Topic: Proxy Statements

Proxy Voting and Voting Advice: SEC Provides Guidance for Investment Advisers and Proxy Advisory Firms

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.

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SEC Proposes Changes to Disclosure Requirements regarding Business, Legal Proceedings and Risk Factors

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.[1] The SEC stated goal is to improve these disclosures for investors and to simplify compliance for registrants.

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SEC Continues to Grapple with Mandatory Arbitration Hot Potato

The Securities and Exchange Commission has again had to confront how to react to a mandatory arbitration provision that would have the effect of denying investors the ability to pursue federal securities law claims as a class action in a federal court.  Mandatory arbitration provisions are controversial as a policy, legal and political matter and have presented the SEC with challenges. 

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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’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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Corp Fin Issues New Staff Legal Bulletin on Excluding Shareholder Proposals

On October 23, 2018, the Division of Corporation Finance (the “Division”) of the Securities and Exchange Commission issued Staff Legal Bulletin No. 14J (available here) (“SLB No. 14J”), which provides the Division’s latest views on the scope and application of the “economic relevance” exception (Rule 14a-8(i)(5)) and the “ordinary business” exception (Rule 14a-8(i)(7)) to shareholder proposals submitted under Rule 14a-8.

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