

U.K.-listed companies are assembling more diverse boards and executive management teams than we are in the U.S., ahead of new rules from the U.K. Financial Conduct ...

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Rule 15c2-11: SEC Extends Relief for Private Debt Issuers to 2025

John blogged a few weeks ago that private debt issuers would soon be finding themselves between a rock (significantly expanded disclosure requirements) and a hard place ...

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SEC Takes Its Place in ‘Crypto Creditor’ Line

It’s getting hard to keep up with all of the crypto collapses that have followed the FTX implosion, but apparently BlockFi filed for bankruptcy yesterday. The part of ...

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ESG: Materiality Isn’t Just About the Bottom Line — or Maybe Even About the Bottom Line

When it comes to ESG disclosure, it’s become apparent that a lot of folks at the SEC don’t seem to approach the materiality concept in the traditional way. A recent ...

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Board Diversity: Welcoming New Board Members

Liz recently blogged about how the director onboarding process is evolving. An article from Nasdaq’s Center for Board Excellence focuses on a discrete aspect of the ...

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Officer Exculpation: Glass Lewis Weighs In

Ever since Delaware amended its corporate statute to permit charter amendments exculpating certain officers from damages liability for certain duty of care breaches, ...

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