On September 6, 2019, the SEC’s Division of Corporation Finance announced two notable revisions to its approach to handling no-action requests by companies seeking to exclude shareholder proposals under Rule 14a-8.
On August 26, 2019, New York Governor Andrew Cuomo signed into law a significant change affecting New York’s blue sky law (the Martin Act),extending the period during which the Attorney General of New York can take action for violations of the Act to 6 years from the 3 year statute of limitations that the New York Court of Appeals determined was applicable in 2018 in People v. Credit Suisse Sec. (USA) LLC. This change restores the longer period the Attorney General thought it had to investigate and bring actions.
It is common for investors in venture capital and private equity transactions, and in other investment arrangements, as a condition to their investment, to have rights to appoint board observers when director representation is not available. An unanswered question has been the extent to which a board observer has liability exposure under Section 11 of the Securities Act of 1933, for example, when a company goes public.
On August 23, 2019, the Securities and Exchange Commission (the “SEC”) announced that in its fiscal year 2020 the fees that public companies and other issuers pay to register their securities with the SEC will be set at $129.80 per million dollars.
On August 21, 2019, the SEC provided guidance (available here) to investment advisers, such as fund managers, regarding their proxy voting responsibilities. The SEC also concurrently issued an interpretative release (available here) regarding the applicability of the SEC’s proxy rules to proxy voting advice provided by proxy advisory firms, such as ISS and Glass Lewis.
The Securities and Exchange Commission (“SEC”) adopted Regulation FD (Fair Disclosure) in 2000 to help level the playing field among market participants by proscribing the selective disclosure of material nonpublic information. Regulation FD has had a profound impact on public company communications practices and public disclosures.
The SEC’s Inline XBRL requirements now apply to large accelerated filers. As registrants have started using Inline XBRL for their filings, a number of questions have come up. On August 20, 2019, the staff of the SEC’s Division of Corporation Finance issued 9 new Compliance and Disclosure Interpretations (CDIs) to help answer some of those questions.
Over the past several months, there has been an increase in credit agreements and high-yield bond indentures with provisions designed to limit the influence of lenders whose economic interest is not aligned with their investment in the loans or bonds being issued pursuant to such credit agreement or indenture.
On August 8, 2019, the Securities and Exchange Commission (“SEC”) released a proposal (“Proposing Release”) to modernize the description of business, legal proceedings, and risk factor disclosures that registrants are required to make pursuant to Regulation S-K. The SEC stated goal is to improve these disclosures for investors and to simplify compliance for registrants.
On July 25, 2019, the U.S. Securities and Exchange Commission (“SEC”) issued a “no-action” letter to Pocketful of Quarters, Inc. (“PoQ”) for its Ethereum ERC-20 token “Quarters.” The no-action letter—the second letter issued by the SEC this year—assures PoQ that the SEC will not seek any enforcement action.