Cooley LLP (JD Supra United States)

2352 results for Cooley LLP (JD Supra United States)

  • Blog: Gensler plans to “freshen up” Rule 10b5-1

    Yesterday, in remarks before the WSJ’s CFO Network Summit, SEC Chair Gary Gensler scooped the Summit with news of plans to address issues he and others have identified in Rule 10b5-1 plans. Problems with 10b5-1 plans have long been recognized—including by former SEC Chair Jay Clayton—so it will be interesting to see if any proposal that emerges will find support among the Commissioners on both...

  • Blog: SEC removes Duhnke as PCAOB Chair

    On Friday, the SEC announced that it had “removed” William D. Duhnke III from the PCAOB and designated Duane M. DesParte to serve as Acting Chair, effective Friday. Duhnke has been serving as Chair since January 2018. The SEC also announced that it intends to seek candidates to fill all five board positions on the PCAOB. In the press release, SEC Chair Gary Gensler said that the “PCAOB has an...

  • Blog: Commissioner Roisman suggests ways to reduce the costs of ESG disclosure

    In remarks yesterday before the ESG Board Forum, Putting the Electric Cart before the Horse: Addressing Inevitable Costs of a New ESG Disclosure Regime, SEC Commissioner Elad Roisman weighed in with his views on mandatory prescriptive ESG requirements and the likely associated costs. As he has indicated before, he’s not really keen on the idea, particularly the environmental and social...

  • Blog: SEC to reconsider rules and guidance regarding proxy advisory firms

    Whether and how to regulate proxy advisory firms, such as ISS and Glass Lewis, has long been a contentious issue, with some arguing that their vote recommendations were plagued by conflicts of interest and often erroneous, while others saw no reason for regulation given that the clients of these firms were satisfied with their services. In September 2019, the SEC published in the Federal Register

  • Blog: The House hears about SPACs

    Congress now seems to be all over this SPAC phenomenon. Last week a subcommittee of the House Financial Services Committee held a hearing on “Going Public: SPACs, Direct Listings, Public Offerings, and the Need for Investor Protections.” What is the headline from the hearing? All the witnesses agreed that, to prevent regulatory arbitrage, all IPO vehicles, whether traditional IPOs or SPACs,...

  • Blog: SEC Commissioner Lee dispels myths about materiality

    Earlier this week, SEC Commissioner Allison Lee delivered keynote remarks at the 2021 ESG Disclosure Priorities Event hosted by the AICPA, the Chartered Institute of Management Accountants, SASB and the Center for Audit Quality. Her topic: “Myths and Misconceptions about ‘Materiality.’” In the context of the discussion about potential mandatory ESG disclosures, Lee observed, there has been a lot

  • Blog: Why event-driven securities litigation has become a thing—and a lucrative one too

    If Matt Levine has a mantra in his “Money Stuff” column on Bloomberg, it’s this: everything is securities fraud. “You know the basic idea,” he often says in his most acerbic voice...

  • Blog - Have Your Cake, and Closing Too: Invoking Prevention Doctrine, Delaware Chancery Court Grants Seller’s Request for Specific Performance in COVID-Related M&A Dispute

    Chancellor McCormick’s opinion in Snow Phipps Group, LLC, et al. v. KCake Acquisition, Inc., et al. (Del. Ch. April 30, 2021) is 125 pages long, but she helpfully digests the holding in a single sentence on page 3: “Chalking up a victory for deal certainty, this post-trial decision resolves all issues in favor of seller and orders the buyers to close on the purchase agreement.” In reaching this...

  • Blog: White House issues Executive Order on climate

    The White House has issued an Executive Order expressing its policy “to advance consistent, clear, intelligible, comparable, and accurate disclosure of climate-related financial risk… including both physical and transition risks.” The EO states that the “intensifying impacts of climate change present physical risk to assets, publicly traded securities, private investments, and companies—such as...

  • Alert: Santa Clara County Requires Employers to Determine Worker Vaccination Status by June 1, 2021

    On May 18, 2021, California’s Santa Clara County announced that it will be entering the yellow tier of California’s Blueprint for a Safer Economy – and issued a new Health Order – effective May 19. The Santa Clara County Public Health Department landing page links to the new Order, as well as an executive summary, FAQs and other resources.

  • Blog: House passes Insider Trading Prohibition Act—will it pass the Senate?

    On Tuesday, the Insider Trading Prohibition Act passed the house by a pretty big bipartisan majority—350 to 75. Currently, there is no explicit statutory prohibition on insider trading and prosecutors have relied on general fraud statutes to pursue charges. The bill would add to the Exchange Act a new Section 16A that would define insider trading and make it illegal. In an interview with Reuters,

  • Blog - Leadership survey: How prepared are leaders to face key business issues? Do executives think boards give good advice?

    While it’s certainly not yet in the rear-view mirror, as we start to see COVID-19 begin to fade as an all-consuming crisis for business—thank you science and scientists!—what are the next issues that corporate leaders must face and how ready are they to face them? Consultant Russell Reynolds Associates has just released its 2021 Global Leadership Monitor​, designed to track top business issues...

  • Blog: Is there a resurgence in the use of non-GAAP financial measures?

    In 2016 and early 2017, the SEC made a big push—through a series of staff oral admonitions and written guidance, as well as an enforcement action—to require issuers to be more transparent and more consistent in the use of non-GAAP financial measures and to avoid altogether non-GAAP measures that were misleading. In May 2016, the Corp Fin chief accountant, as reported in CFO.com, cautioned...

  • Alert: FTC Expects Board-Level Cybersecurity Oversight

    Federal Trade Commission (FTC) staff published a blog post that highlights increased cybersecurity threats and emphasizes the key role corporate boards play in a successful cybersecurity program: “Corporate boards: don’t underestimate your role in data security oversight.” Boards that are not actively considering cybersecurity risks should take notice.

  • Blog: Acting Corp Fin Director Coates says ESG disclosure requirements “overdue”

    As reported by Bloomberg, Acting Corp Fin Director John Coates told a webinar audience that mandatory ESG disclosures were “overdue,” and that the SEC was moving quickly on related rulemaking. In the webinar, sponsored by NYU’s Institute of Accounting Research and the Institute for Corporate Governance & Finance, Coates said that he expects the SEC to soon be in a position to review and consider

  • Blog: BlackRock uses its voting power to support environmental and social issues

    The outside pressure has been on. As reported by Bloomberg, “[e]nvironmental advocates in cities including New York, Miami, San Francisco, London and Zurich targeted BlackRock for a wave of protests in mid-April, holding up images of giant eyeballs to signal that ‘all eyes’ were on BlackRock’s voting decisions.” Of course, protests outside of the company’s offices by climate activists are...

  • Blog: Tackling the underrepresentation of women of color on boards

    With the passage of SB 826 in 2018, California became the first state to mandate board gender diversity (see this PubCo post). In 2020, the California Partners Project, which was founded by California’s current First Lady, released a progress report on women’s representation on boards of California public companies, tracking the changes in gender diversity on California boards since enactment of...

  • Blog: SEC to scrutinize company accounting for impact of climate

    In February, then-Acting SEC Chair Allison Lee directed the staff of Corp Fin, in connection with the disclosure review process, to “enhance its focus on climate-related disclosure in public company filings,” starting with the extent to which public companies address the topics identified in the interpretive guidance the staff issued regarding climate change in 2010. (See this PubCo post.) In...

  • Alert: Return to NY Offices Underscores Importance to Conduct Mandatory Annual Anti-Harassment Training

    The gradual reopening of society has created increased hopes of an imminent return to normalcy, including returning to the office. Meanwhile, as New York employers begin rolling out their return-to-office plans, there will be a foreseeable and significant uptick in employee social interactions inside and outside of the office, such as at company-sponsored happy hours and holiday events. We remind

  • Blog: Under Armour’s failure to disclose order “pull forwards” comes under fire at the SEC

    On Monday, the SEC announced settled charges against Under Armour, Inc., a manufacturer of sports apparel, for misleading investors by failing to disclose material information about its “revenue management practices.” According to the Order, Under Armour had established a reputation for consistent revenue growth that exceeded analysts’ consensus estimates. But when internal forecasts began to...

  • Blog: Not much data disclosed on human capital, according to new survey

    When, in August 2020, the SEC considered adopting a new requirement to discuss human capital as part of an overhaul of Regulation S-K, the debate centered largely on principles-based versus prescriptive regulation—a debate that continues to this day. In that instance, notwithstanding a rulemaking petition and clamor from numerous institutional and other investors for transparency regarding...

  • Alert: Second Circuit Rules Individuals Have Standing to Sue for ‘Increased Risk’ of Identity Theft

    Earlier this week, the United States Court of Appeals for the Second Circuit held that where personal information is disclosed without authorization, impacted individuals may have standing to sue if they can show an “increased risk” of identity theft or fraud, even if this hasn’t yet happened. The court, which had not before decided if plaintiffs could establish standing based on the risk of...

  • Blog: SEC charges eight companies for deficient Forms 12b-25

    At the end of last week, the SEC announced that it had filed settled charges against eight companies for failing to disclose in their Form 12b-25 filings (Form NT Notification of Late Filing) that their late filings of periodic reports were caused by an anticipated restatement or correction of prior financial reporting. The staff detected the violations through the use of data analytics in an...

  • Alert - AMG v. FTC: US Supreme Court Severely Limits FTC’s Ability to Seek Monetary Relief

    The US Supreme Court ruled last week that the Federal Trade Commission doesn’t have the authority to seek equitable monetary relief in federal court under Section 13(b) of the FTC Act in AMG Capital Management LLC v. FTC.

  • Blog: Is the SEC considering guidance on SPAC projections?

    Reuters is reporting—exclusively—that the SEC is contemplating issuing more guidance that would “rein in growth projections” made by listed SPACs and clarify when the PSLRA would be available to protect SPAC projections, “according to three people with knowledge of the discussions.” According to Reuters, the SEC guidance “would escalate its crackdown on the deal frenzy” in SPACs and could...

  • Alert: Supply Chain Finance and Trade Credit Insurance in Spotlight

    As struggling companies continue to look for liquidity amid the COVID-19 pandemic, many have turned to supply chain financing (SCF) solutions to shore up their balance sheets and to mitigate risk. SCF is a financial transaction in which a bank or third party provides funding to pay a company’s supplier of goods and services. This type of transaction has the potential to benefit all parties: the...

  • Blog: Russia’s treatment of Navalny could have implications for your disclosure obligations

    You might recall that the Iran Threat Reduction and Syria Human Rights Act added Section 13(r) to the Exchange Act, which requires public reporting companies that knowingly engaged (directly or through affiliates) in certain transactions or dealings with Iran to report those transactions or dealings in their periodic reports and through separate filings with the SEC. But some sections of the...

  • Blog: What role should the exchanges play in encouraging board diversity?

    Board diversity and how (and whether) to try to achieve it is a topic that has certainly appeared on a lot of corporate governance agendas in the last few years. Institutional investors have applied pressure on corporations, shareholders have submitted precatory proposals for shareholder votes, investment banks have insisted on diverse boards as preconditions for taking companies public, and...

  • Blog: Happy Earth Day!

    Climate Action 100+ reports that, last year, there were 22 climate-related weather disasters in the U.S. that “each caused more than $1 billion in damages—far and away a record. To investors, climate change poses not only physical risks of damage to assets, supply chains and infrastructure but also transitional risk if portfolio companies do not adjust rapidly enough as the economy decarbonizes...

  • Alert: Using a Professional Employer Organization? Check for Employment Practices Liability Insurance

    Professional employer organizations provide human resources solutions for small and mid-size businesses. In the US, PEOs serve more than 175,000 small and mid-sized businesses, which represents 15% of all US employers with 10 to 99 employees, according to the National Association of Professional Employer Organizations. In addition to handling human resources matters, payroll and employee benefits,

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