Nonfinancial Risk Disclosure and the Costs of Private Ordering

By Virginia Harper Ho January 22, 2018 by renholding

2017 was a year of major developments that are changing how companies disclose nonfinancial environmental, social, and governance (ESG) risk to investors. In January, regulations implementing the European Union’s 2014 Nonfinancial Reporting Directive took effect for certain large companies operating …

Poetic Expansions of Insider Trading Liability

By John P. Anderson January 19, 2018 by renholding

The courts have consistently held since the Supreme Court decided Dirks v. SEC in 1983[1] that tipper-tippee insider trading liability requires proof that the tipper personally benefited from the tip.

This personal benefit test can pose significant challenges to …

K&L Gates Discusses the SEC’s TPG Settlement and Approach to Private Equity Fees

By Michael S. Caccese, Michael W. McGrath, Kenneth Holston and Matthew T. Hevert January 18, 2018 by charlesbluesky

On December 21, 2017 the U.S. Securities and Exchange Commission (the “SEC”) published a settlement order[1] with TPG Capital Advisors, LLC (“TPG”) arising from insufficient disclosure regarding the acceleration of monitoring fees paid by portfolio companies owned by private …

SEC Chair’s Remarks at Ceremonial Swearing In of New Commissioners Jackson and Peirce

By Jay Clayton January 17, 2018 by renholding

Good Morning.

I hope that everyone had a very nice weekend and enjoyed the holiday on which we commemorate the life and contributions of Dr. Martin Luther King, Jr.

I note that this August will be the 55^th anniversary

…

The Spotify Listing: Can an “Underwriter-less” IPO Attract Other Unicorns?

By John C. Coffee, Jr. January 16, 2018 by renholding

Press reports indicate that Spotify, the music streaming company, is planning an initial public offering in March or April of this year, and that it plans to use a novel “direct listing” approach that has not previously been used at …

SEC Chair Clayton Talks Fixed Income Markets

By Jay Clayton January 12, 2018 by renholding

I am delighted to welcome all of you to the inaugural meeting of the Fixed Income Market Structure Advisory Committee, or “FIMSAC” as many of us like to call it.[1] This is a significant day for the Commission. There

…

Wachtell Offers 2018 Checklist for Cross-Border M&A Involving U.S. Targets

By Adam O. Emmerich and Robin Panovka January 10, 2018 by renholding

Global M&A accelerated in the fourth quarter of 2017, driven in part by tech expansion and strong economies in several key markets, and there are many signals pointing to a continued strong pace of transactions, including in the U.S. Overall …

From Texas Gulf Sulphur to Chiarella: A Tale of Two Duties

By Donald C. Langevoort January 8, 2018 by renholding

The Second Circuit’s en banc decision in SEC v. Texas Gulf Sulphur Corp.[1] (“TGS”) is approaching its 50th anniversary, and it’s still well-known for several important holdings. Perhaps the most celebrated (or condemned) accepted the SEC’s argument …

Gibson Dunn Discusses SEC Guidance on How the New Tax Law Affects Disclosure and Accounting

By Ronald O. Mueller, Elizabeth Ising, Michael Scanlon, Brian Lane and Andrew Fabens January 8, 2018 by renholding

On December 22, 2017, the Securities and Exchange Commission’s Office of the Chief Accountant and Division of Corporation Finance (“Staff”) issued important guidance that provides significant relief and helpful answers on some of the accounting and disclosure issues raised by …

How Effective Is the SEC in Identifying Financial Reporting Errors?

By Matthew Kubic December 22, 2017 by renholding

The Securities and Exchange Commission (SEC) Division of Corporate Finance (DCF) reviews and regulates information in public filings to “deter fraud and facilitate investor access to information necessary to make informed investment decisions.”

Commentators criticize the SEC for …

Skadden Discusses Trends in M&A Disclosure Litigation

By Edward B. Micheletti, Jenness E. Parker and Bonnie W. David December 18, 2017 by charlesbluesky

Over the past two years, the deal litigation landscape has changed dramatically. In early 2016, the Delaware Court of Chancery announced a new rule for evaluating disclosure-based settlements in deal litigation — the “plainly material” standard — and expressed a …

Sheppard Mullin Discusses SEC’s Streamlined Enforcement Agenda

By Jeff Kern and Kate Ross December 14, 2017 by charlesbluesky

One of the most eye-catching items in the recently released 2017 Annual Report of the Enforcement Division of the Securities and Exchange Commission (SEC or the Commission) is the significant decline in enforcement activity from 2017. The report, issued on …

SEC Chair Talks Cryptocurrencies and Initial Coin Offerings

By Jay Clayton December 12, 2017 by renholding

The world’s social media platforms and financial markets are abuzz about cryptocurrencies and “initial coin offerings” (ICOs). There are tales of fortunes made and dreamed to be made. We are hearing the familiar refrain, “this time is different.”…

Davis Polk Discusses Solicitor General’s Change of Heart on SEC Judges

By Michael Flynn, Amelia Starr, Linda Chatman Thomsen and Paul Nathanson December 11, 2017 by renholding

On November 29, 2017, the Solicitor General filed a brief in the Supreme Court on behalf of the Securities and Exchange Commission (“SEC”) reversing the agency’s position and arguing that SEC administrative law judges (“ALJs”) have been unconstitutionally appointed to …

Debevoise & Plimpton Discusses Developments in the Enforcement of Token Sales

By Morgan J. Hayes, Steven J. Slutzky, Kevin R. Grondahl, Taylor Lindman and Naeha Prakash November 30, 2017 by Carly Goeman

Securities and Exchange Commission (“SEC”) Chairman Jay Clayton recently discussed the uncertainties surrounding token offerings and other forms of distributed ledger-based financing.^[1] Mr. Clayton cautioned that the lack of information regarding online platforms that list and trade virtual coins …

How Missing SEC Filing Deadlines Affects a Company’s Stock Value

By Eli Bartov and Yaniv Konchitchki November 27, 2017 by renholding

Investors, hedge funds, regulators, banks, and attorneys want to know: What really happens when a company misses a regulatory deadline? In a new paper, we offer theory and quantitative analysis of the consequences of missing U.S. Securities and Exchange Commission …

King & Spalding Discusses the Fading of Home Field Advantage for SEC Litigators

By William F. Johnson and Katie Barry November 16, 2017 by charlesbluesky

As the season changes to fall, and baseball playoffs and football dominate sports headlines, the home field advantage has proven important once again. But in the regulatory litigation game, it appears that even a home field advantage cannot help the …

SEC Chair Clayton Talks SEC and Market Transparency

By Jay Clayton November 9, 2017 by renholding

Thank you, Keith [Higgins], for that gracious introduction.[1] Let me return the sentiment. Keith – you are a member of an esteemed group of Division Directors, some of whom are here today, who have served the Commission and, most …

What Do Corporate Insiders Do with Newly Vested Equity?

By Erik Johannesson and Seil Kim November 8, 2017 by renholding

In a new study, we examine restricted-stock vesting events, through which directors and high-level executives (“insiders”) receive stock but face fewer reporting requirements and selling restrictions than if the stock had been purchased on the open market. Using a detailed …

PwC Discusses SEC’s Increased Scrutiny of Robo-Advisers

By Dan Ryan, Julien Courbe, Adam Gilbert, Mike Alix and Roberto Rodriguez November 8, 2017 by renholding

Earlier this year, the Securities and Exchange Commission (SEC) issued guidance regarding “robo-advisers,” automated investment advice tools accessed via web-based or mobile platforms with minimal human interaction.¹ The guidance is an important reminder to the industry that robo-advisers are …

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