Corp Fin Releases Updated Financial Reporting Manual

Yesterday, Corp Fin announced an update to the Division’s Financial Reporting Manual. The Manual is updated as of October 30, 2020 and sections with updates are marked ...

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SEC Adopts Amendments to Reg S-T Permitting Use of Electronic Signatures!

Yesterday, the SEC announced that it adopted rules to facilitate electronic submission of documents. Welcome news to many, the Commission adopted rule amendments to ...

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Comment Letter Trends: Top 10 Topics in Reviews

Deloitte recently issued a 218-page roadmap on comment letter trends that includes developments on financial reporting topics through November 6, 2020. In terms of ...

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Corp Fin Updates “Securities Act” CDI (Withdraws 6 Others)

On Friday, Corp Fin updated one and withdrew several Securities Act CDIs. These CDIs relate to equity line financing arrangements and PIPEs that can raise issues under ...

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ISS Issues 2021 Policy Updates

Yesterday, ISS announced its policy updates for next year. Read the policy document. The big news this year is that ISS is ratcheting up the pressure on companies to ...

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Board Diversity: Companies Focus on Overboarding to Move the Needle

Last week, Liz blogged about a recent report from the NYSE & Diligent that said that 81% of directors indicated that their board either already has a plan for ...

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COVID-19: U.S. Chamber Petitions SEC for Liability Protection

The COVID-19 pandemic has already prompted a wave of litigation, including nearly three dozen securities lawsuits. In an effort to protect businesses from what it ...

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Virtual Annual Meetings: Gearing Up for 2021

At this point, most of us have reconciled ourselves to the fact that things aren’t getting back to normal anytime soon. Since that’s the case, companies will need to ...

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Disclosure: Prescriptive v. Principles-Based Approaches

Since the S-K modernization amendments just became effective, I thought a recent Bass Berry blog provided a timely illustration of the differences in disclosure ...

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Regulation S-K Modernization: Corp Fin Issues Three Transitional FAQs

Yesterday, Corp Fin issued three FAQs to address transitional issues that companies have been wondering about in light of the recent amendments of Regulation S-K Items ...

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Critical Audit Matters: PCAOB Says CAMs Made Ripples, Not Waves

Last week, the PCAOB issued an analysis of the impact of the “critical audit matter” disclosure requirement, which has already been in effect for large accelerated ...

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Measuring “TCFD” Disclosures

According to a progress report from Climate Action 100+, 120 companies now have a board committee with express responsibility for oversight of climate risks and 59 ...

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SEC Simplifies Exempt Offering Framework!

Following its open meeting yesterday, the SEC announced that it adopted amendments to simplify and harmonize the private offering framework. The Commission had proposed ...

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DOL Leaves “ESG Investing” on Life Support

Then again, this administration has done a thing or two to try to divert attention from ESG issues. On Friday, the Department of Labor published the final version of its ...

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Board Racial Diversity Disclosure: Letter Campaign to Entire Russell 3000!

Yesterday, I blogged about a letter-writing campaign focused on climate lobbying disclosure. With diversity disclosure getting a lot of attention these days, there’s ...

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Looking Back at 16 Years of ICFR

Section 404 of the Sarbanes-Oxley Act requires companies to review internal control over financial reporting and report whether it’s effective. John recently wrote ...

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Insights on Deducting “Legitimate Expenses” from Disgorgement Awards

One open question from the Supreme Court’s Liu decision relates to determining “legitimate expenses” that must be deducted from disgorgement awards so the “net ...

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ISS’ Proposed Board Diversity Policy Change: Aggregated Data Won’t Cut It

The comment period for ISS’ policy changes closes at 5 pm EST today, and when Liz wrote about the potential changes a couple of weeks ago, one U.S. change that has ...

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Human Capital: Addressing the New Disclosure Requirement

One of the problems with adopting a principles based disclosure requirement is that you often end up with some poor soul staring at a blank sheet of paper trying to come ...

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ICOs: Knock it Off With the SAFTs Already, Will Ya?

Earlier this year, Liz blogged about an SEC enforcement action targeting the “Simple Agreement for Future Tokens,” a once popular method of structuring ...

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S-K Modernization: The Questions Just Keep Coming. . .

We continue to get a lot of questions on the SEC’s recent amendments to Item 101, 103 and 105 of Regulation S-K. As Liz blogged last month, some of these questions ...

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Forum Selection: ISS Policy Proposal Backs Exclusive Forum Bylaws

Last week, Liz blogged about ISS’s benchmark policy document. In addition to the ESG and diversity policy changes that she mentioned, page 34 of the document sets ...

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Financial Reporting: SEC Amends Auditor Independence Rules

On Friday, the SEC announced amendments to the auditor independence requirements set forth in Rule 2-01 of Regulation S-X. The amendments are intended to update the ...

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IPO Governance Trends: Takeover Defenses Remain Common

According to the latest survey of IPO governance trends by Davis Polk, there’s been “widespread and generally increasing adoption” of takeover defenses at both ...

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COVID-19: Audit Committee Questions for the “New Normal”

COVID-19 disclosures remain a top area of focus for audit committees, according to a KPMG survey. Specifically, the uncertainty caused by the pandemic — along with ...

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Misleading Disclosures: SEC Enforcement is Watching…Everything

Enforcement Division Director Stephanie Avakian recently gave a speech to recap actions over the past three years (also see the speech from SEC Chair Jay Clayton). The ...

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Insider Trading Enforcement: Effect of Supreme Court’s Liu Decision

Last summer, the U.S. Supreme Court’s decision in Liu v. SEC reaffirmed the SEC’s authority to seek disgorgement as an equitable remedy in enforcement actions. But, ...

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SEC Proposes Conditional Exemption for “Finders” Involved in Capital Raising

More than three years after the SEC’s Advisory Committee on Small and Emerging Companies issued a recommendation, the SEC voted 3-2 to propose a conditional exemption ...

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Circle the Wagons: Create Assurance Around ESG Data

We’ve blogged before about the importance of oversight and disclosure controls related to sustainability disclosures. Just last week, John blogged about CII’s ...

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Director Survey: Room for Improvement with Board Refreshment

PwC issued its annual survey of nearly 700 U.S. directors. The survey covers a lot of ground and identifies several areas of opportunity for boards, including those ...

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Valentine’s Day Trip Flagged in SEC Enforcement Action

Last week, the SEC announced several enforcement actions as it wrapped up its fiscal year; here’s John’s blog about an alleged MD&A “Known Trends” violation. ...

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Stock Exchanges: Long-Term Stock Exchange Debuts

We’ve previously blogged about efforts to get the LTSE off the ground — and earlier this month, they culminated with the official opening of the exchange. Here’s ...

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SEC Enforcement: HP Cited for Alleged MD&A “Known Trends” Violations

The last day of the SEC’s fiscal year included the announcement of a settled enforcement proceeding against HP, Inc. Among other things, the proceeding involved HP’s ...

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SEC Enforcement: Fiat-Chrysler Tagged for Misleading Emissions Disclosure

Earlier this week, the SEC announced settled enforcement proceedings against Fiat-Chrysler arising out of allegedly misleading disclosures about its compliance with ...

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Staff Comment Trends: Corp Fin’s Top 10

Ernst & Young recently issued its annual review of Staff comment letters. The number of comment letters issued during the year ended June 30, 2020 declined by 15% ...

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ISS Releases Policy Benchmark Survey

Last week, ISS released the results of its 2020 policy benchmark survey. Here are some of the highlights: Pandemic-Related Issues   ISS policy guidance in ...

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BRT Says It Wants to Put a Price on Carbon… Over the Next Three Decades

Last week, the Business Roundtable released “Principles & Policies Addressing Climate Change” — a 16-page statement that declares the U.S. should adopt a ...

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Shareholder Proposals: SEC Modernizes Rule 14a-8!

As we covered in real-time yesterday at our “Executive Compensation Conference,” (archives will be available soon, and you can still register for on-demand viewing ...

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OTC: SEC Amends Information Requirements

Last week, the SEC closed the loop on a proposal from last year and adopted amendments to Rule 15c2-11 to modernize the type of information that needs to be available ...

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Perks: New CDI Addresses COVID-19 “Benefits”

Yesterday, mere hours after Alan Dye & Mark Borges covered the complexities of evaluating “perks” in a COVID-19 environment at the first day of our “Proxy ...

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B-Corps: Getting More Useful?

Last week, Veeva Systems — a NYSE-traded company with a $40B market cap — announced that it had formed a board committee to explore becoming a public benefit ...

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Compliance Program Survey: Prioritizing People Issues Can Improve Effectiveness

Back in June, I blogged about NAVEX Global’s benchmarking data for compliance hotlines. For a more general look at compliance program benchmarking information, NAVEX ...

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Inline XBRL: Ins & Outs of “Exhibit 104”

A couple weeks ago, Broc blogged about some confusion around the Inline XBRL requirements that will be required for Form 10-Q filings by large accelerated filers this ...

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10-K/10-Q/8-K “Cover Page” Changes: Courtesy of the Fast Act

A few weeks ago, the SEC adopted rules to implement the “Fast Act” – and when the rules go effective next month, they’ll make the following changes to the ...

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D&O Questionnaires: Few Changes for 2020 Proxy Season

A Stinson blog highlights rule changes that could prompt a few tweaks to D&O questionnaires. Specifically, the blog notes that: – Companies can now rely on ...

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Quest for Director Diversity Information

Given the sensitivity of the issue, some may be grappling with how to approach gathering director diversity information. Investors are increasingly asking for board ...

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Financial Reporting: Looking Again at Effects of COVID-19

Financial reporting in 2020 has turned out to be more of a laborious exercise than most companies envisioned at this time last year. And, a Deloitte memo says that ...

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Vanguard’s Expectations for Board Diversity

Following the killing of George Floyd, investors are increasingly calling for change and looking for company and board diversity data. A few weeks ago, I blogged about ...

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Shareholder Engagement: Effect of Proposed Amendments to Form 13F

Ever since the SEC proposed amendments to increase the Form 13F reporting thresholds, there has been ongoing commentary voicing concerns. A recent MarketWatch opinion ...

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Supply Chain Finance: The Accounting Backstory

When I first saw the references to “supply chain financing” in Corp Fin’s COVID-19 guidance, I wasn’t really sure what the big deal was. I’m guessing that some ...

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Brain-Teaser: “11:59pm or 12:01am” for Contracts?

In our “Q&A Forum,” this question was recently posed (#8275): “For legal purposes, when does a day end and next day begin? We are reorganizing certain subs as ...

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Enforcement: SEC Brings Action for Failing to Deliver Final Prospectus

Here’s something you don’t see every day — last week, the SEC brought settled enforcement actions against an issuer and an underwriter for failing to deliver final ...

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Short-Term Investors: Maybe They Aren’t So Bad After All?

In the corporate governance debate, there’s perhaps no more pejorative term than “short-termism.” But an “Institutional Investor” article cites a recent study ...

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COVID-19 Risk Factors: 2nd Quarter Edition

We’ve been keeping an eye on pandemic risk factors since the “Before Time” (seriously, we first mentioned them in January). Most recently, we blogged about how to ...

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Eight Steps to Better Board Succession

A Heidrick & Struggles memo describes the increasingly complicated and important issue of board composition — and notes that too few boards rigorously evaluate ...

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Whistleblower Rulemaking: Cancelled…For Now

Earlier this week, the SEC announced two pretty substantial whistleblower awards — a joint $2.5 million award and a $1.25 million award — which looked like a lead-up ...

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Caremark: 10-K Disclosure Can Show Directors Ignored “Red Flags”

Last week, the Delaware Court of Chancery rejected a motion to dismiss in Teamsters Local 443 Health Services & Insurance Plan v. Chou — making it the latest in a ...

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Supply-Chain Finance: Corp Fin Stepping Up Scrutiny

Corp Fin has sent comment letters to several well-established companies to request more info on their supply-chain finance arrangements — a practice that a WSJ article ...

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Palantir’s “Direct Listing” IPO

Last week, Palantir filed the Form S-1 for its anticipated “Spotify-style” IPO. Despite new NYSE rules on “primary” direct listings, the company isn’t selling ...

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Dialed-in: SSGA Letter Calls for Racial Diversity Disclosures

Earlier this summer, I wrote about how Calvert called on companies and investors to take more tangible steps in addressing racial inequities. SSGA is also pushing for ...

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SEC “Modernizes” Reg S-K! Risk Factors, Human Capital & More

At a recent open meeting, the SEC adopted amendments to parts of Regulation S-K — – specifically relating to Item 101 (business description), Item 103 (legal ...

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ESG Disclosure Trends: SEC Filings Increasingly Highlight Disclosures on Company Websites

A recent White & Case report summarizes ESG disclosure trends of the top 50 Fortune 100 companies by revenue. It’s a good look at where disclosure is headed as all ...

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SV Risk Factor Disclosure Trends: Potential Impact of Proposed Rulemaking

Wilson Sonsini recently came out with its risk factor trends report among Silicon Valley’s 150 largest public companies. One item the report delves into is the ...

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SEC’s Reg S-T Proposal: The End of “Fake” Filings?

Late Friday afternoon, the SEC issued proposed amendments under Regulation S-T aimed at promoting reliability and integrity of Edgar submissions. If adopted, the ...

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Business Interruption Insurance: COVID-19 Plaintiffs Get a Win

We’ve previously blogged about the challenges facing companies trying to assert claims under business interruption policies for pandemic-related losses, and the early ...

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ESG Bonds: The Debt Markets Can’t Get Enough!

If you’re an investment grade issuer and want to lower your cost of capital the next time you go to market, a Politico article says you’d be well advised to use the ...

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Audit Committees: PCAOB’s Conversations with Committee Chairs

Earlier this month, the PCAOB issued a report on its conversations with audit committee chairs about how audit committees are thinking about the effect of COVID-19 on ...

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Supply Chains: SEC Reporting on China Forced Labor on the Horizon?

Companies with supply chains in China should be prepared to comply with enhanced due diligence and reporting requirements. That’s the conclusion of a Foley Hoag blog, ...

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SEC Calendars Open Meeting: Shareholder Proposals on the Agenda

The SEC sure isn’t shying away from controversial topics this summer. Less than a month after adopting a somewhat watered-down version of its proposed proxy advisor ...

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#MeToo: Still Making Waves

Earlier this week, McDonald’s filed a Form 8-K to announce that it had filed a complaint in the Delaware Court of Chancery against its former CEO, Steve Easterbrook, ...

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Blockchain & Internal Control: COSO’s Perspective

A 40-page memo, recently commissioned and released by COSO, explains how companies can use blockchain technology to create more robust internal controls — and also ...

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BRT’s “Corporate Purpose” Statement: What Did CEOs Intend?

A year ago next week, the Business Roundtable made waves with its “Statement on the Purpose of a Corporation” — in which nearly 200 CEOs expressed a “fundamental ...

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Universal Proxy Rules: Consensus Views

Last month, John wrote that the universal proxy proposal was on the SEC’s Reg Flex Agenda for finalizing in the near-term. Now, a letter from an informal “Universal ...

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Reg FD Gets a “Kodak Moment”

Last week, the WSJ reported that the SEC is investigating the circumstances around Eastman Kodak’s announcement of a $765 million government loan to make COVID-19 ...

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CPRA: California 2020 Ballot Initiative Means Potential Changes to CCPA

Back in May, I wrote on the Mentor Blog about California’s ballot initiative — the California Privacy Rights Act (CPRA). And, earlier this summer, I also wrote about ...

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Secure FTP for Supplemental Materials & Rule 83 CTRs

Earlier this week, in response to continued health and safety concerns from COVID-19, Corp Fin issued a statement providing a temporary secure file transfer process for ...

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What Does ESG Mean to You and Me?

Rhonda Brauer shares her thoughts about SEC Commissioner Elad Roisman’s recent Keynote Speech at the Society for Corporate Governance’s National ...

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Scrutiny Intensifies on Political Spending

Following the killing of George Floyd, attention has increased on diversity and inclusion, among other matters. Earlier this summer, Liz blogged on our “Proxy ...

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Looking Back at Restatements: Trending Down in Number & Severity

Audit Analytics recently released its annual report on financial restatement trends — the report looks at trends over the last 19 years. Since 2015, total restatements ...

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Securities Litigation: Federal & State Court Suits Down in 2020

According to Cornerstone Research’s 2020 Midyear Assessment, the number of securities lawsuits filed in federal and state courts dropped by 18% compared to the second ...

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Updating: What Do You Do With Your First Quarter COVID-19 Risk Factor?

In response to the onset of the COVID-19 pandemic, many companies opted to include a risk factor addressing the pandemic in their 10-Qs for the first quarter of 2020. ...

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Audit Committees: Meetings & Processes in a Pandemic

The most recent edition of Deloitte’s “Audit Committee Brief” discusses priorities for the current quarter and future periods. I thought the discussion of how ...

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Tales From the Swamp: Stimulus Money Fuels Insider Trading?

According to a recent study, there’s a pretty good chance that all of the stimulus money currently sloshing around may stimulate some good old-fashioned insider ...

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COVID-19: Does “Force Majeure” Apply?

Although the social media sphere is quick to characterize this year’s parade of horribles as an “Act of God,” that characterization may be more difficult for ...

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Proxy Advisors: SEC Amends Proxy Rules to Address Voting Advice!

At an open meeting yesterday, the SEC adopted amendments to its proxy solicitation rules, which are intended to give companies a more meaningful opportunity to review ...

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COVID-19: Impact on Disclosure Controls

After Corp Fin supplemented its COVID-19 disclosure guidance last month to suggest what information companies should be considering for pandemic-related disclosure, we ...

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ESG: GAO Sums Up Disclosure Dilemmas

The Government Accountability Office has issued a 62-page report on ESG disclosures — why investors want them, what public companies are doing, and the advantages and ...

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Virtual Board Meetings: Here to Stay?

Virtual board meetings offer basic benefits, like no travel and potentially better attendance, and a recent Harvard Business Review article says some fast-adapting ...

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Providing Clarity: SASB & GRI Announce Collaboration

Last year, Liz wrote about calls for standardized sustainability disclosure and the “alphabet soup” of reporting frameworks, which haven’t diminished with time. ...

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Shareholder Derivative Suits Launched Over Diversity Concerns

Board diversity has been an area of focus for investors for a while now, but with recent social unrest, board diversity is being scrutinized even more. With attention on ...

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SEC Proposes to Increase Form 13F Reporting Thresholds

On Friday, the SEC proposed amendments to Form 13F for institutional investment managers. If adopted, the primary proposed change would raise the Form 13F reporting ...

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Cybersecurity: The Ongoing Challenge of a Remote Workforce

Like many businesses, my law firm’s offices have been operating on a restricted schedule for the past several months, and even though we’re in the process of ...

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ICFR: How Will COVID-19 Impact Material Weaknesses?

A FEI report on ICFR addresses the potential implications of the COVID-19 crisis on the assessment of whether material weaknesses in internal controls exist. Not ...

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Reg Flex Agenda: Universal Proxy Rules Coming Soon?

Just a couple of years ago, media reports suggested that the SEC’s universal proxy rule proposal was an “ex-parrot.” But a Davis Polk blog says the latest edition ...

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Insurance: Michigan Court Nixes COVID-19 Coverage Claim

One of the top-of-mind issues for many companies in recent months has been whether their business interruption insurance policies will pick up part of the tab for ...

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Beyond EBITDAC: Quantifying COVID-19’s Impact in Public Company Disclosures

Earlier this year, I wrote about the practice of presenting “EBITDAC”- type disclosures that adjust for COVID-19’s impact. A more recent blog from Liz suggests ...

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Q2 Reporting: Investors Focus on Liquidity & Human Capital Disclosure

On June 30th, the SEC held a roundtable on 2nd quarter reporting and COVID-19 disclosure. The panelists included a bunch of big shots from private equity firms and asset ...

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NYSE “Direct Listings” Proposal: Now with Price Range & Round Lot Requirements

Late last year, we were tracking the saga of the NYSE’s “direct listing” proposal for primary offerings. A lot has happened since then, and you’d be forgiven if ...

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Tangible “Corporate Purpose”: Investor Views

Amidst the pandemic, the “corporate purpose” debate continues. A few say it’s even intensified, given some companies’ need to prioritize long-term viability and ...

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“All-Purpose” Securities Law Disclosure: Are We Reaching the Breaking Point?

As demands mount for “stakeholder”-oriented disclosure — and as the SEC faces understandable backlash about whether that type of disclosure is useful to investors ...

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Reg S-T: Corp Fin Extends Temporary Relief for Signatures

In March, John wrote about Corp Fin’s temporary relief for manual signature retention requirements under Rule 302(b) of Regulation S-T. Last week, the Staff updated ...

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COVID-19: Investors Want Mandated Disclosures

As reported in a recent Davis Polk blog, Americans for Financial Reform sent a letter signed by over 90 investors, state treasurers, public interest groups and others ...

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SASB Disclosures: Contributing to Societal Change?

Rhonda Brauer shares her observations about our current crises and how SASB’s “financial materiality” disclosure framework could assist in bringing about societal ...

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Corp Fin Supplements COVID-19 Disclosure Guidance

Yesterday, Corp Fin issued CF Disclosure Guidance: Topic 9A, relating to operations, liquidity and capital resources disclosures companies should consider with respect ...

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SCOTUS Reaffirms SEC’s Disgorgement Authority — With Limits

Yesterday, in an 8-1 decision, the US Supreme Court reaffirmed the SEC’s authority to seek disgorgement as a remedy in enforcement actions — but placed limits on the ...

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SEC Chair Jay Clayton: Leaving Washington for New York?

The DOJ caused a stir late Friday with its announcement that the President intends to nominate SEC Chairman Jay Clayton to replace Geoffrey Berman as the United States ...

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Comp Consultants: Maybe the Problem Isn’t Other Services…

Several years ago, the SEC approved exchange rules requiring the comp committee to review the independence of a comp consultant before retaining that consultant. The ...

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IPOs: Virtual Road Shows On the Rise

The grueling, globe-trotting — “if it’s Tuesday this must be Zurich” — roadshow process has long been a big part of the IPO experience for management teams and ...

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“Offboarding” to Achieve Optimal Board Composition

Rather than thinking about how to refresh the board when directors approach mandatory retirement ages or term limits, a recent opinion piece in Forbes suggests ...

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Cyber Breach Disclosure Trends

Last year, Liz wrote about how disclosure related to a cyber breach presents a tricky issue because disclosure requirements vary quite a bit for companies based on ...

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Benchmarking Compliance Reporting

For those taking on responsibility for reviewing a company’s compliance program, along with using the DOJ’s updated guidance, NAVEX Global recently issued its Risk ...

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Improving Board Oversight of Human Capital Management

As COVID-19 has brought increased focus to workplace safety, employee pay and other human capital issues, a recent EY white paper provides insight from directors to ...

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Perks Disclosure SEC Enforcement Action

It’s been a couple of years since we’ve seen an SEC Enforcement Action related to improper disclosure of perks, but the SEC recently settled a case. In this most ...

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Paycheck Protection Flexibility Act: Congress Cuts PPP Borrowers Some Slack

Late Wednesday, the Senate unanimously passed the House version of the Paycheck Protection Flexibility Act, which President Trump is expected to sign into law. Among ...

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PPP Loan Certifications: D&O Issues for the Battles to Come

Most people expect the SBA & DOJ to engage in a robust enforcement effort when it comes to the PPP program. A recent D&O Diary guest blog by Pillsbury’s Peter ...

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Down on Main Street: Fed Provides More Info on Main Street Lending Program

Last week, the Federal Reserve issued additional guidance on its “Main Street Lending Program” for small and mid-sized businesses. A Crowell & Moring memo ...

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Going Concern: Sifting Through COVID-19 Uncertainties

Companies and their auditors must periodically assess whether there is substantial doubt about the company’s ability to continue as a “going concern.” In normal ...

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SPACs: Will More IPOs Mean More Lawsuits?

Last month, I blogged about the recent prominence of SPAC IPOs. While many traditional IPO candidates have put their deals on hold during the COVID-19 crisis, SPACs have ...

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Importance of Updating Risk Management Programs

A recent Nixon Peabody memo reminds management teams to ensure risk management policies and procedures are updated, implemented and that any crises are resolved — ...

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Proxy Advisor Regulation — Is a Speed Bump the Answer?

Proxy advisors and others are voicing displeasure at the notion of a “speed bump” when it comes to proxy advisor reports. Even though the comment period for the ...

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Independent Chair Proposals in a COVID-19 World

Here’s a note from Rhonda Brauer: In the pre-COVID-19 world, I was monitoring independent chair proposals for the 2020 proxy season. I was particularly interested ...

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SEC Investor Advisory Committee: Time to Take Up ESG Disclosure

Late last week, the SEC’s Investor Advisory Committee approved a recommendation that encourages the SEC to begin addressing ESG disclosure. The recommendation might ...

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Non-GAAP: Are Companies Adjusting Away COVID-19?

The Financial Times recently reported that some companies have presented non-GAAP metrics — such as “EBITDAC” — that effectively adjust away the effects of the ...

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PPP Loans: Are Public Company Borrowers Really the Bad Guys?

Recently, I wrote about the SEC’s apparent initiation of an enforcement sweep targeting public companies that borrowed money under the Paycheck Protection Program. ...

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PPP Loans: SEC Enforcement Sweep of Public Company Borrowers?

Public company borrowers under the Paycheck Protection Program have received plenty of criticism. Now, according to a Bryan Cave blog, their hot seat just got even ...

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The Fire Next Time? CFOs Say Contingency Plans Lacking for COVID-19 Second Wave

As the U.S. slowly reopens for business, we’re already hearing warnings that a second wave of the pandemic is likely heading our way in the fall. Since that’s the ...

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Contested Virtual Shareholder Meeting – It’s a First!

We’ve discussed quite a bit about virtual annual meetings, and here’s another development – a recent Wachtell Lipton memo discusses the first contested virtual ...

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PPP Good-Faith Need Certification: SBA Issues Another FAQ

Last week, when John wrote about the deadline for borrowers to return Paycheck Protection Program funds without penalty, he also noted that the SBA said it would provide ...

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COVID-19 & ESG: Social Issues in the Spotlight

It looks like another effect of COVID-19 might be a shift of investors’ ESG focus by placing more emphasis on social issues. As noted in a SGP 2020 proxy season blog, ...

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Companies Targeted for Return of PPP Funds

John’s discussed a few times about issues with the Paycheck Protection Program. For companies that might be questioning whether to return PPP funds, a couple of recent ...

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Proposed Shareholder Resubmission Thresholds: Disproportionate Effect?

That’s what a recent report issued by the Council of Institutional Investors says. A lot has been said about the SEC’s proposed rules relating to the shareholder ...

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Positive Effects from Publicizing Crisis Response

Even though the market went up last Friday, with unemployment and food lines growing by the day and COVID-19 persisting, it’s clear we’re in a crisis. If anyone’s ...

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“No Respect at All”: Are Dual-Class Companies Undervalued?

Dual-class companies are the Rodney Dangerfield of corporate governance – “No respect… I’m tellin’ ya, I don’t get no respect at all!” It’s hard to find ...

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Nasdaq Temporarily Eases Approval Requirements for COVID-19 Share Issuances

Earlier this week, the SEC approved a temporary Nasdaq rule that would provide listed companies with a temporary exception from certain shareholder approval requirements ...

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Virtual Annual Meetings: CII Weighs In with Investor Concerns

A number of companies have transitioned to virtual annual meetings as a result of the COVID-19 crisis, and according to the CII’s recent letter to the SEC’s Investor ...

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Staff Issues FAQs on COVID-19 Relief

Yesterday, the Staff issued four FAQs addressing issues arising under the SEC’s exemptive order extending filing deadlines for companies impacted by the COVID-19 ...

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PPP Loans: Tax Deduction? If They’re Forgiven, Forget It

One of the things that makes the Payroll Protection Program so attractive is that if a borrower spends its loan proceeds properly (on items such as payroll, rent and ...

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PCAOB Wants Comments on CAM Requirements

The PCAOB wants comments on experiences so far with the new CAM disclosure requirement. Comments are encouraged from all interested stakeholders and should be submitted ...

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Mining Company Property Disclosure Rules: Corp Fin Issues Three New C&DIs

Yesterday, Corp Fin issued three new C&DIs arising out of the new mining company property disclosure rules — Broc wrote about the rules when they were adopted in ...

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Beyond Force Majeure: Tips for Entering New Tech Agreements During COVID-19

Many companies have been dealing with what to do about existing contracts during COVID-19, while many are also continuing to enter into new agreements. A new contract ...

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BlackRock’s Catching Flack from All Sides

When you’re the largest asset manager, any statements garner a lot of attention. Take for example, Larry Fink’s January letter to CEOs. A lot of media outlets ...

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SEC Goes Remote & Virtual Like the Rest of Us

If you’re wondering how the SEC is getting all of its work done these days, they’re working remote like a lot of people and seem to be adapting. A while ago, the SEC ...

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PPP Loans: Beware False Claims Act Whistleblowers

Companies that are thinking about repaying their loans ought to make their decisions prior to May 7, because as a Bryan Cave blog points out, FAQ #31 provides a safe ...

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PPP Loans: You Got Your Money – Should You Give It Back?

Well, you can’t say we didn’t warn you. A number of Paycheck Protection Program loan recipients are receiving heavy duty blowback from the media and politicians ...

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Listing Standards: NYSE Joins Nasdaq in Providing Relief From Price-Based Standards

Earlier this week, I wrote about Nasdaq’s rule change providing extended compliance periods for companies that fail to meet its minimum bid price and global market cap ...

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Virtual Shareholder Meetings: Survey of Q&A Trends

With so many companies moving to virtual meetings, one of the issues that has become front and center is how shareholder Q&A sessions should be handled. A Bass Berry ...

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COVID-19 Crisis: Companies Adopt Emergency Bylaws to Ensure Board Operations

With all of the disruptions resulting from the COVID-19 pandemic, many companies are looking at board and management continuity issues, and some companies have opted to ...

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SEC & PCAOB Officials Issue Joint Statement on “Emerging Market” Risks

Yesterday, SEC Chair Jay Clayton and a group of senior SEC & PCAOB officials issued a joint statement warning about the risks posed by “emerging market” ...

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COVID-19 Crisis: What About ICFR?

The COVID-19 crisis has created a number of challenges for public companies, and one of the potentially most significant is maintaining appropriate internal control over ...

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Listing Standards: Nasdaq Provides Temporary Relief from Price-Based Standards

On Friday, the SEC approved an immediately effective Nasdaq rule change that would allow listed companies more time to return to compliance with price-based continued ...

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Rulemaking Petition Seeks to Allow Electronic Signatures Under Reg S-T

In what could be a big step forward for the SEC, a rulemaking petition from Wilson Sonsini, Fenwick & West and Cooley asks the SEC to amend rules under Reg S-T that ...

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COVID-19 Oversight: Does the Board need a Special Committee?

No doubt most boards are dealing with unprecedented challenges related to the COVID-19 pandemic. Some boards might currently have a risk committee positioned to provide ...

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Initial Investor Responses to the COVID-19 Pandemic

Rhonda Brauer has provided a couple of guest blogs; here’s her most recent post. We’re grateful for her work this time that takes a look at where investors are ...

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COVID-19 & Earnings Calls: Logistical Considerations

Social distancing and stay-at-home orders resulting from COVID-19 will make this quarter’s earnings calls different for many companies. For most it will be difficult, ...

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Corp Fin Provides Temporary Relief for Form 144 Paper Filings

Yes, Forms 144 are still required, but you can email them for a while. Corp Fin recently issued an announcement providing temporary relief for Form 144 paper filings in ...

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COVID-19 Crisis Disclosure: What About Earnings Guidance?

One of the many issues that companies are grappling with as a result of the COVID-19 crisis is what to do about earnings guidance. A Bass Berry blog addresses that ...

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SEC Chair & Corp Fin Director Issue Joint Statement on COVID-19 Disclosure

Yesterday, SEC Chair Jay Clayton and Corp Fin Director Bill Hinman issued a joint statement urging companies “to provide as much information as is practicable ...

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Paycheck Protection Program: Free Money? Don’t Bank on It

If you’re in a law firm, chances are pretty good that you’ve spent a fair amount of time during the past week getting clients up to speed on the requirements for ...

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COVID-19: New C&DI Address Application of Exemptive Order to Part III of 10-K

Yesterday, Corp Fin issued a new C&DI addressing the application of the SEC’s conditional exemptive order extending by up to 45 days after the due date for SEC ...

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Financial Reporting: SEC Chief Accountant Addresses COVID-19 Issues

SEC Chief Accountant Sagar Teotia issued a recent statement stressing the importance of high-quality financial reporting during the COVID-19 crisis. Many companies are ...

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SEC Chair Encourages Continued Disclosures Amid Pandemic

SEC Chairman Jay Clayton recently issued a public statement emphasizing that the SEC is “focused on ensuring that issuers and other registrants continue to provide ...

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Securities Offerings Amid Closed Trading Window: Disclosure Considerations

With ongoing economic uncertainty, many companies are thinking about and taking steps to address liquidity and capital resources. John wrote last week about Corp Fin’s ...

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Corp Fin Issues Two New Delayed Filing CDIs

Yesterday, Corp Fin issued two new CDIs addressing the interplay of Form 12b-25 and Corp Fin’s modified COVID-19 exemptive order that was issued last week to provide ...

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Making Use of ESG Ratings

As is often said – beauty is in the eye of the beholder – some might say the same about ESG ratings, then again maybe not. It wasn’t too long ago that Liz wrote ...

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CARES Act – Nearly Everything but the Kitchen Sink

It came together quickly; Some might say not fast enough, but last Friday, the Coronavirus Aid, Relief and Economic Security (CARES) Act became law. It is believed to be ...

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Buybacks: Are Airlines Supposed to be Treated Differently?

Nobody is likely to shed any crocodile tears over companies receiving yet another federal bailout being prohibited from this type of financial engineering, but as I read ...

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COVID-19 Disclosures: Guidance From Corp Fin

Yesterday, Corp Fin issued CF Disclosure Guidance Topic No. 9, which addresses disclosure and other securities law obligations relating to the COVID-19 crisis. The ...

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Executive Health: COVID-19 Illness Disclosures

I recently wrote about potential disclosure issues surrounding a corporate executive’s COVID-19 diagnosis. Regrettably, this is no longer a hypothetical issue. For ...

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COVID-19 Cash Crunch: Rethinking Dividends

The suddenness of the COVID-19 crisis has left many companies rethinking their liquidity needs. Those that declared a cash dividend before the crisis hit but haven’t ...

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COVID-19: Should You Update Earnings Guidance?

A lot of internal discussions are underway about whether to update earnings guidance about the effect COVID-19 might have on a company’s business or financial outlook. ...

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Annual Meetings: Attendance Considerations

This year, another aspect to annual shareholder meetings to think about is whether your directors, officers and other employees should attend the annual meeting — ...

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Board-Level Oversight of Sustainability Disclosures

Board-level oversight of sustainability initiatives and disclosure is up for grabs at many companies. A PwC memo discusses reasons audit committees might be best ...

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Virtual Shareholder Meetings: CII & Proxy Advisor Positions

Many have been wrangling with all the considerations of holding virtual-only or hybrid shareholder meetings during this time of “social distancing.” A Perkins Coie ...

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SEC Amends “Accelerated Filer” & “Large Accelerated Filer” Definitions

Yesterday, the SEC adopted amendments to the definitions of “Accelerated Filer” and “Large Accelerated Filer.” The most notable result of this action is that ...

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Disclosure: What If Your CEO Is Diagnosed With The Coronavirus?

The COVID-19 outbreak creates plenty of disclosure issues about its potential impact on a company’s business and financial condition, but there’s another one lurking ...

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Proxy Contests: Will COVID-19 Put Them on Ice?

A recent Sidley memo says that one of the consequences of the coronavirus outbreak may be a decline in proxy contests during the current season. As this excerpt points ...

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Conflict Minerals: Time for a Fresh Look at Disclosure & Compliance Programs

Remember when everybody thought the Conflict Minerals disclosure requirement was on the way out? Yeah, good times. . . Anyway, a Ropes & Gray memo says that changes ...

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SEC Asks DC Employees to Work From Home

In what may be a sign of things to come for many of us, The Washington Post reports that last night, the SEC asked employees in its DC headquarters to work from home in ...

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Earnings Calls: What are Companies Saying About the Coronavirus?

I guess we can add earnings calls to the ever-growing list of things that the coronavirus outbreak has thrown a giant monkey wrench into. A recent article from “CFO ...

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Future of the PCAOB

As reported in various news outlets, President Trump’s 2021 budget includes a proposal that would consolidate the PCAOB into the SEC. Consider me a skeptic as to the ...

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SEC Proposes Amendments to Simplify & Harmonize Private Offerings

Yesterday, the SEC issued a 341-page proposing release intended to “simplify, harmonize and improve certain aspects of the exempt offering framework.” The SEC’s ...

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Annual Meetings: Planning for COVID-19 Developments

A memo from Davis Polk walks through some of the things you might want to think about if you’re worried about the COVID-19 coronavirus and how it might affect where or ...

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SEC Amends Rules for Financial Disclosures of Registered Debt Offerings

Yesterday, the SEC voted to adopt amendments that significantly change the financial disclosure requirements for guaranteed debt offerings under Regulation S-X Rule 3-10 ...

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Internal Audit’s View of Corporate Governance

According to a recent report, Chief Audit Executives (CAEs) don’t think that companies are doing a very good job evaluating corporate governance. The report was issued ...

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D-Lister Dinged for Drumming Digital Deal!

Yesterday, the SEC announced that it had instituted a settled enforcement action against actor, musician, environmentalist, martial arts master & Russian special ...

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Warren Buffett: “Hey GAAP, Get Off My Lawn!”

Warren Buffett’s annual letter to Berkshire Hathaway shareholders came out last Saturday. It attracted the usual avalanche of media attention, but I recommend that you ...

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DFS: New York’s New Regulatory King Kong?

Armed with the formidable Martin Act, the NY Attorney General’s office has long been one the most powerful state regulators in the country, but a WilmerHale memo says ...

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Coronavirus: Implications for Contracts

It really is difficult to get your arms around the sweeping legal & business implications of the coronavirus epidemic. A Cleary Gottlieb memo picks up on one of the ...

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MD&A Guidance: What About ESG Metrics?

Well, it didn’t take long for the Division of Enforcement to focus everybody’s attention on the SEC’s recent guidance on the use of key performance indicators ...

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What to Do About Astroturfing the Comment Letter Process

It’s hard to know for sure whether astroturfing is part of the SEC comment letter process. Last fall, John wrote about the flurry of comment letters received at the ...

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SEC Public Statement on Coronavirus

Yesterday, the SEC issued a public statement on the effects of the coronavirus on financial reporting.  In late January, John wrote about Chairman’s Clayton’s ...

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SEC Brings KPI Enforcement Proceeding

It looks like the SEC didn’t waste much time in finding its big company poster child for key performance indicators (KPI). Yesterday, the SEC issued a press release ...

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SEC Comment Letters: Tips to Ease Your Response Process

Responding to SEC comment letters can be tricky, so it’s always nice to read tips from Corp Fin on how to make the response process more efficient. A recent Deloitte ...

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Cyber Response Plan Testing

When it comes to “cyber response plans,” the planning stage is a lot more useful if it’s actually been tested. A blog from The D&O Diary discussing the ...

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Risk Factors: Here Come the 10-K Coronavirus Disclosures. . .

Last month, I wrote about the first 10-K filing to include a coronavirus risk factor. As concerns about the virus’s economic impact have continued to grow, a total of ...

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Insider Trading: Should Your Policy Cover More Than Legal Risks?

A recent paper from Stanford’s Rock Center notes that while most insider trading policies are designed to prevent violations of law, companies need to ask whether ...

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Audit & Non-Audit Fees: The Song Remains the Same?

Audit Analytics recently took a look at the audit fees paid by S&P 500 companies – and to say that they vary widely is a huge understatement. The average audit ...

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Proxy Access: Adopted Widely, Used Only Once

Sidley recently issued a 5-year review of proxy access developments.  In addition to tracking the adoption of proxy access bylaws, the review also addresses a variety ...

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IPOs: A Fix for Section 11 Liability?

With D&O insurance premiums on the rise & more Section 11 suits being filed in plaintiff-friendly state courts, IPO companies and their directors & officers ...

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Skipped Class the Day Insider Trading was Covered?

Insider trading stories really do make me shake my head in disbelief and I did that when reading a recent story. In this case, the SEC caught up with a recent college ...

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