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Category Archives: Disclosure Guidance

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To 13G or not to 13G

Posted in Disclosure Guidance, SEC

On July 14, the SEC Staff published a new Compliance and Disclosure Interpretation clarifying when an investor who may not be entirely passive may nonetheless remain eligible to file a beneficial ownership report on Schedule 13G rather than Schedule 13D.  Anyone who has tried to dance on the head of that pin will be relieved,… Continue Reading

What happens in England

Posted in Announcements, Bob's Upticks, Corporate Governance, Disclosure Guidance, International

The United Kingdom has a new Prime Minister.  Her name is Theresa May, and she’s a member of the Conservative Party.  Remember that, because what you are about to read will probably lead you to think otherwise. In a speech made a couple of days before Ms. May became Prime Minister, she said that she would… Continue Reading

Smaller gets bigger

Posted in Disclosure Guidance, SEC

In recent years, the SEC – frequently due to Congressional mandates – has reduced the amount of disclosure that smaller public companies must provide.  Most recently, on June 27, the SEC proposed yet another rule that would reduce disclosure burdens by enabling more companies to qualify as “smaller reporting companies,” or “SRCs.” The proposal would… Continue Reading

Coming soon to an SEC filing near you: board diversity (but not sustainability…for now)

Posted in Announcements, Bob's Upticks, Corporate Governance, Disclosure Guidance, Diversity, investor empowerment

In a June 27 speech to the International Corporate Governance Network, SEC Chair Mary Jo White engaged in a bit of full disclosure herself: “I can report today that the staff is preparing a recommendation to the Commission to propose amending the rule to require companies to include in their proxy statements more meaningful board… Continue Reading

Nasdaq-listed companies must now disclose director “golden leash” arrangements

Posted in Compensation, Corporate Governance, Disclosure Guidance, Nasdaq

A little over two years ago, the Council of Institutional Investors (“CII”) asked the SEC to review its proxy disclosure rules related to director compensation received from third parties, which we had blogged about here. At the time, the CII was concerned that the existing proxy rules did not capture compensation that may be paid… Continue Reading

The SEC’s summer menu

Posted in Bob's Upticks, Disclosure Guidance, SEC

In recent weeks, the SEC has given public companies some new menu items, including the following: On June 1, the SEC adopted an “interim final rule” that permits companies to include a summary of business and financial information in Annual Reports on Form 10-K.  The rule implements a provision of the Fixing America’s Surface Transportation… Continue Reading

Another zombie from the PCAOB

Posted in Accounting, Bob's Upticks, Disclosure Guidance, PCAOB

Over the years, the PCAOB has developed a reputation for pursuing zombie proposals – proposals that appear to be dead due to widespread opposition and even congressional action.  Remember mandatory auditor rotation?  It practically took a stake through the heart to kill that one off, and I’m informed that even after it was presumed to… Continue Reading

Mind the GAAP

Posted in Accounting, Bob's Upticks, Disclosure Guidance, SEC, SEC Enforcement

Until recently, I’ve firmly believed that the SEC’s use of the bully pulpit can be effective in getting companies to act – or refrain from acting – in a certain way.  Speeches by Commissioners and members of the SEC Staff usually have an impact on corporate behavior.  However, the use of non-GAAP financial information –… Continue Reading

Another SEC concept release

Posted in Bob's Upticks, Disclosure Guidance, SEC

  On April 13, the SEC authorized the issuance of a major concept release. Concept releases are trial balloons that the SEC publishes to elicit input on possible rulemaking, including whether rulemaking is needed and what form it should take if it happens. The April 13 concept release is entitled “Business and Financial Disclosure Required… Continue Reading

Governance by the numbers

Posted in Bob's Upticks, Corporate Governance, Disclosure Guidance, investor empowerment

One of the hottest topics in governance today is director refreshment. (No, that doesn’t refer to what your board members have for lunch.)  Boards comprised of long-serving directors do, in fact, tend to be “pale, male and stale” – i.e., comprised of old white men. Self-perpetuating boards are less likely to be diverse, and there… Continue Reading

News from the front lines

Posted in Bob's Upticks, Corporate Governance, Disclosure Guidance, IPOs, Mergers and Acquisitions, SEC

Two news items from the front lines: First, you may recall my mentioning that the Council of Institutional Investors was considering adopting a new policy that would limit newly public companies’ ability to include “shareholder-unfriendly” provisions in their organizational documents (see “Caveat Issuer“, posted on February 13).  I just came back from Washington, DC, where… Continue Reading

Bespoke financial data?

Posted in Accounting, Bob's Upticks, Disclosure Guidance, SEC

According to SEC Chair White, regulators are looking – and not happily – at companies’ increasing use of customized financial disclosures.  In fact, her recent remarks suggest that additional regulation is not being ruled out to curb the use of such “bespoke” data. For some of us it may seem like only yesterday – though… Continue Reading

They’re back…

Posted in Bob's Upticks, Disclosure Guidance, SEC

Those of you who’ve been following my postings know that I’m not a fan of Congressional interference in the workings of the SEC. Well, those same wonderful folks who’ve garnered the lowest opinion ratings in history are at it again. First, you may recall that Congress acted a few weeks ago to avoid another federal… Continue Reading

Conflict management: the Staff Legal Bulletin on shareholder proposals

Posted in Disclosure Guidance, Proxy access, Shareholder proposals

The SEC has issued its much-anticipated Staff Legal Bulletin on two rules impacting shareholder proposals. You can find the SLB here. The SLB looks a bit more benign than some had feared; in other words, it’s got some bad news, but the good news is that it’s not as bad as some feared. Rule 14a-8(i)(9)… Continue Reading

Pay ratio (unfortunately) coming to public company filings soon

Posted in Disclosure Guidance

After much foot dragging, I have finished reading the adopting release for the new pay ratio disclosure rules.  Yes, the release is long (300 pages or so), but adopting releases are always long.  The real reason why it took so long is that the whole concept of pay ratio disclosure just seems silly to me… Continue Reading

Pay ratio disclosure: Myths and madness

Posted in Bob's Upticks, Compensation, Corporate Governance, Disclosure Guidance, SEC

It’s done. On August 5, the SEC adopted final rules that will require publicly traded companies to disclose the ratio of the CEO’s “total compensation” to that of the “median employee.” We’re still wending our way through the massive (294 pages) adopting release, but one piece of good news (possibly the only one) is that… Continue Reading

 Summer doldrums in DC? Not so much!

Posted in Accounting, Bob's Upticks, Compensation, Disclosure Guidance, PCAOB, SEC

For those who think nothing ever gets done in Washington, last week must have been a challenge. From outward appearances, both the SEC and the PCAOB seem to be working overtime, possibly in order to ruin our holiday weekend or at least lay some guilt on us for not spending the weekend reading what they’ve… Continue Reading

The third horseman leaves the paddock

Posted in Bob's Upticks, Compensation, Disclosure Guidance

It shouldn’t come as a surprise to anyone nerdy enough to be reading this blog that the Dodd-Frank Act mandated SEC rulemaking in four areas relating to the disclosure of executive compensation: pay ratio, hedging, clawbacks, and pay-for performance. These items have been variously referred to as the “four horsemen” (as in apocalypse) or the… Continue Reading

CEO pay ratios: ineffective disclosure on steroids

Posted in Bob's Upticks, Compensation, Disclosure Guidance

On Sunday, April 12, the Business section of the New York Times led with an article by Gretchen Morgenson taking the SEC to task for not having adopted rules requiring disclosure of CEO pay ratios. This follows similar complaints by members of Congress, most recently in the form of a March letter by 58 Democratic… Continue Reading

Ineffective disclosure

Posted in Bob's Upticks, Disclosure Guidance

It’s not for nothing that I’m a securities lawyer.  I sincerely believe in the need for and efficacy of full and fair disclosure, both professionally and personally.  That’s one of the many reasons why I have been advocating disclosure reform – or, as we now call it, “effective disclosure” – to assure that important matters… Continue Reading

In sickness and in health

Posted in Bob's Upticks, Disclosure Guidance

Jamie Dimon, CEO of JPMorgan Chase, is reputed to be a decisive person with a strong personality.  Of course, that shouldn’t be news to anyone who follows business or who knows what it takes to be CEO of a major company.  So it’s interesting that he recently said that he struggled with whether JPM should… Continue Reading

Update to the JOBS Act? Probably not…

Posted in Disclosure Guidance

On January 14th, the House passed H.R. 37 “Promoting Job Creation and Reducing Small Business Burdens Act.”  Although passed with some support from the Democrats (29 votes, which in these days of hyper-partisanship is practically a bipartisan bill), the White House issued a veto threat on January 12th because the bill also delays part of… Continue Reading

Wrong turn?: Is the SEC looking to further expand its regulatory jurisdiction through the disclosure process?

Posted in Disclosure Guidance

In the wake of the recent financial crisis, the Dodd-Frank Act created the SEC Investor Advisory Committee with the stated purpose of advising the SEC on (i) regulatory priorities of the SEC; (ii) issues relating to the regulation of securities products, trading strategies, and fee structures, and the effectiveness of disclosure; (iii) initiatives to protect… Continue Reading

Despite First Amendment concerns, the conflict minerals rule is here to stay

Posted in Disclosure Guidance

A few months ago, the U.S. Court of Appeals for the D.C. Circuit upheld portions of Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, known as the “conflicts mineral rule.” The rule, enacted by Congress in July of 2010,requires certain public companies to provide disclosures about the use of specific conflict… Continue Reading