The Ticker

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.

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.

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. 

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.”

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.

This summer, the Dodd-Frank Act reached its five-year anniversary. The Act mandated a long list and wide range of SEC rulemaking to address issues that triggered the 2008 financial crisis.

On August 5, 2015, the SEC approved a rule to implement the Dodd-Frank Act mandate that public companies disclose the ratio of median pay of all employees to the principal executive officer (typically the CEO) total compensation.

A recent Delaware Supreme Court ruling suggests that companies should review their advance notice bylaw provisions and assess whether they are in line with best practices. In Hill International, Inc. v. Opportunity Partners L.P., the company’s disclosure in the prior year’s proxy statement that the next annual meeting would be held “on or about” a given date did not trigger its advance notice bylaw provision.

Not surprisingly, the effectiveness of a company’s ethics and compliance programs depends on leadership.

In the last few years, the SEC has been pursuing most of its enforcement actions through administrative proceedings, rather than filing charges in federal district court. The U.S. Chamber of Commerce recently criticized the practice and called for reform.