Category: Litigation
Ninth Circuit addresses SOX 304 clawback requirements and liability for Rule 13a-14 false certifications
by Cydney Posner A new case from the 9th Circuit, SEC v. Jensen, is the first circuit court case to confirm the SEC’s position that the “clawback” provisions of SOX 304 provide for a disgorgement remedy against CEOs and CFOs when the issuer has restated its financial statements as a […]
Study finds disclosure of “critical audit matters” may reduce legal exposure for auditors
by Cydney Posner When the PCAOB originally floated the idea of an expanded audit report in 2011, the proposal fueled quite a controversy. Supporters of the concept contended that the current form of the auditor’s report was just boilerplate that “tells investors little of substance about a company’s true condition,” while […]
No petition for cert in Natl Assoc. of Manufacturers v. SEC, the conflict minerals case
by Cydney Posner No reason to keep checking the SCOTUS website for the SEC’s cert petition in Natl Assoc. of Manufacturers v. SEC, the conflict minerals case. According to this letter from Attorney General Loretta Lynch to House Speaker Paul Ryan (courtesy of thecorporatecounsel.net blog), “[a]lthough the Commission defended the constitutionality of […]
In re Sanofi: 2d circuit considers misleading statements of opinion after Omnicare
by Cydney Posner In an early appellate decision applying Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, a three-judge panel of the 2d Circuit, on March 4, issued its opinion in In re Sanofi. The plaintiffs in that case had alleged that defendants’ material omissions regarding a drug candidate – […]
Court dismisses case to compel SEC to act on rulemaking petition for corporate political spending disclosure
by Cydney Posner As noted in Law360, a DC District Court has granted the SEC’s motion to dismiss a complaint filed to compel the SEC to act on a rulemaking petition regarding corporate political spending disclosure. Of course, as discussed in this PubCo post, a provision prohibiting the SEC from […]
Is a lot more at stake in the conflict minerals case than the conflict minerals disclosure rules?
by Cydney Posner An amicus brief filed in the conflict minerals case, National Association of Manufacturers, Inc. v. SEC, was submitted this week by a group of anti-smoking and other organizations dedicated to protecting public health: Truth Initiative, Public Health Law Center, National Association of County and City Health Officials, […]
Second Circuit defers to SEC interpretation of “whistleblower” for purposes of retaliation suit under Dodd-Frank
by Cydney Posner In Berman v. Neo@Ogilvy LLC, a three-judge panel of the Second Circuit reversed and remanded a decision of the SDNY, which had dismissed a claim for retaliation by a former employee on the basis that Dodd-Frank’s whistleblower protections apply only to employees discharged for reporting violations to […]
District Court compels SEC to provide “expedited schedule” for issuing Dodd-Frank resource extraction rule — will other rule proponents follow suit?
by Cydney Posner A U.S. District Court has handed a victory to Oxfam America in its efforts to compel the SEC to complete rulemaking on the Dodd-Frank mandate regarding resource extraction disclosures (Section 1504). Unless appealed, the decision almost puts the SEC in the vicinity of where it was in […]
Class action charges misrepresentation in policies and disclosures regarding slave labor in supply chain
by Cydney Posner As discussed in this Bloomberg article, Costco and some of its suppliers are facing class action litigation alleging that Costco misled consumers about the use of slave labor and human trafficking in its supply chain for the frozen shrimp it sells. Concerns regarding human trafficking and slave labor […]
Three-judge panel of D.C. Circuit again holds that mandatory disclosure requirement of conflict minerals rule violates First Amendment
by Cydney Posner In November 2014, the D.C. Circuit Court of Appeals granted the petitions of the SEC and Amnesty International for panel rehearing in connection with the conflict minerals case, National Association of Manufacturers, Inc. v. SEC. Today, a three-judge panel of the D.C. Circuit, by a vote of two […]
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