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Public Company Advisory (PCA)

Public Company Advisory

Our public company clients face continuously evolving regulatory requirements, legal obligations and corporate governance challenges and trends. We advise US and non-US public companies on their day-to-day affairs, crisis and other special situations and all aspects of their compliance with the US securities laws and the listing requirements of the major US exchanges.

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Current Issue

House Committee Approves Bills that Would Repeal Conflict Minerals and Mine Safety Disclosure Requirements

On November 15, 2017, the House Financial Services Committee (the “Committee”) approved two pieces of legislation that would repeal the conflict minerals and mine safety and health disclosure requirements promulgated under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the "Dodd-Frank Act")

SEC Releases Timely Guidance on Shareholder Proposals

On November 1, 2017, the staff (the "Staff") of the Division of Corporation Finance of the Securities and Exchange Commission (the "SEC") released Staff Legal Bulletin No. 14I (the "Guidance"), providing guidance on the excludability of certain shareholder proposals under the "ordinary business" and the "economic relevance" bases provided in Rule 14a-8 of the Securities Exchange Act of 1934 ("Rule 14a-8") and on certain other aspects of the shareholder proposal submission process.

ISS Issues Proposed Policy Changes for 2018 Proxy Season

On October 26, 2017, Institutional Shareholder Services ("ISS") issued draft proposed policy changes for the 2018 proxy season (the "Draft Changes"). The Draft Changes for US companies are grouped in three categories: director elections (non-employee director pay); gender pay gap proposals; and director elections (poison pills). If adopted, the changes will take effect for shareholder meetings on or after February 1, 2018. ISS is accepting comments via email through 5:00 p.m. EST on November 9, 2017.

SEC Approves PCAOB's New Audit Report Standard to Enhance the Relevance of the Auditor’s Report to Investors and Other Market Participants

On October 23, 2017, the Securities and Exchange Commission ("SEC") unanimously approved the Public Company Accounting Oversight Board's ("PCAOB") proposal to adopt a new auditing standard, AS 3101, The Auditor's Report on an Audit of Financial Statements When the Auditor Expresses an Unqualified Opinion, and related amendments to other auditing standards (collectively, the "New Standard").

SEC Proposes Amendments to Modernize and Simplify Disclosure Requirements in Regulation S-K

On October 11, 2017, the Securities and Exchange Commission (the "SEC") proposed technical amendments to modernize and simplify certain public company disclosure requirements in Regulation S-K and related rules and forms (the "Proposed Amendments"), which implement Section 72003 of the Fixing America's Surface Transportation Act (the "FAST Act") and are based on recommendations included in the SEC staff's report on modernization and simplification of Regulation S-K published on November 23, 2016 (the "Report").

The SEC's New Guidance Provides Additional Flexibility for Compliance With CEO Pay Ratio Disclosure

On September 21, 2017, the Securities and Exchange Commission ("SEC") issued an interpretive release and the staff of the Division of Corporation Finance (the "Staff") published separate guidance and revised Compliance and Disclosure Interpretations ("C&DIs") to assist companies in preparing the pay ratio disclosure required by the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"). Overall, the new interpretive guidance provides companies with additional flexibility in complying with the requirements, as well as reassurance that the SEC will not pursue enforcement action related to such disclosure as long as a company acts in good faith and has a reasonable basis for its disclosure.

No Payday for Objecting Stockholders as Delaware Supreme Court Reverses Appraisal Ruling

The Delaware Supreme Court recently reversed a Delaware Chancery Court's finding that a private equity buyer had underpaid in connection with its acquisition of payday lending firm DFC Global Corporation.

Conflict Minerals Update – SEC Releases Guidance Following District Court Decision

On April 3, 2017, the US District Court for the District of Columbia (the "Court") entered a final judgment in National Association of Manufacturers, et al. v. Securities and Exchange Commission, ruling that Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Rule 13p-1 under the Securities Exchange Act of 1934 (the "Exchange Act") and Form SD violate the First Amendment of the US Constitution to the extent that the statute and the rule require companies to report to the Securities and Exchange Commission (the "SEC") and state on their websites if any of their products "have not been found to be 'DRC conflict free.'"

Technical Amendments Under the JOBS Act Result in Changes to Cover Pages of Many Securities Act and Exchange Act Forms

On March 31, 2017, the Securities and Exchange Commission ("SEC") made a number of technical amendments to existing rules and certain Securities Act of 1933 ("Securities Act") and Securities Exchange Act of 1934 ("Exchange Act") forms to conform them to certain provisions of the Jumpstart Our Business Startups Act of 2012 ("JOBS Act") and related SEC guidance.

Certain Considerations Relating to Virtual Shareholder Meetings

Virtual annual shareholder meetings are gradually increasing year-over-year, but the absolute number is still small and investor resistance to the "virtual-only" format persists. Nevertheless, additional companies continue to switch to the virtual-only format every year, and many more are incorporating virtual components to supplement their in-person meetings.

Recent Regulatory Developments and the New US Presidential Administration's Actions Affecting Public Companies

There have been several recent developments and proposed initiatives related to deregulation impacting US public companies and foreign private issuers ("FPIs"). Below is a brief summary of regulatory changes that have been implemented and the current status of certain proposals aimed at changing or eliminating existing or pending regulations.

Delaware Supreme Court Affirms Energy Transfer’s Termination of Merger Agreement for Lack of Tax Opinion

Resolving a dispute surrounding one of the largest M&A deals of 2015, the Delaware Supreme Court affirmed the Delaware Chancery Court's decision allowing Energy Transfer Equity, L.P. to terminate its proposed acquisition of The Williams Companies, Inc. due to the inability of Energy Transfer's tax counsel to deliver a necessary tax opinion.

Reminders for Foreign Private Issuers for the 2017 Annual Reporting Season

This memorandum outlines certain considerations for foreign private issuers (FPIs) in preparation for the 2017 annual reporting season.

Reminders for US Public Companies for the 2017 Annual Reporting and Proxy Season

This memorandum outlines certain considerations for US public companies in preparation for the 2017 annual reporting and proxy season. Part I of this memorandum discusses new developments and practical action items for the 2017 reporting season; Part II provides a brief overview of recent corporate governance and regulatory developments and trends; and Part III includes a discussion of expected regulatory developments and pending rulemaking initiatives.

 

2016 Issue

"Golden Leash" Disclosure Rule

Delaware Court of Chancery Finds Accepting Tender

Non-GAAP Financial Measures

New Proposed Rules on Curbing Wall Street

DOL Issues Final Fiduciary Rule

SEC Takes Issue with Employee Confidentiality

 

2015 Issue

New Guidance On Exclusions Under Rule 14a-8

Delaware Supreme Court Upholds Rural/Metro Decision

SEC Adopts Final Rules on CEO Pay Ratio Disclosure

Delaware Corporation Law Amendments Address Fee-Shifting and Exclusive Jurisdiction Provisions

SEC Proposes Broadened Rules on Clawback of Incentive-Based Compensation

 

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