SEC Chair Clayton issues statement on cryptocurrencies and ICOs: are all ICOs securities offerings?

To SEC Chair Jay Clayton, so far, it sure appears that way. Yesterday, Clayton issued a statement on cryptocurrencies and initial coin offerings, which warns that, of the ICOs that Clayton has seen promoted so far, “[b]y and large, the structures…involve the offer and sale of securities and directly implicate the securities registration requirements and other investor protection provisions of our federal securities laws.  Generally speaking, these laws provide that investors deserve to know what they are investing in and the relevant risks involved.”  This position is consistent with Clayton’s unscripted observation during his remarks at the 2017 PLI Securities Regulation Institute (see this PubCo post) that, other than pure cryptocurrency, he had yet to see an ICO that did not have some indicia of a securities offering. In his statement, he indicates that he has asked SEC Enforcement “to police this area vigorously.” 

Cybersecurity risk disclosure remains at relatively low levels, but for how long?

Even though, in the wake of recent events, cybersecurity is a very hot topic, only 38% of U.S. public companies cite cybersecurity as a risk factor in their annual and quarterly SEC filings, according to a recent study from Intelligize.  The study showed that, while only 426 public companies cited cybersecurity as a risk in 2012, that number grew to 1,662 in 2016.  However, so far in 2017, the number has been relatively flat at 1,680. But the question remains, how long will that continue?

NYSE proposes changes regarding delivery to NYSE of proxy materials; SEC approves NYSE restriction on timing of issuance of material news after NYSE close

Two changes—one proposed, one approved—in the NYSE Manual: first, the NYSE is proposing to modify its requirements with respect to delivery to the NYSE of hard copies of proxy materials. Second, the SEC has approved the NYSE’s proposal, as amended, related to a limitation on the issuance of material news in the period immediately after the NYSE close.

Boilerplate CAMs in auditor’s reports? That would be a bummer, man

In what were surely unprepared remarks to the American Institute of CPAs conference on SEC and PCAOB developments, as reported by Bloomberg BNA, SEC Chair Jay “the Dude” Clayton commented on the impact he expects the new form of auditor’s report could have on his mood: “‘If it results in quality, I’ll be happy….And if it results in boilerplate, I’ll be really bummed out.’”  

New guidance from Corp Fin related to adoption of new accounting standards

Corp Fin recently revised some of the guidance in its Financial Reporting Manual related to adoption of new accounting standards.  One revision relates to the adoption of a new accounting standard in the context of a significant acquisition, and the second relates to transition period accommodations for EGCs.  This new guidance could take on particular significance in the context of the new revenue recognition standard.

SCOTUS hears oral argument in Somers v. Digital Realty Trust: Dodd-Frank whistleblower statute “says what it says”

Yesterday, in addition to hearing oral argument regarding state court jurisdiction over ’33 Act class actions (see this PubCo post), SCOTUS also heard oral argument in a second case, Somers v. Digital Realty Trust.  This case addressed the split in the circuits regarding the application of the Dodd-Frank whistleblower anti-retaliation protections: do the protections apply regardless of whether the whistleblower blows the whistle all the way to the SEC or just reports internally to the company?   Here is a link to the transcript of the oral argument for Digital Realty, which is discussed below.