This week we highlight a study by the EY Center for Board Matters, “Audit Committee Reporting to Shareholders in 2017.” EY reviewed audit committee-related proxy disclosures by Fortune 100 companies to examine trends in voluntary reporting and finds a continued increase in voluntary audit committee disclosures to shareholders.
On August 17, 2017, the Securities and Exchange Commission (SEC) Staff issued new Compliance and Disclosure Interpretations (C&DIs) that clarify the financial information that Emerging Growth Companies (EGCs) and non-EGCs may omit from their draft registration statements. As we previously blogged, beginning on July 10, 2017, the SEC began to accept voluntary draft registration statements from all issuers for nonpublic review (not just EG). While these latest C&DIs provide useful examples about what financial statements to include in a registration statement, they are consistent with the SEC’s prior announcement, on June 29, 2017, regarding the expanded draft registration statement processing procedures, which was supplemented on August 17, 2017.
This week we highlight Bloomberg BNA’s analysis “Corporate Cyber Risk Disclosures Jump Dramatically in 2017,” which examines SEC annual and quarterly filings from 2010 to June 30, 2017. The findings show that more public companies are citing cybersecurity as a risk in their financial disclosures in the first half of 2017 than in all of 2016, suggesting that board and C-suite fears over data breaches may be escalating.
New York Law Journal has published the article “‘Spoofing’: The SEC Calls It Manipulation, But Will Courts Agree?” written by Michael Asaro and Richard Williams Jr., partner and associate, respectively, in the litigation practice at Akin Gump.
This week we highlight two analyses, one by J.P. Morgan and the other by Ernst & Young, reviewing the 2017 proxy season. The reports address board diversity; gender equality; environmental, social and governance (ESG) issues; and the normalization of shareholder activism as high priorities and key trends for many investors and boards.
Last week, the Staff of the Securities and Exchange Commission (SEC) announced that, beginning on July 10, 2017, the SEC will accept voluntary draft registration submissions from all issuers for nonpublic review. This expanded nonpublic review will apply to initial registration statements filed under both the Securities Act and the Exchange Act, as well as to Securities Act registration statements filed within one year of the effective date of an issuer’s initial Securities Act registration statement or Exchange Act Section 12(b) registration statement. Currently, only Emerging Growth Companies (EGCs) are allowed to confidentially submit a draft registration statement for confidential, nonpublic review by the SEC Staff prior to public filing, and such review applies to only the Securities Act registration process. The SEC Staff notes that the expanded nonpublic review will not limit the process by which EGCs submit draft registration statements for confidential review promulgated under the 2012 Jumpstart Our Business Startups (JOBS) Act, as subsequently modified by the 2015 Fixing America’s Surface Transportation (FAST) Act.
This week we highlight Professor John Coffee Jr.’s article “Hobson’s CHOICE: The Financial CHOICE Act of 2017 and the Future of SEC Administrative Enforcement”, analyzing the Financial CHOICE Act and in particular its impact on SEC enforcement. This post was published in the Columbia law school’s blog on corporations and the capital markets.
This week, the Supreme Court in Kokesh v. SEC unanimously held that the Securities and Exchange Commission’s (SEC) equitable disgorgement remedy is subject to a five-year statute of limitations because it is a “penalty” within the meaning of 28 U.S.C. § 2462, which governs “an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture.” Before Kokesh, some circuits had held that the SEC could obtain disgorgement of the entire amount of the ill-gotten gains or losses avoided, even those that extended well beyond the five-year statute of limitations associated with most federal securities laws. Kokesh clarifies that both civil penalties and disgorgement are subject to the same five-year limitations period.