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SEC Proposes to Expand “Test-the-Waters” Communications to all Issuers

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The SEC has proposed new rules that would permit all issuers to solicit investor views about potential offerings to be taken into account at an earlier stage in the process than is the case today. The new rule and related amendments would expand the “test-the-waters” accommodation—currently available to emerging growth... Read More

Topics: Public Companies and Securities

Crypto Mom Warns SEC of Over Expansive Definition of Howey in Token Offerings

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SEC Commissioner Hester M. Peirce was awarded the nick name “Crypto Mom” by digital asset aficionados in a previous speech encouraging forward thinking by the SEC in the regulation of tokens and initial coin offerings. Crypto Mom has now given her view on the application of the Howey test to... Read More

Topics: Blockchain Technology, Crowdfunding, Public Companies and Securities

No Action Relief Prompts Clarification from SEC Chair on Mandatory Arbitration

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In a novel sequence of events, SEC Chair Jay Clayton issued a statement on February 11, 2019 expressing the Commission’s non-view on mandatory shareholder arbitration provisions implemented by publicly-listed companies. The statement was released in conjunction with a no-action letter from Corp Fin staff issued on the same day concurring with the... Read More

Topics: Public Companies and Securities

SEC Provides Guidance on Diversity Disclosures

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In two new Compliance and Disclosure Interpretations (Questions 116.11 and 133.13), the SEC staff provided guidance on disclosure of self-identified specific diversity characteristics of board members and board nominees. The full text the C&DI’s (which are identical) are set forth below. Question: In connection with preparing Item 401 disclosure relating to... Read More

Topics: Public Companies and Securities

SEC Says Disclosing Material Internal Control Weaknesses is not a Substitute for Maintaining Internal Controls

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The SEC announced settled charges against four public companies for failing to maintain internal control over financial reporting, or ICFR, for seven to 10 consecutive annual reporting periods. Two of the charged companies also failed to complete the required evaluation of the effectiveness of ICFR for two consecutive annual reporting... Read More

Topics: Litigation, Public Companies and Securities

IOSCO Speaks to ESG Disclosures

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The International Organization of Securities Commissions, or IOSCO, published a statement setting out the importance for issuers of considering the inclusion of environmental, social and governance, or ESG, matters when disclosing information material to investors’ decisions. According to IOSCO, issuers are encouraged to consider the materiality of ESG matters to... Read More

Topics: Public Companies and Securities

Revising 162(m) Disclosures in Proxy Statements

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The Section 162(m) deduction limit for performance-based compensation was repealed by the Tax Cut and Jobs Act, effective for taxable years beginning after December 31, 2017, subject to transition relief. Public companies should consider revising disclosures in their upcoming proxy statements. Recently filed proxy statements may provide some ideas, a... Read More

Topics: Employment, Executive Compensation, Public Companies and Securities