On February 21, the US Supreme Court decided Digital Realty Trust, Inc. v. Somers (583 U.S. ____ (2018)), which resolved a circuit split related to whether the anti-retaliation provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act, 124 Stat. 1376 (Dodd-Frank) extend to individuals who have not reported a securities law violation to the Securities and Exchange Commission and, therefore, falls outside of Dodd-Frank’s definition of a “whistleblower.”
Continue Reading

On Thursday, December 14 at 12:00 p.m. (CT), please join Katten Muchin Rosenman LLP, Ernst & Young LLP and Strategic Governance Advisors for a webinar discussion of key developments and trends impacting public companies in the 2018 annual reporting and proxy season.

Further details are available here; click here to register.

As previously discussed in the September 1edition of Corporate & Financial Weekly Digest, the Financial Accounting Standards Board (FASB) had issued Proposed Accounting Standards Update (ASU) No. 2015-310, in which the FASB had proposed to remove its definition of materiality established in Concepts Statement No. (CON) 8, Conceptual Framework for Financial Reporting, in favor

On November 6, the Division of Corporation Finance (Division) of the Securities and Exchange Commission issued Compliance and Disclosure Interpretation (C&DI) 271.25 to address permissible safeguards for protection of Rule 701(e) electronic disclosures. Rule 701 provides an exemption from registration under the Securities Act of 1933 for offers and sales of securities under written compensatory benefit plans and contracts to an issuer’s employees, directors, consultants and advisors. Rule 701(e) requires an issuer relying on the Rule 701 exemption to deliver to each investor a copy of the applicable benefit plan or contract. In addition, if the issuer sells securities with a value in excess of $5 million during any consecutive 12-month period, then, a reasonable period of time before the date of sale, the issuer must deliver additional information listed in Rule 701(e) (including financial statements and information about the risks associated with the investment), which requirement may be satisfied by an issuer delivering such information electronically.
Continue Reading

ISS Releases 2018 Proxy Voting Guideline Updates

On November 16, the Institutional Shareholder Services (ISS) published its 2017 Proxy Voting Guideline Updates, which will be effective for shareholder meetings held on or after February 1, 2018. The US 2018 updates cover numerous policies, and significant changes are summarized below.
Continue Reading

On September 15, at the ABA Business Law Section Annual Meeting, the Securities and Exchange Commission (SEC) Division of Corporation Finance (Division) Director Bill Hinman provided remarks on various matters, including the Division’s focus on capital formation-related matters. Of particular note, Director Hinman indicated that he expects that Item 402 of Regulation S-K (the Pay

The Securities and Exchange Commission’s (SEC) Division of Corporation Finance (Division) recently issued three new Compliance and Disclosure Interpretations (C&DIs) related to so-called “Regulation A+.”

The new C&DIs address the following issues (among others):

C&DI 182.21 provides that a Regulation A issuer that registers a class of its securities pursuant to the Securities Exchange Act of 1934 on a Form 8-A concurrently with (i.e., within five days after) the qualification of a post-qualification amendment to a Form 1-A must include in the post-qualification amendment financial statements that are current at the time the post-qualification amendment is qualified. The full text of this C&DI can be found here.
Continue Reading

In its most recently completed session, the Delaware state legislature adopted amendments to various provisions of the Delaware General Corporation Law (DGCL). These amendments became effective August 1. While many of the amendments were technical in nature (e.g., amendments to the merger provisions of DGCL §§ 252, 253, 258 and 267 to consistently use the term “foreign corporation” when referring to corporations organized under the laws of any jurisdiction other than the State of Delaware), others are of more significance to practitioners.
Continue Reading

On May 4, Jay Clayton was sworn into office as the new chairman of the Securities and Exchange Commission. As discussed in the January 6 edition of the Corporate & Financial Weekly Digest, Mr. Clayton was a partner at Sullivan & Cromwell and was nominated to serve as SEC chairman by President Donald Trump.

On March 13, the New York Stock Exchange (NYSE) issued a proposed rule to amend the provisions related to the qualification of companies listing without a prior registration under the Securities Exchange Act of 1934 (Exchange Act). This proposed rule amends Footnote (E) of Section 102.01B of the NYSE Listed Company Manual (Footnote (E)) and would allow companies to be listed on the NYSE without an initial public offering or other registration statement under the Securities Act of 1933 (Securities Act).
Continue Reading