Category: Exchange Act Reporting and Disclosure Effectiveness

SEC Provides Guidance on the Use of Metrics in MD&A; Also Proposes Amendments to Simplify and Modernize MD&A and Related Financial Disclosures

Christopher L. Doerksen

On January 30, 2020, the SEC issued new guidance to companies that use key performance indicators and metrics in their MD&A. Concurrently, the SEC also proposed amendments that would significantly simplify and modernize the requirements for a company’s MD&A and related financial disclosures. New MD&A Guidance The SEC’s new guidance is effective immediately, and applies to all key performance indicators and metrics used in a...

SEC Proposes Resource Extraction Payments Disclosure Rules

Jason Brenkert

At the Securities and Exchange Commission’s (the “Commission”) open meeting on December 18, 2019, the Commissioners proposed rules to require resource extraction issuers to file an annual Form SD that includes information about payments related to the commercial development of oil, natural gas, or minerals that are made to a foreign government or to the U.S. federal government. The proposed rules implement Section 13(q) of...

SEC Adopts Proposed Rules for Procedural Requirements and Resubmission Thresholds for Shareholder Proposals and Exemptions from Proxy Rules for Proxy Voting Advisors

Jason Brenkert

At the SEC’s open meeting yesterday (November 5, 2019), the Commissioners approved two new proposed rules in their ongoing efforts to modernize proxy solicitation and shareholder proxy access, as follows: (1) amendments to certain procedural requirements, including ownership requirements, documentation requirements, meetings to discuss proposals and limitations on the number of proposals submitted, and resubmission thresholds for shareholder proposals, and (2) amendments to proxy rules...

SEC to Discuss Proxy Adviser Regulation and Resubmission Thresholds for Shareholder Proposals at November 5, 2019 Open Meeting

Jason Brenkert

Yesterday the SEC announced the agenda for its upcoming open meeting to be held on Tuesday, November 5 at 10:00 a.m. EST. All SEC open meetings are webcast and a hyperlink to the webcast will be posted to www.sec.gov shortly before the start of a meeting. The SEC has indicated that the agenda, in part, will focus on “continued efforts to facilitate constructive shareholder engagement and...

SEC Will Adjust 8-K Receipt Dates Based on EDGAR Technical Difficulties

Cam C. Hoang

  The SEC posted a notice yesterday addressing EDGAR technical difficulties which may impact filers’ ability to make timely submissions.  For those issuers who, due to technical difficulties, are unable to furnish or file earnings information on Form 8-K within 48 hours before the earnings conference call, the staff will adjust the receipt date of such Form 8-K so that it will be deemed furnished...

Retrospective Changes to Financials? Consider the Periods Covered in the MD&A

Cam C. Hoang

For SEC reporting companies providing financial statements covering three years in a filing, discussion about the earliest of the three years may be omitted from the MD&A if such discussion was already included in the company’s prior filings on EDGAR, provided that the company provides a statement that identifies the location in the prior filing where the omitted discussion may be found.  See our summary...

Observations and Recommendations on the SEC’s Recent Process Changes for Excluding Shareholder Proposals

Cam C. Hoang

Overview Earlier this month, the SEC’s Division of Corporation Finance announced that its staff may respond orally instead of in writing to some shareholder proposal no-action requests, beginning with the 2019-2020 proxy season.   Furthermore, the staff may now more frequently decline to state a view on the no-action request, whereas in the past, it had typically concurred or disagreed with a company’s asserted basis for...

SEC Charges TherapeuticsMD with Regulation FD Violations

Jonathan B. Abram

Last week, the SEC issued a reminder that Regulation FD remains a vital element of the federal securities regulations. In the first enforcement action regarding Regulation FD since 2013, the SEC charged TherapeuticsMD Inc., a pharmaceutical company, with violations of Regulation FD based on its sharing of material, nonpublic information with sell-side research analysts without also disclosing the same information to the public. The SEC’s...

SEC Proposes to Revise the Accelerated and Large Accelerated Filer Definitions

Governance & Compliance Insider Team

The SEC proposed amendments that would revise the definitions of “accelerated filer” and “large accelerated filer.” These proposed revisions follow amendments adopted by the SEC on June 28, 2018, that expanded the smaller reporting company (SRC) definition and so brought some issuers under both the definitions of an accelerated filer and an SRC. As a result of last year’s amendments, some SRCs must have an...