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Does Context Matter in Interpreting Financial Information?

By Alex Kim and Valeri V. Nikolaev October 25, 2023 by renholding

The Management Discussion and Analysis (MD&A) section of annual reports is widely credited with providing valuable information about public companies. Yet largely unexplored is the extent to which narrative context influences and complements the numerical data presented in that section. …

SEC Enforcement Chief Speaks on Corporate Compliance

By Gurbir Grewal October 25, 2023 by renholding

I’d like to start by returning to a theme that I’ve touched on before, and that is how public trust in our institutions is faltering.[1] No sector is immune from this trend. From Congress to law enforcement to the

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Debevoise Discusses Supreme Court Case on Whether a Private Right of Action Exists for Deficient MD&A

By Matthew Kaplan, Maeve O’Connor, Jonathan Tuttle, Benjamin Pedersen and Anna Moody October 23, 2023 by renholding

The Supreme Court has agreed to hear an appeal relating to whether there is a private right of action for omissions from the disclosures required by Item 303 of Regulation S-K (i.e., Management’s Discussion and Analysis of Financial Condition and …

Arnold & Porter Discusses ESG, Whistleblowing, and Compliance Programs

By Ellen Kaye Fleishhacker, Jane Norberg, Christian Schultz, Erik Walsh and Michael Treves October 19, 2023 by renholding

On September 25, the U.S. Securities and Exchange Commission (SEC) announced a US$19 million settlement with the investment adviser DWS Investment Management Americas Inc. (DIMA) for material misstatements and shortcomings in its policies and procedures related to Environmental, Social and …

SEC Chair on Final Rules Regarding Short Sale Activity

By Gary Gensler October 16, 2023 by renholding

Today [October 13], the Commission is voting to adopt rules to broaden the scope of short sale-related data available to regulators as well as the investing public. I am pleased to support this adoption because it will enhance the transparency …

SEC Commissioner Peirce Declines to Support Rule on Short Sale Disclosure

By Hester M. Peirce October 16, 2023 by renholding

In 2010, Congress directed the Commission to prescribe rules providing for the public disclosure of aggregate short sale position data on at least a monthly basis.[1] The final rule that we are considering today, however, goes well beyond what

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When Does Securities Litigation Affect Corporate Reputation?

By Dain C. Donelson, Antonis Kartapanis and Christopher G. Yust October 11, 2023 by renholding

Many academics, managers, lawyers, and others believe that nonmeritorious securities fraud class actions – those that will be dismissed or settled for nuisance amounts – damage corporate reputations. For example, litigation public relations experts claim that individuals adopt a “guilty …

SEC Chair Gensler Supports Final Rules on Beneficial Ownership

By Gary Gensler October 11, 2023 by renholding

Today [October 10], the Commission adopted final rules to shorten the deadlines by which beneficial owners of a company — those who own more than 5 percent of the company — must inform the public of their position. I am

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SEC Commissioner Peirce Declines to Support Final Rules on Beneficial Ownership

By Hester M. Peirce October 11, 2023 by renholding

Although better than the proposed rule,[1] the final beneficial ownership reporting rule continues to rest on flawed economics. Accordingly, I cannot support it.

The heart of the final rule is a shortening of the filing windows for Schedules 13D

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Should We Worry About Robo-Voting?

By John G. Matsusaka and Chong Shu October 10, 2023 by renholding

Robo-voting occurs when an investment fund mechanically follows the voting recommendations of its proxy adviser in corporate elections. The practice has become easier for funds with the development of online voting platforms that a proxy adviser can complete in advance …

Sullivan & Cromwell Discusses SEC Charges for Failure to Timely Report Transactions and Holdings

By Matthew B. Goodman, Robert W. Reeder III and Yiming Sun October 10, 2023 by renholding

On September 27, 2023, the U.S. Securities and Exchange Commission (“SEC”) announced charges against six public company insiders for failing to timely report information about their holdings and transactions in company securities. Five publicly traded companies were also charged with …

Davis Polk Discusses Recent SEC and CFTC Enforcement Actions

By Greg D. Andres, Robert A. Cohen, Martine M. Beamon, Stefani Johnson Myrick and Fuad Rana October 4, 2023 by renholding

In July and August 2023, the SEC filed 84 actions and the CFTC filed 16, against a combined total of 176 defendants and respondents. (These figures exclude follow-on actions, bars and suspensions.) The actions include public company disclosure and crypto …

Skadden Discusses Additional SEC Pay-Versus-Performance Compliance and Disclosure Interpretations

By Shalom D. Huber, Robin L. Caskey and Loren Koles October 2, 2023 by renholding

On September 27, 2023, the staff of the Securities and Exchange Commission’s (SEC’s) Division of Corporation Finance issued 10 new Compliance & Disclosure Interpretations (C&DIs) relating to the pay-versus-performance (PVP) disclosure rules adopted last year. This new set of C&DIs …

Arnold & Porter Discusses 2023 Annual Reporting and Proxy Season

By Rob Azarow, Paul Nabhan, Christian Schultz, Teresa Johnson and Jane Norberg September 28, 2023 by renholding

During 2023, the U.S. Securities and Exchange Commission (the SEC) continued its trend from 2022, actively engaging in regulatory rulemaking, providing disclosure guidance, and undertaking enforcement actions related to public disclosures and disclosure controls.

This Advisory provides a summary of …

Cleary Discusses Second Circuit Decision That Syndicated Loans Are Not Securities

By Duane McLaughlin, Jared Gerber, Sabrina Singer, Anirudh Sivaram and Allison Caramico September 27, 2023 by renholding

On August 24, 2023, the Second Circuit affirmed the dismissal of state-law securities claims in Kirschner v. JP Morgan Chase,[1] concluding that the plaintiff failed to adequately plead that the syndicated term loans at issue were securities. This …

Finfluencers and the Reasonable Retail Investor

By Sue S. Guan September 26, 2023 by renholding

Existing securities laws primarily target lies. However, financial influencers, or finfluencers – people or entities with outsized influence on investor decisions through social media – need not lie in order to influence their followers. This means that finfluencers can profit …

Skadden Discusses CFTC Charges That DeFi Developers Facilitated Off-Exchange Trading

By Alexander C. Drylewski, Stuart D. Levi, David Meister, Daniel Michael, Chad E. Silverman and Peter A. Varlan September 26, 2023 by renholding

On September 7, 2023, the Commodity Futures Trading Commission (CFTC) issued three enforcement settlement orders against developers of decentralized finance (DeFi) protocols.¹ The orders charge Opyn, Inc., Deridex, Inc., and ZeroEx, Inc. (0x) with illegally offering leveraged and margined …

Why Short Attacks May Compel a Company to Sue

By Joshua Mitts September 25, 2023 by renholding

In a recent post on the Harvard Law School Forum on Corporate Governance, three partners at Skadden, Arps, Slate, Meagher & Flom LLP give practical advice to companies in preparing for and responding to a short attack. With respect …

SEC Chair Gensler Speaks on Updates to the Names Rule

By Gary Gensler September 22, 2023 by renholding

Today [September 20], the Commission is considering final rules to update the Names Rule. I am pleased to support this rule adoption because it will help ensure that a fund’s portfolio matches a fund’s name. Such truth in advertising promotes

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Was the Exchange Act Redundant? The Questionable Legality of an SEC Commissioner’s Unicorn Reform Proposal

By Alexander Platt September 18, 2023 by renholding

The rise of private markets and the proliferation of “unicorns” (private startup companies valued at $1 billion or more) has diminished the SEC’s power and reach. Back in 2021, the agency signaled a plan to reassert itself by forcing unicorns …

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