Practice Area Blogs & Digests

Materiality is a key element of the U.S. public company disclosure framework, but materiality is a subjective legal standard with no “bright line” definition.

The Court of Justice of the European Union effectively invalidated the E.U. – U.S. “Safe Harbor” program in a decision released on Tuesday.

The SEC recently proposed rules to revamp its procedures for administrative proceedings, allowing defendants to take depositions and providing defendants additional time to respond. The proposals address some of the recent challenges by defendants to the fairness and constitutionality of the SEC administrative forum.

The SEC’s Office of Compliance Inspections and Examinations announced that it will boost its review of cybersecurity measures at registered broker-dealers and investment advisers and has outlined the information that it considers relevant to its assessments. The OCIE staff will focus on key topics including governance and risk assessment, access rights and controls, data loss prevention, vendor management, training and incident response.

The SEC has initiated a review of Regulation S-X as part of its ongoing review of disclosure effectiveness. At this time, the SEC is seeking comments on the requirements for the form and content of financial disclosures that companies must file with the SEC about acquired businesses, affiliated entities and guarantors.

The SEC’s Advisory Committee on Small and Emerging Companies met on September 23, 2015. The Committee made several recommendations, including revising the definition of “smaller reporting company” to include companies with a public float up to $250 million and affording additional disclosure accommodations to such companies.

When most directors hear the words “fiduciary duty,” a number of obvious areas come to mind: accounting practices, executive compensation and stock trading, to name a few. Now it is time to add one more to the list: cybersecurity.

The SEC recently provided guidance on how delinquent filers can come back into compliance without filing all of their missed Exchange Act reports. The process involves a catch-up filing of a Form 10-K for the most recently completed fiscal year with “all material information that would have been included in those filings.”

The SEC staff recently issued new interpretive guidance on the general solicitation prohibition for exempt offerings under Regulation D. The guidance suggests some additional flexibility in the types of communications and activities permitted. 

According to Fortune, “A sea change is under way in the governance of America’s public companies.” To be prepared for a potential battle, boards should understand the activist environment and industry dynamics and assess their company’s defense strategies.