Deal Diary

On September 19, 2022, amendments to the Securities and Exchange Commission (SEC) rules governing proxy solicitations became effective. The amendments, proposed on November 17, 2021, seek to address concerns by investors and others that the current rules may impede and impair the timeliness and independence of proxy voting advice and subject proxy voting advice businesses (PVABs) to undue litigation risks and compliance costs.

Effective September 20, 2022, the Securities and Exchange Commission (SEC) increased the annual gross revenue threshold to qualify for emerging growth company (EGC) status from $1.07 billion to $1.235 billion.

In April 2022, the Financial Conduct Authority (the FCA) issued its final policy statement on diversity and inclusion (D&I) requirements for premium and standard listed issuers with the object of increasing transparency for investors on the diversity of boards and executive management. 

The U.S. Securities and Exchange Commission’s (SEC) Division of Examinations (the “Division”), on March 30, 2022, released its 2022 examination priorities (the “Division’s 2022 priorities”), highlighting the “annual publication of our examination priorities furthers the SEC’s mission and…provides investors and registrants transparency into those areas we believe bring heightened risks to investors, registrants, and the markets.” The Division’s 2022 priorities include five significant areas of focus: (i) private funds; (ii) environmental, social and governance (“ESG”) investing; (iii) standards of conduct, including Regulation Best Interest, fiduciary duty and Form CRS; (iv) information security and operational resiliency; and (v) emerging technologies and crypto-assets. This post focuses on examinations related to ESG investing.

Recent rulings underscore the attention boards of directors and management must continue to pay to the risks faced by companies across all sectors of the economy and their potential impact on business operations. Last year’s decision in In re Boeing Co. Derivative Litigation¹ only serves as the most recent reminder of the potential exposures (including personal liability) companies, boards of directors and management may face.

On December 15, 2021, the SEC proposed amendments regarding Rule 10b5-1 trading plans and share repurchase programs. The SEC proposed rules are intended to diminish information asymmetry between public companies and investors by closing perceived gaps in the current insider trading regime and increasing disclosure on share buybacks. If adopted, these rules could significantly impact the manner in which insiders manage transactions in public company securities and public companies conduct share repurchase programs.

On Thursday, November 4, 2021, proxy advisory firm Institutional Shareholder Services (ISS) launched an open comment period on 16 proposed policy changes. The request for comment categorized the proposed changes within five general topics: (i) Board Diversity; (ii) Board Accountability – Unequal Voting Rights; (iii) Board and Other Governance Structure Elections; (iv) Climate; and (v) Compensation. Chiefly focused on the impact to the U.S. benchmarks, each of these general topics are summarized below; however, this blog post focuses on ISS’s updates on climate issues.

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