Topic: 1934 Act Filings

SEC Issues New C&DIs Regarding Disclosure of Board Qualifications and Diversity Characteristics

On February 6, 2019, the SEC staff issued two new identical C&DIs that apply to Item 401 of Regulation S-K, Question 116.11, and Item 407 of Regulation S-K, Question 133.13.  The new interpretation provides guidance on disclosure when a director or a director nominee voluntarily provide self-identified diversity characteristics, such as their race, gender, ethnicity, religion, nationality, disability, sexual orientation, or cultural background, and the director or nominee has consented to disclosure of these diversity characteristics.

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SEC Takes Seriously Both Internal Control Weakness Disclosure and Remediation

On January 29, 2019, the SEC announced settled enforcement actions against four companies for ‎failures to maintain internal control over financial reporting (“ICFR”) as required by Section ‎‎13(b)(2)(B) of the Securities Exchange Act and Rule 13a-15 over extended periods even though ‎in most cases material weaknesses in their ICFR were disclosed.‎

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Earnings Releases, Non-GAAP Financial Measures and SEC Enforcement: Pay Attention to Your Headings and Bullet Points

On December 26, 2018, the Securities and Exchange Commission (“SEC”) entered a Cease-and-Desist Order (see here) against ADT Inc. (“ADT”) pursuant to Section 21C of the Securities Exchange Act of 1934 (the “Exchange Act”) based on ADT’s failure to give equal or greater prominence to comparable GAAP financial measures in two of its earnings releases containing non-GAAP financial measures.

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SEC’s New Rules on Hedging Disclosure

On December 18, 2018, the Securities and Exchange Commission (the “SEC”) adopted final rules requiring companies to disclose in proxy or information statements for the election of directors any practices or policies regarding the ability of directors or employees to engage in certain hedging transactions with respect to company equity securities. New Rule 407(i) of Regulation S-K follows the SEC’s proposal with some modifications reflecting commenter suggestions.

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CorpFin Provides Relief on Effectiveness of “Disclosure Simplification” Rules

As discussed in more detail in our QuickStudy (available here), on August 17, 2018 the Securities and Exchange Commission (the “SEC”) adopted numerous amendments to its disclosure requirements that were intended to simplify compliance for issuers by eliminating certain redundant, overlapping, outdated or superseded disclosure requirements (the “Disclosure Simplification Rules”).

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