Disclosure Requirements

In December 2020, President Donald Trump signed into law the Holding Foreign Companies Accountable Act (the HFCAA). The HFCAA requires auditors of foreign companies that are publicly traded in the US to allow the Public Company Accounting Oversight Board (PCAOB) to inspect the auditors’ audit work papers for audits of non-US operations. If a company’s auditors fail to comply with the inspection requirement for three consecutive years, trading in such foreign company’s securities would be prohibited in US markets. The HFCAA also amends the Sarbanes-Oxley Act of 2002 (the Sarbanes-Oxley Act), mandates that the Securities and Exchange Commission identify foreign issuers that use an audit firm that is located in a foreign jurisdiction in which the PCAOB is restricted from inspecting or investigating the audit firm, and imposes additional SEC disclosure requirements on such foreign issuers.
Continue Reading Holding Foreign Companies Accountable Act Signed Into Law by President Trump

On January 13, the European Securities and Markets Authority (ESMA) published a statement reminding firms of the requirements under the Markets in Financial Instruments Directive (MiFID II) relating to the provision of investment services to retail or professional clients by firms not established or situated in the EU (the Statement).
Continue Reading ESMA Reminds Firms of MiFID II Rules on Reverse Solicitation Post-Brexit

On November 16, the Financial Industry Regulatory Authority (FINRA) filed with the Securities and Exchange Commission a proposed rule change to (1) adopt FINRA Rule 4111 (Restricted Firm Obligations), which would impose additional conditions on member firms with a history of misconduct; and (2) adopt FINRA Rule 9561 (Procedures for Regulating Activities Under Rule 4111) and amend FINRA Rule 9559 (Hearing Procedures for Expedited Proceedings Under the Rule 9550 Series) to create a new expedited proceeding to implement proposed Rule 4111.
Continue Reading FINRA Files Proposed Rule Change to Address Firms With History of Misconduct

On October 21, the Division of Swap Dealer and Intermediary Oversight (DSIO) of the Commodity Futures Trading Commission issued an advisory to futures commission merchants (FCMs) regarding the holding of virtual currency in segregated accounts. The advisory, Letter No. 20-34, provides guidance to FCMs on how to hold and report certain deposited virtual currency from customers in connection with physically delivered futures contracts or swaps and how to maintain appropriate risk management programs concerning the acceptance of virtual currencies as customer funds.
Continue Reading CFTC Staff Issues Advisory on Virtual Currency for Futures Commission Merchants

On September 21, the European Supervisory Authorities (ESAs) published a survey setting out the details on mandatory disclosure templates on sustainability‐related disclosures in financial services (the Survey).
Continue Reading ESG: EU Survey on Mandatory Disclosure Templates for Use by Financial Services Firms

On September 9, the Division of Corporation Finance (the Division) of the Securities and Exchange Commission amended CF Disclosure Guidance: Topic No. 7 providing guidance to address alternatives for handling expiring “traditional” confidential treatment requests. This guidance amends and supplements Topic No. 7 issued by the Division on December 19, 2019.

The Division notes in Topic 7 that a company that previously has obtained a confidential treatment order with respect to a particular contract have three choices of what to do when the order is about to expire.
Continue Reading SEC Division of Corporation Finance Issues Additional Guidance Related to Expiring Confidential Treatment Orders

On September 9, the Climate-Related Market Risk Subcommittee of the Market Risk Advisory Committee of the Commodity Futures Trading Commission released a comprehensive report addressing potential risks to the financial system arising from, or related to, climate change. The report is the first of its kind from a US financial regulator. Its findings and recommendations are wide-ranging, frequently extending beyond the CFTC’s remit.
Continue Reading CFTC Subcommittee Releases Report on Managing Climate Risk in the US Financial System

The Commodity Futures Trading Commission will hold an open meeting on September 17, from 10:00 a.m. to 3:00 p.m. ET, to consider adopting several final rules, including with respect to:

  1. registration with alternative compliance for non-US derivative clearing organizations;
  2. amendments to real-time public reporting requirements under the CFTC’s Part 43 rules;
  3. amendments to swap data recordkeeping and reporting requirements under the CFTC’s Part 45 rules; and
  4. amendments to the CFTC’s regulations relating to certain swap data repository and data reporting requirements.

Continue Reading CFTC to Hold an Open Commission Meeting on September 17

On August 26, the Securities and Exchange Commission adopted amendments to modernize the required disclosures under Regulation S-K regarding a company’s business description (Item 101), legal proceedings (Item 103) and risk factors (Item 105) (the Amendments). In a press release, the SEC staff noted that the Amendments are in line with the SEC’s long-standing commitment to a principles-based, registrant-specific approach to disclosure that, although prescriptive in some respects, focuses on materiality and is designed to provide an understanding of each registrant’s business, financial condition and prospects. The staff also noted that the Amendments are intended to result in disclosure that will be presented in a manner that is more readable because of the reduction of immaterial and/or repetitive disclosure and will also be more in line with the way that a registrant’s management and board of directors manage and assess the registrant’s performance. The Amendments reflect the adoption of rule amendments the SEC originally proposed in August 2019 (the Proposals), which were previously discussed in the August 16, 2019 edition of Corporate & Financial Weekly Digest, with certain modifications. The key changes made by the Amendments:
Continue Reading SEC Adopts Rule Amendments to Modernize Business, Legal Proceedings and Risk Factor Disclosures Required by Regulation S-K

On August 14, the Financial Industry Regulatory Authority (FINRA) issued Regulatory Notice 20-28 that included an updated Security Futures Risk Disclosure Statement (the “2020 Statement”). The uniform Security Futures Risk Disclosure Statement (the “Statement”) was jointly developed by FINRA, the National Futures Association (NFA) and several other self-regulatory organizations. The Statement is composed of nine sections and discusses the characteristics and risks of standardized security futures contracts traded on regulated US exchanges.
Continue Reading FINRA Releases an Updated Security Futures Risk Disclosure Statement