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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Fresh Regulatory Scrutiny in Connection with IPOs

This week, advisories were issued by NYSE Regulation, Nasdaq and FINRA in response to recent instances of unusual price movements following certain IPOs on U.S. ...

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Auditor Independence: The Vital Role of Audit Committees

It’s no secret that certain folks at the SEC have been particularly focused on auditor independence as of late. Acting Chief Accountant Paul Munter has issued a couple ...

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Advance Notice Bylaws: Can They Go Too Far?

In response to the SEC’s newly effective “universal proxy card” rules, some companies have been tightening up their bylaws (as explained in a podcast that John ...

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Acknowledging Veterans’ Unique Perspectives: Disclosures on the Rise

Thank you to all of the members of our military — and their family members — for your service and sacrifice for our country. While we are mindful of your ...

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SEC Announces Fiscal 2022 Enforcement Results

Yesterday, the SEC announced the results from the agency’s fiscal year 2022 enforcement activity, and it should come as no surprise that overall enforcement activity ...

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Winter is Coming: Crypto Fallout

It has been a rough year for digital assets, and the last thing that the crypto market needed was a spectacular scandal of massive proportions. Well, perhaps not ...

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Rule 10b5-1 Plans: SEC & DOJ Hunting for Suspicious Trades

Earlier this fall, John blogged that the Division of Enforcement had gotten something it has coveted for quite some time — an insider trading case involving senior ...

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Rule 15c2-11 Relief: Time’s Almost Up for Private Rule 144A Issuers

Rule 15c2-11 governs when dealers are permitted to publish quotations for securities. In September 2020, the SEC amended the rule to prohibit them from publishing quotes ...

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Stockholders v. Shareholders: What’s in a Name?

Now that the Twitter case is over, we can all turn our attention to the things in Delaware corporate law that really matter to us. Francis Pileggi recently provided a ...

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SEC Enforcement: Federal Judge Slams SEC Gag Orders

Last week, in a blistering opinion, U.S. District Court Judge Ronnie Abrams took the SEC to task for its “neither admit nor deny” settlement policy. This excerpt ...

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Proxy Voting: SEC Adopts Rules to Enhance Transparency of Fund Votes

Yesterday, the SEC announced the adoption of amendments to Form N-PX that are intended to enhance the transparency of proxy voting by mutual funds, ETFs and other ...

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Crypto, DAOs & DeFi: Why They’re Relevant to ‘The Rest of Us’

I had been collecting various cryptocurrency-related updates for this blog, but then Bloomberg’s Matt Levine wrote a 40,000-word essay for Businessweek that says it ...

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SEC Adopts the Dodd-Frank Era Clawback Rules

Yesterday, the SEC adopted the clawback rules contemplated by Section 10D of the Exchange Act, which was added over a dozen years ago by the Dodd-Frank Act. Not ...

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The Compliance Crunch: Is Your Budget Ready?

I have been out speaking about all of the new SEC rules that have been adopted, are being adopted and that remain to be considered, and one thing is clear: we will all ...

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SEC Rulemaking: Chair Gensler’s Agenda Keeping Staff Busy

Companies and their advisors aren’t the only ones struggling to keep pace with SEC Chair Gary Gensler’s “front-loaded” rulemaking agenda — the Staff is also ...

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Antitrust: DOJ Gets 7 ‘Interlocking Directors’ to Resign

Yesterday, the U.S. Department of Justice announced that seven directors have resigned from corporate board positions in response to concerns by the Antitrust Division ...

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Corporate Culture: Prepare for Your Auditor’s Scrutiny

SEC Acting Chief Accountant Paul Munter published another statement last week to focus on the gatekeeping responsibilities of auditors — this time, in relation to ...

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Earnings Guidance as a Reg FD Tool

As we make our way through a complicated earnings season, a recent Wall Street Journal article says that some companies may be looking at ways to expand the range for ...

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Political Spending: Policies in the Spotlight (Including for Smaller Companies)

Just in time for another round of polarizing midterm elections, the Center for Political Accountability and the Zicklin Center for Governance and Business Ethics at the ...

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Meta Lawsuit: Fiduciary Duties to Diversified Portfolios?

Investor activist Jim McRitchie recently filed a breach of fiduciary lawsuit against Meta in which he contends that in a system that emphasizes stockholder primacy, the ...

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Corporate Governance: The Illusion of Best Practices

In a recent Directors & Boards article, GW Law School Professor Emeritus Lawrence Cunningham challenged the idea that there is a single set of corporate governance ...

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‘Veni, Vidi, Vinco Ventures!’ Man Walks into the Wrong Courtroom, Walks Out as Public Company CEO

Remember Vinco Ventures, the company that was the subject of a hostile takeover attempt by means of allegedly swiped EDGAR codes? Well, believe it or not, things have ...

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Tech Glitch Prompts SEC to Reopen Comments on 11 Rulemaking Proposals

On Friday, the SEC announced that a “technological error” dating back to as early as June 2021 has prompted it to reopen the comment period on 11 rulemaking ...

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Something I Still Can’t Get Over: Testing the Waters

There is one phrase that frequently comes to mind when considering the regulatory environment that we have been living in for a while now: “life comes at you fast.” ...

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PCAOB Staff Solicits Comment on Interim Attestation Standards

Last month, the Public Company Accounting Oversight Board issued a staff request for information and comment on matters related to the application and use of the ...

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FinCEN Adopts Final Rule on Beneficial Ownership Reporting

Last Thursday, the Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) issued a final rule implementing the beneficial ownership information ...

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Over-Issues: A Cautionary Tale

Yesterday, the SEC announced a $361 million settlement with Barclays for an unprecedented over-issue that is every security lawyer’s nightmare: The SEC’s order ...

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Enforcement: SEC Finds a Couple of 10b5-1 Plan Poster Children

Yesterday, the SEC announced settled enforcement proceedings involving alleged insider trading by Cheetah Mobile’s CEO and its former president. Insider trading cases ...

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White Collar: DOJ Revises Corporate Criminal Enforcement Policies

In a recent speech, Deputy Attorney General Lisa Monaco announced changes to the Department of Justice’s policies on corporate criminal enforcement. According to a ...

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Climate Disclosure: Litigation Risks & Challenges

The potential risks of litigation that might arise out of the SEC’s climate change proposals are among the greatest concerns that public companies and their advisors ...

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Gensler Testifies Before Senate Banking Committee

Yesterday, SEC Chair Gary Gensler testified before the United States Senate Committee on Banking, Housing, and Urban Affairs. In his prepared remarks, Gensler discussed ...

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Getting Your Compliance Right

I have been having quite a few conversations lately about compliance. The SEC and DOJ appear to be laser-focused on corporate compliance at the moment, and even the ...

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Civil Rights Audits: Coming to a Company Near You?

Over on the Proxy Season Blog, Liz recently wrote about the voting results from the 2022 proxy season on shareholder proposals requesting independent audits of racial ...

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JOBS Act Inflation Adjustments Finally Arrive!

As John noted last month, we have been receiving questions from members in our Q&A Forum (see Topic No. 11109) and via email about when the SEC would adopt the ...

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Non-Audit Services: EY Partners to Vote on Breakup

Yesterday, EY announced that it is moving forward with partner votes to separate the firm into two distinct organizations, which it has been considering for several ...

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Board Refreshment: Individual Director Evals Becoming More Common

Here we go again, this time from a new report on board refreshment policies from The Conference Board, ESGAUGE and other collaborators: As US corporations seek to ...

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SPACs: Still Looking Bleak

Reuters reported yesterday that Digital World Acquisition Corp., the SPAC that’s attempting to merge with Donald Trump’s social media venture, has so far failed to ...

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Corp Fin Comments: Staff Assessing ‘Board Leadership’ Disclosures

If you haven’t already received a comment letter, be aware that Corp Fin is taking a close look at disclosure of board leadership structures and risk oversight ...

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BlackRock Doesn’t Want to Police GHG Disclosures

The comments on the SEC’s pair of proposals for ESG investment funds are showing that these rules could increase pressure for portfolio companies, which is something ...

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Buybacks: The Excise Tax & ASR Programs

As the law firm memos on the Inflation Reduction Act’s 1% excise tax on stock repurchases continue to roll in, we’re learning that there are a lot of unknowns about ...

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Cybersecurity: Assessing Cyberattack Materiality

Earlier this year, HanesBrands disclosed that it had been the victim of a ransomware attack. In its second-quarter earnings release, the company disclosed that the ...

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Officer Exculpation: Sample Proxy Disclosure & Amendment Language

If you’re thinking about an officer exculpation amendment, then you’re probably also thinking about what your proxy disclosure and the text of that amendment might ...

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Whistleblowers: SEC Amends Whistleblower Rules

On Friday, the SEC announced that it had adopted two amendments to the rules governing its whistleblower program. This excerpt from the SEC’s press release summarizes ...

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Late Summer Surprise: SEC Adopts Pay Versus Performance Disclosure Requirement

Typically, the last two weeks of August are a pretty quiet time on the regulatory front. Not so for the SEC in 2022! At long last, the SEC finally got around to adopting ...

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Looking Forward: The SEC’s Strategic Plan

Yesterday, the SEC announced the release of its draft strategic plan for fiscal years 2022-26. The agency requests public comment on the plan during a period ending 30 ...

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Exculpation for Officers in Delaware: What’s Next?

A few weeks ago, I blogged about a number of statutory changes that went into effect in Delaware at the beginning of this month, including changes that will allow ...

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Corporate Governance Education: The Key to Orderly Markets?

I blogged yesterday about my dismay in reading that today’s retail investors find equity investing to be hopelessly complicated. Law professors Christina Sautter and ...

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ICOs: SEC Charges Crypto Company with Section 5 Violations

On the heels of an insider trading action and reported investigation into Coinbase, the SEC is sending another strong signal that it intends to regulate digital assets ...

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Shareholder Proposals: SEC Investigating Whether Funds Are Greenwashing Proxy Votes

The SEC’s Enforcement Division is taking a close look at ESG funds’ share lending and proxy voting practices and related disclosures, according to a recent Bloomberg ...

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Earnings Calls: Prepare for ESG Q&A

If you aren’t already getting ESG-related questions during your earnings call Q&As, you probably will be soon. According to a recent Nasdaq MarketInsite article, ...

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Multiple Audit Firms: New PCAOB Requirements Increase Lead Auditor’s Responsibility

On Friday, the SEC approved updated PCAOB standards that apply to audits involving multiple audit firms. The standards require lead auditors to plan, supervise and ...

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Meme Stock Madness: Using EDGAR Codes as a Hostile Takeover Strategy?

I see from recent media reports that meme stocks are back, which I guess means that people feel they didn’t lose enough money in crypto this year. Anyway, it’s ...

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Delaware Chancery Court Enjoins Annual Meeting

It’s not every day that the Delaware Chancery Court enjoins a company’s annual meeting of stockholders, but that’s what happened to UpHealth, a recently de-SPACed ...

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2nd Circuit Limits Reach of Dodd-Frank Whistleblower Incentives

A recent 2nd Circuit decision pared back the scope of the claims for which compensation may be received under Dodd-Frank’s whistleblower provisions. Here’s the intro ...

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Buybacks: Summary of the New Excise Tax on Corporate Stock Repurchases

Yesterday, the Senate passed the 755-page Inflation Reduction Act of 2022. Among its other provisions, the legislation imposes an excise tax equal to 1% of the fair ...

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Corp Fin Continues to Press for Disclosure on the War in Ukraine

In the May-June 2022 issue of The Corporate Counsel, we covered the disclosure implications of the war in Ukraine and the SEC’s guidance on the topic in the form of a ...

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Big Week in Delaware: Changes to the DGCL Go Into Effect

Effective August 1st, the Delaware General Corporation Law has been amended to reflect several significant changes. As a recent Wilson Sonsini memo notes, the changes ...

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Declassifying the Board: Is the Timing Right?

One topic that often comes up when discussing board refreshment and board diversity is the existence of classified boards. With a classified — or staggered — board, ...

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SEC Re-proposes Amendments to Proprietary Trading Rule

Last week, the SEC re-proposed rule amendments originally proposed in 2015 to narrow an exemption from the requirement to be a FINRA member that is applicable to certain ...

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Direct Listings: SEC Appears Lukewarm on NYSE’s Proposed Pricing Flexibility

Last week, the SEC posted an order instituting proceedings on a proposed NYSE rule change to modify pricing limitations for securities listed on the New York Stock ...

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WorldCom: Lessons for Lawyers, 20 Years On

In remarks yesterday to the Center for Audit Quality, SEC Chair Gary Gensler marked the 20-year anniversary of the Sarbanes-Oxley Act, as well as the Enron and WorldCom ...

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Proxy Voting: BlackRock Gave Companies a Passing Grade

Yesterday, BlackRock Investment Stewardship released a 27-page summary of the 72-page “Voting Spotlight” that it published last week. The reports detail the asset ...

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Insider Trading: SEC Brings First-Ever Crypto Case, Says 9 Tokens Are ‘Securities’

My family and I recently visited the Smithsonian’s National Museum of American History, where we joined other sweaty tourists in marveling over the prehistoric (2014) ...

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10b-5 Liability: 2nd Circuit Says ‘Scheme’ Requires ‘Something Extra’

In 2019, the Supreme Court set the stage for expansive “scheme liability” under Exchange Act Rule 10b-5(a) and (c) in Lorenzo v. SEC. Unlike primary liability under ...

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Climate Disclosure: Will West Virginia v. EPA Put the Kibosh on SEC Rules?

Dave recently blogged about some of the potential implications of the U.S. Supreme Court’s decision in West Virginia v. EPA for the SEC’s proposed climate disclosure ...

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Audit Committees: Addressing ESG Fraud Risk

Audit committees focus a lot of attention on the potential for financial fraud, but a recent Deloitte memo says they need to devote greater attention to an emerging area ...

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Reg A+ Offerings: ‘Could I Interest You in Everything All of the Time?’

I know you folks don’t come here for entertainment recommendations, but I think Bo Burnham’s 2021 Netflix special, Bo Burnham: Inside, is the most remarkable work of ...

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SEC Enforcement: 5th Circuit Says ‘Gag Order’ Did Not Void Settlement

Recently, I blogged about the Supreme Court’s decision to deny cert in a case challenging the constitutionality of the SEC’s “neither admit nor deny” settlement ...

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Board Diversity: Progress on Racial & Ethnic Diversity?

Cooley’s Cydney Posner recently blogged about whether companies are making progress in efforts to improve the racial and ethnic diversity of their boards. She cites ...

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SEC Adopts Amendments to Proxy Voting Advice Rules

At an open meeting yesterday, the SEC adopted rule amendments reversing certain changes to the proxy rules that were adopted just two years ago to address concerns with ...

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Financial Stability Board Announces Crypto Regulation Efforts

On Monday, the Financial Stability Board — a group of financial regulators, treasury officials and central bankers from the G20 nations — announced that it will be ...

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A Focus on Authority: The End of Chevron Deference?

It is not surprising that one of the areas of focus in the comment letters submitted to the SEC regarding the climate disclosure proposal is the SEC’s authority to ...

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SEC Enforcement: SEC v. Mark Cuban Redux?

Last week, the SEC announced the filing of an insider trading enforcement proceeding with allegations that sounded very familiar: The SEC’s complaint, filed in ...

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Confidence in ‘Big Business’ Hits 43-Year Low

Early last year, I blogged that business had emerged as a beacon of trust in stormy times. Eighteen months later, we’re stuck in disinformation quicksand — and ...

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Cybersecurity: FBI & MI5 Warn of Huge China-Based Threats

Businesses need to be on high alert for state-sponsored business spying originating from China, according to a warning issued yesterday by the FBI and Britain’s MI5. ...

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How to Read Your 10-K Like an Investor

There was an informative Twitter thread from an apparent “Main Street Investor” about how to read Form 10-Ks. Approaches to Form 10-K analysis can vary by type of ...

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#MeToo: Scapegoats Won’t Solve the Problem (They Might Make It Worse)

In a record-setting order last week, a FINRA arbitration panel issued a $52 million defamation award to Dan Michalow — the former co-head of global hedge fund D. E. ...

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SEC Enforcement: EY Sanctioned for Role in CPA Exam Cheating Scandal

There’s a point at which I should no longer be shocked by scandals involving the Big 4. I guess I’m not there yet, because I was really taken aback by the ...

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Rule 10b5-1: WSJ Says Insiders Gain Outsized Profit for Sales Soon After Plan Adoption

Yesterday, the Wall Street Journal released an investigative report reviewing insider transactions under Rule 10b5-1 plans. This excerpt says that one the Journal’s ...

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Clawbacks: SEC Ponders Expanding Proposed Rule to Cover ‘Little R’ Restatements

In its October 2021 release reopening the comment period for its proposed clawback listing standard rules, the SEC floated the idea of including “little r” ...

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Rule 144 Amendments: Will Form 144 Become the General Counsel’s Problem?

Preparing and filing the Form 144 for insider transactions has traditionally been a job that’s fallen to the brokerage firm involved in the trade. But with the recent ...

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SEC Enforcement: ‘Accountants-at-Law’?

Earlier this month, the SEC brought enforcement proceedings against Synchronoss Technologies and certain of its senior officers arising out of alleged accounting ...

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Reg Flex Agenda Hints at Timing of SEC Action on Rule Proposals

Many of our members have asked about when the SEC might act on the many pending rule proposals it has offered up in the past several months. Yesterday, the SEC announced ...

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Financial Reporting: Out-of-Period Adjustments Hit New Low

When an error in a company’s financial statements is clearly immaterial to both the current and prior period, it may be addressed through an out-of-period adjustment, ...

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SEC’s Climate Disclosure Proposals: Expand Attestation to Scope 3 Emissions Data?

While the SEC’s Scope 3 emissions disclosure proposal has its detractors, there are also some who want to see the proposed Scope 3 disclosure requirement enhanced. ...

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SEC Enforcement: SCOTUS Denies Cert in Case Challenging SEC ‘Gag Orders’

In April, I blogged about a cert petition seeking SCOTUS review of the SEC’s use of “gag orders” in connection with the settlement of enforcement proceedings. ...

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SEC Request for Comment: Should Index Providers Be Regulated as Investment Advisers?

Yesterday, the SEC announced that it is seeking public comment on the activities of certain “information providers” — such as index providers, model portfolio ...

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Human Capital: Practical Ways for Boards to Understand ‘Worker Voice’

America’s labor shortage is getting lots of attention. A recent analysis from the U.S. Chamber points out some industry differences, while Forbes blames retiring ...

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‘Pass-Through’ Voting: BlackRock Has Big Ambitions

Last fall, BlackRock unveiled a new Voting Choice program to give certain institutional investors the option to vote the shares that they hold through BlackRock index ...

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Say-on-Climate: Voting Results Don’t Tell the Whole Story

Last week, a “say-on-climate” vote passed with 96% approval at Caterpillar (hat tip to Maynard’s Bob Dow for alerting us). Management recommended in favor of the ...

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SEC Chair Gensler on Market Structure

SEC Chair Gary Gensler generated a lot of headlines with a speech that he gave at the Piper Sandler Global Exchange Conference on Wednesday. Gensler outlined the SEC’s ...

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SEC Acting Chief Accountant Issues Statement on Auditor Independence

Paul Munter, the SEC’s acting chief accountant, issued a statement recently that focused on auditor independence. In the statement, Munter explains the auditor ...

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Glossy Annual Reports to Appear on EDGAR!

The same adopting release that brings us mandated electronic filing of Form 144 also will require the electronic filing of the “glossy” annual report required under ...

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SEC to Require Electronic Filing of Form 144

One of the last vestiges of the paper filing world is (mostly) disappearing. On Friday, the SEC adopted several amendments to the rules governing electronic filing and ...

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Outside Directorships for Non-CEOs: Best Practices

The board composition report from Heidrick & Struggles that I recently blogged about noted that companies are looking to add directors whose backgrounds combine a ...

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SEC’s Cybersecurity Proposal: Issues for Boards

The SEC hasn’t acted on its recent cybersecurity rulemaking proposal, but it seems apparent that any rules the agency adopts will ratchet up the demands on companies ...

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Risky Business? SEC Launches Game Show-Themed PSAs

The SEC’s Office of Investor Education and Advocacy announced yesterday that it was launching a series of game show-themed PSAs to help investors make informed ...

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Restatements Soared in 2021 — And It’s All On SPACs!

Last year, Audit Analytics reported that 2020 saw the lowest percentage of financial restatement disclosures (Big “R” and Little “r”) in the 20 years that Audit ...

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Non-Audit Services: EY Considers a Breakup

In what could be a very bold move — with possible repercussions for other audit giants — EY is reportedly considering a split of its audit and advisory businesses. ...

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Human Capital: Lawmakers Push SEC to Require Expansive Standardized Data

U.S. Rep. Maxine Waters, D-California, who chairs the House Financial Services Committee, and U.S. Sen. Sherrod Brown, D-Ohio, who chairs the Senate Banking, Housing ...

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Climate Change Comments: The CII’s 38-Page Letter

Earlier this month, the SEC extended the deadline for its controversial climate change disclosure proposal. Thousands of comments have been received so far. While most ...

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ESG Fraud Hits Interviews in Banking, the NFL

Yesterday, I recorded a podcast with Chris McClure, the National Head of ESG Services at Crowe, about fraud in ESG. Only after that did I see the New York Times article ...

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One More Anniversary: The Sarbanes-Oxley Act!

When I was recounting all of the significant anniversaries in 2022 earlier this week, I definitely forgot a big one: the Sarbanes-Oxley Act! I hope all of the ...

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SEC Chair Requests More Resources

SEC Chair Gensler appeared before congressional committees this week to present the SEC’s fiscal year 2023 budget request. The SEC requests $2.149 billion, an 8% ...

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California Board Gender Diversity Law Ruled Unconstitutional

Last week, Judge Maureen Duffy-Lewis of the Superior Court of California, County of Los Angeles, found that SB 826, the California law requiring that ...

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Climate Change Proposal: The SEC’s Authority in the Spotlight

In my view, one of the more interesting letters submitted to date on the climate change rulemaking is one from a group of professors who examine the SEC’s authority to ...

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Privilege: Shielding Information from Your Directors?

Directors are fiduciaries and have the responsibility for overseeing the business and affairs of the company. In keeping with those responsibilities, directors generally ...

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SEC Climate Change Proposal: Small Business Weighs In

The SEC’s climate change disclosure proposal was on the agenda at last Friday’s meeting of the SEC’s Small Business Capital Formation Advisory Committee. As you ...

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Climate Change Proposal: SEC Extends Comment Period

Yesterday, the SEC extended the comment period for its controversial climate change disclosure proposal to June 17th. The comment period was scheduled to expire on May ...

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Enforcement: SEC Announces Crypto-Related MD&A Proceeding

On Friday, the SEC announced that it had initiated a settled enforcement proceeding against NVIDIA Corporation arising out of allegedly misleading MD&A disclosure ...

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SEC’s Rule 10b5-1 Proposal: Departure From Insider Trading Law?

I blogged earlier this week about a shareholder proposal that urged a company to impose additional restrictions on Rule 10b5-1 plans, which largely mirror the conditions ...

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Rule 10b5-1 Plans: Shareholder Vote Makes a Statement

If the comment letters from the likes of the Council of Institutional Investors, Colorado Public Employees’ Retirement Association and NYC Comptroller weren’t enough ...

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What Musk’s Twitter Deal Means for Stakeholder Capitalism

It’s impossible to know the internal machinations of any sensitive board decision, but there sure is a lot of speculation about how Twitter’s board arrived at ...

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SPACs: Exchanges Could Also Make Life Difficult

The SPAC market has been decidedly cooler this year — due to market conditions that are affecting all IPOs, yes — but also due to SEC skepticism that culminated in a ...

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SEC Climate Change Release: Will More Time Help?

This week, a group of 36 trade and industry associations submitted a comment letter to the SEC requesting that the Commission provide a substantial comment period for ...

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Cybersecurity Oversight: Batten Down the Hatches

On the heels of its March proposal on enhanced cybersecurity disclosure, the SEC announced earlier this week that it is allocating 20 additional positions to its newly ...

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War in Ukraine: Asking for the SEC’s Help

Earlier this month, the Ukrainian American Bar Association, Razom Inc. and the former Minister of Finance of Ukraine submitted a petition for rulemaking to the SEC, ...

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Chair Gensler and the Bond Market

Over seven years ago, I wrote an article for The Corporate Counsel titled “Still Your Father’s Oldsmobile: The SEC’s Recent Focus on the Corporate Bond Market,” ...

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Time to Prepare for Climate Change Rules?

I would be the first to admit that I usually say that it does not make much sense to begin preparing for compliance with new SEC rules when they are still in the ...

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What to Do with the COVID-19 Risk Factor?

As we begin the third year of the COVID-19 pandemic, the inevitable question arises with each reporting cycle: “Should we keep our COVID-19 pandemic risk factor and, ...

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Proposed 2022 DGCL Amendments Include Officer Exculpation

Some significant changes will be on the table when Delaware’s General Assembly considers the 2022 proposed amendments to the DGCL. Among other things, the proposed ...

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Form 10-Q: Reminders for the 1st Quarter of 2022

A Goodwin blog reminds 12/31 year-end filers that although they had to comply with the SEC’s 2020 MD&A amendments in their Form 10-K, this quarter’s 10-Q will be ...

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Regulation FD: Responding to a Potential Problem

It can happen to any public company — an executive is having a one-on-one with an investor or analyst and inadvertently discloses a tidbit of information that may be ...

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SPACs: Commissioner Peirce Calls Out Failure to Grant Acceleration Request

On April 14, 2022, a SPAC called Alberton Acquisition Corporation filed a Form 8-K announcing that its de-SPAC target had decided to terminate its merger agreement with ...

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Staff Comments: Russia’s Invasion of Ukraine

On her Twitter account, Olga Usvyatsky flagged a recent comment letter exchange between UPS and the Staff dealing with the potential impact of Russia’s invasion of ...

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Artificial Intelligence: The Next Corporate Governance Frontier

Eagle-eyed members may have noticed that we recently added an “Artificial Intelligence” Practice Area to the site. Shortly afterwards, Debevoise published a 5-page ...

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SEC Climate Change Proposal: Critics in Congress

It did not take long for several senators to come out in opposition to the SEC’s climate change rule proposal. Sen. Joe Manchin, D-West Virginia, perhaps not ...

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Another Control Deficiency for the SEC

In recent years, it seems the Commission has tried to be more transparent about its own control deficiencies. The Commission recently issued a statement providing ...

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Getting Your Annual Letter to Shareholders Right

Over on the Proxy Season Blog, Liz recently highlighted a topic that comes up time and time again at this time of year — what rules apply to the annual letter to ...

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Crypto: SAB No. 121 Addresses Accounting for Safeguarded Digital Assets

Corp Fin’s Accounting Staff recently issued SAB No. 121, which addresses the accounting treatment of safeguarded digital assets held by crypto platforms on behalf of ...

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Buybacks: Considerations for Volatile Times

If you’re thinking about initiating a stock repurchase during the current period of global turmoil and market volatility, be sure to check out the recent Skadden memo. ...

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Climate Change Proposal: What Will the Legal Challenges Look Like?

One thing about the SEC’s climate change rule proposal seems pretty certain: if the rules are adopted in their current form, they are going to face legal challenges. ...

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Ukraine Crisis: Guide to Cutting Business Ties with Russia

If your company or clients are among the ever-growing group of businesses looking to exit Russia after its invasion of Ukraine, you may want to take a look at the ...

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BlackRock’s Letter to Shareholders: Global Crisis No Match For Capitalism

You can imagine that Larry Fink, co-founder, Chair and CEO of the world’s largest asset manager, sat down six weeks ago to start outlining his letter to shareholders ...

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Third Time’s the Charm? SEC Reproposes Removing Credit-Rating References from Reg M

Yesterday, the SEC announced a 98-page release to repropose amendments to Regulation M that would remove the references to credit rating agencies from existing ...

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SEC Investigating Non-Audit Services

Our “Audit Fees” Handbook notes that shareholders tend to question auditor independence if a company’s proxy statement indicates that fees paid for non-audit ...

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The SEC’s Climate Disclosure Proposal is Here

Yesterday, the SEC issued its long-awaited climate disclosure proposal. The Commissioners voted 3-1 in favor of issuing the proposed amendments. This write-up from our ...

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A Pandemic Milestone: What Have We Learned?

We recently passed a significant milestone, the two-year anniversary of when the World Health Organization first characterized COVID-19 as a pandemic. We all no doubt ...

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SEC Trading and Markets Staff Issue Statement on Market Volatility

We have entered a period of highly volatile markets, and it certainly appears that more volatility is in store given recent economic shocks, the war in Ukraine and ...

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War in Ukraine: Key Accounting and Financial Reporting Challenges

A few weeks ago, I blogged about the general disclosure considerations for public companies arising from the war in Ukraine, including considerations for companies that ...

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Cybersecurity: SEC Proposes Cyber Disclosure Rules

The SEC recently announced that it was proposing a series of new rules focusing on enhanced disclosure of cybersecurity issues by public companies. Check out the ...

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SEC Enforcement: Accounting Actions Declined in 2021

According to a recent Cornerstone Research report, SEC & PCAOB accounting and auditing enforcement actions and monetary sanctions declined sharply in 2021. Here’s ...

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Financial Reporting: Going Concern Qualifications Hit a Record Low in 2020

According to an Audit Analytics report reviewing 21 years of “going concern” qualifications in public company audit reports, 2020 was a bit of a milestone year. ...

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Securities Lawyers’ Survey: Who Holds the Pen?

A recent article by Bloomberg Law’s Preston Brewer analyzes the results of a survey of in-house and outside securities, and capital markets lawyers concerning ...

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Lawsuit Shows Importance of Social Media Controls

In a webcast last year — “Cyber, Data & Social: Getting in Front of Governance” — we talked about the importance of social media oversight and controls. The ...

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BlackRock’s 2022 Engagement Priorities: Director Accountability For Long-Term Value

In a sign that the height of shareholder engagement season is approaching, BlackRock Investment Stewardship has released its 2022 Engagement Priorities. The asset ...

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SEC Proposes Monthly Disclosures About “Big Shorts”

On Friday, the SEC announced a proposal that would increase public info of short sale data. Even though I’ve been mainlining news alerts for about 8 hours/day this ...

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Warren Buffett Strikes a “Corporate Citizenship” Tone

Warren Buffett’s annual letter to Berkshire Hathaway shareholders came out this weekend. Although he says there wasn’t much “new or interesting” at the company ...

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The Conflict in Ukraine: More Disclosure Considerations

In yesterday’s blog we highlighted some of the disclosure considerations that could arise from the Russian invasion of Ukraine, but one issue that we did not address ...

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Conflict in Europe: Considerations for Public Companies

Overnight, Russia attacked Ukraine, despite intense efforts to find a diplomatic solution. The continuing tensions have prompted a spike in the price of oil and ...

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Regulation by Enforcement: BlockFi Flips the Script

Targets of SEC enforcement proceedings and advocacy groups have long complained about “regulation by enforcement.” Crypto evangelists have been particularly vocal ...

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Board Diversity: What About People with Disabilities?

Much of the discussion on board diversity issues has focused on race, gender and sexual preference, but this recent “Race to the Bottom” blog says more attention ...

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Crypto: If You Give a Mouse a Bitcoin…

I swear, I try to take crypto seriously — I really do. I mean, there are trillions of dollars being invested in it and lots of smart people think it’s the future. ...

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Universal Proxy: Language for this Year’s Proxy Statement

While the universal proxy rules won’t go live for most companies until next year, a Goodwin blog recommends including some language in this year’s proxy about next ...

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Section 13(d) Reform: SEC Proposal Has Arrived!

Even before SEC Chair Gary Gensler was officially confirmed to his current office, people were predicting that Section 13(d) reform would be high on his list of ...

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Rule 10b5-1: The Limits of an Affirmative Defense

The SEC has proposed significant changes to Rule 10b5-1 that may make complying with its requirements much more challenging. But despite a lot of commentary to the ...

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Settling Trades: SEC Proposes “T+1”

The SEC announced yesterday that the Commissioners voted to propose “market plumbing” rules that would shorten the settlement cycle for most broker-dealer ...

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Moralized Corporate Governance: How Codes of Ethics Are Changing

Codes of ethics are adapting to ESG issues: The average length of ethics codes increased from 6,054 words in 2008 to 7,821 words in 2019, an average increase of 29 ...

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Climate Disclosures: Changes in Response to Staff Comments

When we last checked in on Corp Fin’s review of filings for climate change disclosure, many of the reviews appeared to be ongoing. A Bloomberg Law article highlights a ...

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Delaware to Allow Use of Captives for D&O Insurance

Late last month, the Delaware legislature amended Section 145(g) of the Delaware General Corporation Law to clarify that the definition of insurance includes captives, ...

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Political Spending Oversight: Five “Best Practices”

Shareholder proposals that seek enhanced “political spending” disclosure garnered high levels of support last year, and I recently blogged on our “Proxy Season ...

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PRI’s Responsible Political Engagement Guidance

The Principles for Responsible Investment recently released its publication “The Investor Case for Responsible Political Engagement.” The PRI describes this ...

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The PCAOB Establishes Two Advisory Groups

The PCAOB has announced that it created of two new advisory groups — the Investor Advisory Group and the Standards and Emerging Issues Advisory Group. The PCAOB says ...

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SEC Staff Report on Credit Rating Agencies Addresses ESG Risks

Yesterday, the Staff issued its annual Staff Report on Nationally Recognized Statistical Rating Organizations (NRSROs), providing a summary of the Staff’s examinations ...

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NYSE Proposes Listing Standard for Rights

Last week, the NYSE proposed a new listing standard to rights. Currently, Section 703.03 of the NYSE Listed Company Manual provides for the unlisted trading of ...

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P4P Proposal: SEC Reopens Comment Period

Yesterday, the SEC announced that it was reopening the comment period for the Dodd -Frank-mandated pay-for-performance disclosure rules that the agency proposed way back ...

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Exclusive Forum Bylaws: 7th Cir. Says Companies Can’t Use Bylaws to Dodge 14(a) Claims

Section 27(a) of the Exchange Act vests federal courts with exclusive jurisdiction over claims arising under that statute. What happens when a company adopts a bylaw ...

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Insider Trading: SEC Prevails on Novel “Shadow Trading” Theory

The SEC recently scored a big win on the insider trading front, when a California federal court endorsed its novel “shadow trading” theory as the basis for a Rule ...

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Cybersecurity: SEC Chair Gensler Eyes New Disclosure Requirements

It’s no secret that rule amendments to enhance cybersecurity disclosure are on the SEC’s agenda, but in a speech yesterday at Northwestern Law School’s annual ...

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Non-GAAP: Want to Back Out Bitcoin? Staff Says “Fuggedaboutit”

I’ve previously blogged about some of the uncertainties involved in how to account for digital assets. In light of those uncertainties and Bitcoin’s volatility, ...

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NYSE: Annual Compliance Reminders

The NYSE has sent its “annual compliance guide” to listed companies to remind them of their obligations on a variety of topics and summarize developments since last ...

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Hybrid Shareholder Meetings: Here to Stay?

Several in-house people I’ve spoken with have said that having to plan a hybrid annual shareholder meeting would be the “worst of both worlds.” This format ...

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BlackRock Threads the Needle: Takeaways for Companies

Yesterday, BlackRock CEO Larry Fink rounded out the guidance we’ve seen over the past week from the “Big 3” asset managers, by sending his annual letter to ...

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Vanguard’s ’22 Voting Policies: Overboarding, Board Diversity & More

On Friday, Vanguard posted its 2022 proxy voting policies for US portfolio companies – which go into effect March 1st. Like SSGA, Vanguard’s updates also address ...

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Time to Review Your Insider Trading Policy?

One of the many interesting topics that came up during our webcast “Rule 10b5-1 & Buybacks: Practical Impacts of SEC’s Proposals” earlier this week (a replay ...

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State Street Announces 2022 Priorities

State Street Global Advisors released its annual letter to board members of portfolio companies outlining the engagement issues that SSGA will prioritize this year. The ...

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SEC Climate Change Comment Letters: Where Do They Stand?

A member recently asked in our Q&A Forum where things stand with the SEC’s review of filings for climate change disclosure. This focused review effort by the ...

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SEC Comment Periods Draw More Attention: Two Politicians Weigh In

In yesterday’s blog, I mentioned how the relatively short comment periods contemplated for the SEC’s recent rulemaking proposals have drawn some attention, even ...

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More Federal Register Delays?

At around this time last year, we were all wondering when the SEC’s financial information and MD&A rulemaking (which had been adopted in November 2020) was going ...

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Crypto: Corporate Finance for Art’s Sake?

A company called Hygienic Dress League issued a press release earlier this week announcing that it was planning to raise capital through a Reg A+ offering. You’re ...

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Corporate Transparency: FinCEN Proposes Beneficial Ownership Information Reporting Regs

I’m sorry to disappoint those of you hoping to hear something from the SEC on its long-anticipated 13(d) reporting reform proposal, but today I’m blogging about a ...

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Board Diversity: Boom Times for Director Candidate Training Programs

With corporate boards facing increasing pressure to improve diversity, a WSJ article says that training programs aimed at expanding the pool of potential director ...

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IPOs: 2021 Was a Banner Year — But What Does 2022 Have in Store?

According to EY’s recent Global IPO Trends Report, 2021 turned out to be another terrific year for IPOs. The report says that 2021 was the most active year for U.S. ...

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Restatements Hit 20-Year Low in 2020

According to a recent Audit Analytics report, 2020 saw the lowest percentage of financial restatement disclosures (Big R & Little r) in the 20 years that Audit ...

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SEC Notches Biggest SPAC Settlement Yet: $125 Million!

Last week, the SEC announced that electronic vehicle company Nikola had settled the Commission’s fraud proceedings against it for $125 million. The SEC is establishing ...

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NYSE Proposes Offering More “Freebies” to Listed Co’s

In addition to the proposed changes to NYSE listing fees, the SEC also posted notice of a proposed NYSE rule change to Section 907.00 of the Listed Company Manual. ...

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Retail ESG Activism: There’s an App For That

I’ve blogged a few times about the impact that retail investors could begin to have on proxy voting — there’s a write-up from last spring about how increasing ...

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Corp Fin Publishes Sample Letter to China-Based Companies

Yesterday, the Staff of the Division of Corporation Finance published a sample letter highlighting comments issued to companies that are based in, or that have the ...

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Rule 10b5-1: SEC Proposes Amendments to Conditions and Disclosure Requirements

Yesterday, the SEC issued proposed amendments to Rule 10b5-1 and related rules imposing new conditions and disclosure requirements for Rule 10b5-1 plans and securities ...

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DOJ Launches Investigation of Short Sellers

Not that I’m crying any crocodile tears for short sellers, but 2021 hasn’t been the greatest of years for them. The meme stock crowd handed short sellers their lunch ...

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Shareholder Proposals: Corp Fin Returns to Written Responses to No-Action Requests

A couple of years ago, Corp Fin initiated a policy under which some Rule 14a-8 no-action requests received an oral response only. Yesterday, Corp Fin announced that it ...

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Restatements: “Little r” Determinations Draw Staff Attention

Liz has already blogged a couple of times about Acting Chief Accountant Paul Munter’s statement recapping the OCA’s 2021 activities. For a blogger, this thing is one ...

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Revenue Manipulation: You Can’t Choose Your Numbers In Advance

I blogged earlier this week about current focus areas for the SEC’s Office of the Chief Accountant. One of those focus areas is revenue recognition — and on the same ...

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