Month: August 2023
In Fifth Circuit oral argument, SEC faces challenge to preserve 2022 changes to proxy advisor rules
In December last year, the Federal District Court for the Western District of Texas issued an Order granting summary judgment to the SEC and Chair Gary Gensler and denying summary judgment to the National Association of Manufacturers and the Natural Gas Services Group in the litigation surrounding the SEC’s adoption in 2022 of amendments to the rules regarding proxy advisory firms, such as ISS and Glass Lewis. Those 2022 rules reversed some of the key controversial provisions governing proxy voting advice that were adopted by the SEC in July 2020 and favored by NAM. NAM’s complaint, filed in July last year, had asked that the 2022 rules be set aside under the Administrative Procedure Act and declared unlawful and void, and, in September, NAM filed its motion for summary judgment, characterizing the case as “a study in capricious agency action.” The District Court begged to differ, and NAM appealed. This week, a three-judge panel of the Fifth Circuit heard oral argument on NAM’s appeal. Let’s just say that the Court didn’t appear to be particularly sympathetic to the SEC’s case, with Judge Edith Jones mocking the SEC’s concern with the purported burdens on proxy advisors as “pearl-clutching.”
IAASB proposes new assurance standard for climate disclosures
A 2021 article in the WSJ about carbon emissions identified “[o]ne problem facing regulators and companies: Some of the most important and widely used data is hard to both measure and verify.” According to an academic cited in the article, the “measurement, target-setting, and management of Scope 3 is a mess.” As a result—and as the term “greenwashing” brings to mind—investors and other stakeholders are frequently apprehensive about the reliability of corporate disclosures regarding sustainability. One approach to address this concern is to obtain assurance to verify the data. However, the WSJ suggested that, based on data regarding verification of climate information provided on a voluntary basis, audits are a challenge. For one reason, verification of ESG data “is generally less rigorous than the external audits required for financial reporting.” Moreover, there is “no set standard for how climate data should be verified, or by whom.” That may be about to change—internationally, that is. Will the U.S. follow suit?
Compliance dates for SEC cybersecurity disclosure rules
As you know, the SEC adopted final rules on cybersecurity disclosure on July 26, with compliance dates tied to publication in the Federal Register. (See this PubCo post.) Those rules were published on August 4 with compliance dates spelled out in the published release.
FASB wants more disclosure about expenses
FASB is moving ahead with new requirements for more information about public company expenses, approaching the issue from two perspectives: disaggregation of income statement expenses and segment reporting. More specifically, this week FASB published a proposed Accounting Standards Update intended to provide investors with more decision-useful information about expenses on the income statement. According to the press release announcing the proposed ASU, investors have said that more detailed information about a company’s expenses “is critically important to understanding a company’s performance, assessing its prospects for future cash flows, and comparing its performance over time and with that of other companies.” In addition, last week, FASB made a tentative decision to go forward with new requirements for enhanced disclosure about segment expenses and other segment items, and directed the staff to draft a final ASU for vote by written ballot. FASB had previously explained that investors find segment information to be critically important to understanding a company’s different business activities, as well as its overall performance and potential future cash flows. Although financial statements do provide information about segment revenue and a measure of profit or loss, not much information is disclosed about segment expenses.
Nasdaq proposes listing rule changes related to reverse stock splits
Nasdaq has filed with the SEC a proposed rule change to establish listing standards related to notification and disclosure of reverse stock splits. According to Nasdaq, the volume of reverse splits has increased substantially from 94 in 2020 and 31 in 2021 to 164 reverse stock splits—just as of June 23, 2023. In most cases, Nasdaq observes, the purpose of the reverse splits is to comply with Nasdaq’s $1 minimum bid price requirement to remain on the Capital Market tier. In light of this increased volume, Nasdaq is proposing amendments to its listing rules to “enhance the ability for market participants to accurately process these events, and thereby maintain fair and orderly markets.” Failure to comply could result in a trading halt.
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