Here comes T+1
In 2023, the SEC adopted a number of new rule amendments intended to reduce risks in the clearance and settlement processes, including, significantly, a change that will reduce the standard settlement cycle for most broker-dealer transactions in securities from T+2 to T+1, that is, from two business days after the trade date to one business day. Among other things, the rule changes also shorten the settlement cycle for firm commitment public offerings priced after 4:30 p.m. Eastern Time from T+4 to T+2, unless the parties expressly agree otherwise at the time of the transaction. (See this PubCo post.) According to the press release issued at the time, the final rule was “designed to benefit investors and reduce the credit, market, and liquidity risks in securities transactions faced by market participants.” The compliance date for the rule is now upon us—May 28, 2024. Yep, that’s right after this Memorial Day holiday.
Statement of Corp Fin Director on reporting cybersecurity incidents on Form 8-K
Yesterday, Corp Fin Director Erik Gerding issued a statement designed to clarify the use of Form 8-K Item 1.05 versus Form 8-K Item 8.01 when reporting cybersecurity incidents. Sounds like some of us might be doing it incorrectly—or at least sub-optimally—potentially resulting in investor confusion. Gerding’s statement is designed to set us straight. He also offers a little guidance about making materiality determinations regarding cybersecurity incidents.
Munter and Gerding discuss the need for additional disclosures under IFRS 19
The director of Corp Fin, Erik Gerding, and the SEC Chief Accountant, Paul Munter, have issued a new “Statement on the Application of IFRS 19, Subsidiaries without Public Accountability: Disclosures, in Filings with the SEC.” IFRS 19 permits reporting company subsidiaries “that do not have public accountability” to provide reduced disclosures […]
Professor Coffee tackles the “shadow trading” theory
Here is a great article—no surprise considering its author, Columbia Law Professor John Coffee—that practically gives the last rites to the “shadow trading” theory recently accepted by a federal district court (see this PubCo post) and a jury (see this PubCo post) in SEC v. Panuwat. If, that is, the theory ever reaches the Supreme Court. In Panuwat, the jury in a federal district court in California determined that Matthew Panuwat was civilly liable for insider trading on a set of highly unusual facts under the misappropriation theory—misappropriation of confidential information used to trade in securities in breach of a duty to the source of the information. According to Coffee, prior to Panuwat, cases involving the misappropriation theory “seem to have involved conduct by the defendant that caused ‘likely harm’ to the shareholders of the source of the information.” But not so in Panuwat. Rather than a fiduciary obligation, he suggests, perhaps the duty that Panuwat breached was really a contractual duty owed to his employer? And, in that case, should the SEC be the party enforcing it? His arguments may be highly controversial—certainly the SEC would disagree—but thought-provoking nonetheless and definitely worth a read.
SEC Chief Accountant issues statement on tone at the top
In this statement, SEC Chief Accountant Paul Munter discusses the importance of setting the tone at the top. According to Munter, “academic research has ‘long stressed the crucial role that tone at the top, set by leadership, plays in influencing firm culture and how it is ultimately reflected in the actions and behaviors of [auditors].’ The tone at the top of an audit firm determines whether the culture is focused on delivering high-quality audits or is a profit-center chasing the short-term bottom line, and whether ‘top management extols the important role audits play in the capital markets’ or acts as if audits are little more than compliance ‘commodities.’” Although he talks in terms of auditors, some of Munter’s recommendations may prove useful for companies in establishing their own ethics environments and tone at the top.
Dubious en banc Fifth Circuit hears oral argument on Nasdaq board diversity rules
In August 2021, the SEC approved a Nasdaq proposal for new listing rules regarding board diversity and disclosure, accompanied by a proposal to provide free access to a board recruiting service. The new listing rules adopted a “comply or explain” mandate for board diversity for most listed companies and required companies listed on Nasdaq’s U.S. exchange to publicly disclose “consistent, transparent diversity statistics” regarding the composition of their boards. (See this PubCo post.) It didn’t take long for a court challenge to these rules to materialize: the Alliance for Fair Board Recruitment and, later, the National Center for Public Policy Research petitioned the Fifth Circuit Court of Appeals—the Alliance has its principal place of business in Texas—for review of the SEC’s final order approving the Nasdaq rule. (See this PubCo post and this PubCo post) In October 2023, a three-judge panel of the Fifth Circuit denied those petitions, in effect upholding Nasdaq’s board diversity listing rules. Given that, by repute, the Fifth Circuit is the circuit of choice for advocates of conservative causes, the decision to deny the petition may have taken some by surprise—unless, that is, they were aware, as discussed in the WSJ and Reuters, that the three judges on this panel happened to all be appointed by Democrats. Petitioners then filed a petition requesting a rehearing en banc by the Fifth Circuit, where Republican presidents have appointed 12 of the 16 active judges. (See this PubCo post.) Not that politics has anything to do with it, of course. That petition for rehearing en banc was granted, vacating the opinion of the lower court. Yesterday, oral argument was heard. Let’s just say that, while some points were made in support of the rule, the discussion seemed to be dominated by rule skeptics. But the feud between Drake and Kendrick Lamar did figure in the discussion. Some highlights below.
Cooley Alert: EU Adopts Mandatory Rules on Corporate Sustainability Due Diligence
In late April, the European Parliament voted to adopt the Corporate Sustainability Due Diligence Directive, which will apply to EU companies and to non-EU companies with activities in the EU that meet specified thresholds. A discussed in this new Cooley Alert, EU Adopts Mandatory Rules on Corporate Sustainability Due Diligence That Will Apply to Many US Companies, from Cooley’s International ESG and Sustainability Advisory team, the CSDDD could turn out to be a “heavy lift” for many in-scope companies: the new law will mandate, for the first time, comprehensive “human rights and environmental due diligence obligations, with significant financial penalties and civil liability for companies that do not fully comply,” as well as new requirements for companies “to adopt and put into effect a climate transition plan” and “to report on their due diligence processes.” As the Alert observes, these requirements “reframe existing international soft laws”—UN Guiding Principles and OECD guidelines—as “mandatory obligations.”
Is ESG a “must have” only in boom-times?
Not so long ago, zeal for corporate action on ESG was skyrocketing. Now? Not so much. What happened? Many have attributed the decline in appetite for ESG to the politicization of ESG and particularly to ESG backlash. This paper from the Rock Center for Corporate governance at Stanford has another idea. Has “ESG enthusiasm” reached its expiration date or, as the paper posits, is it like an alligator Birkin bag, just a luxury—something to pursue only when you’re “feeling flush”? In economics, the authors explain, demand for most items declines as prices increase. Not so with luxury goods, where “a high price tag stimulates demand in part because of the social benefits the purchaser receives by signaling to others their ability to afford it.” Demand for luxury goods often rises and falls with the economy; when times are prosperous, demand for luxury goods increases and when money is tight, demand falls. In that light, a “case can be made,” the authors contend, “that ESG is a luxury good.”
NYSE proposes trading halt in the event of reverse stock split
In 2023, as a corollary to revised listing standards related to notification and disclosure of reverse stock splits, Nasdaq adopted a rule change providing for a new regulatory halt procedure specific to the pre-market trading and opening of a Nasdaq-listed security undergoing a reverse stock split. Pointing to an increased volume of reverse splits, Nasdaq believed that the proposed amendment would help to better detect errors that might result from “market participants’ processing of the reverse stock split, including incorrect adjustment or entry of orders” before trading in the stock begins. (See this PubCo post.) Although, according to the NYSE, it has not experienced the same increased volume of reverse stock splits, it has now proposed to follow suit by amending Rule 123D (Halts in Trading) to “set forth specific requirements for halting and resuming trading in a security that is subject to a reverse stock split.” The proposed rule change has become effective under Rule 19b-4(f)(6).
You must be logged in to post a comment.