Category: Securities
SCOTUS decides Omnicare: 6th Circuit applied incorrect standards in the context of liability under §11 for statements of opinion
by Cydney Posner Today, SCOTUS issued its opinion in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund. In the case, SCOTUS answers these questions: First, when can a statement of opinion be considered a “false statement of material fact”? That is, for purposes of §11, a “strict […]
White shares observations on shareholder activism, the shareholder proposal process and fee-shifting bylaws
by Cydney Posner Today, SEC Chair Mary Jo White spoke at Tulane’s Corporate Law Institute, sharing her observations on the current state of shareholder activism, the shareholder proposal process and fee-shifting bylaws. The common theme: her aversion to gamesmanship and close-minded, reflexive behavior on all sides, which, she believes, can […]
Is “tenure voting” a possible cure for “raging corporate activism”?
by Cydney Posner In “Seeking a Cure for Raging Corporate Activism,” published on March 17, 2015, in the WSJ, the author discusses a technique resurrected from the 1980s that some believe could, on reexamination, be “a bulwark against short-termers who roam the markets, looking to force buybacks or an untimely […]
Proxy Access: not a question of “if,” but “when”?
by Cydney Posner This article in the WSJ observes that there appears to be a major shift in the viability of proxy access, as a growing number of companies are adopting bylaw amendments or are expected to submit the matter to shareholder votes this proxy season. The article quotes NYC […]
Push has come to shove for some companies on proxy access
by Cydney Posner If you’ve been following the saga regarding shareholder proposals for proxy access this proxy season, you know that around 100 companies received proxy access proposals and that the staff of Corp Fin has refused to express its view on the application of the exclusion, Rule 14a-8(i)(9) (conflicting […]
SEC Enforcement tries to fix more “broken windows”
by Cydney Posner On Friday, the SEC charged eight officers, directors and major shareholders for failing to update their Schedule 13D stock ownership reports to reflect material changes in connection with several going-private transactions. According to the press release, each person or entity charged “took steps to advance undisclosed plans […]
Senate bill introduced to raise Rule 701 disclosure threshold
by Cydney Posner Senators Pat Toomey (R., PA) and Mark Warner (D., VA) have introduced Senate Bill 576, the ‘‘Encouraging Employee Ownership Act.’’ The bill would require the SEC, within 60 days after enactment, to raise the threshold in Section (e) of Rule 701, the exemption from registration for privately held […]
Will Congress revisit the conflict minerals rule?
by Cydney Posner According to a Bloomberg BNA report, a representative of the Chamber of Commerce, one of the plaintiffs in National Association of Manufacturers, Inc. v. SEC, the conflict minerals case currently pending in the DC Circuit, claims that the litigation “is sparking new interest by Congress in the requirements.” Don’t […]
In re Numoda Corporation Shareholders Litigation: Delaware court addresses the new Delaware ratification statutes
by Cydney Posner A recent Delaware opinion, In Re Numoda Corporation Shareholders Litigation, decided on January 30, 2015, appears to be the first opinion to resolve questions under the new Delaware statutes, Sections 204 and 205, which authorize ratification of defective corporate acts by the corporation and the Delaware courts, […]
House Republicans pressure SEC to end court battle over conflict minerals rule
by Cydney Posner According to this article from The Washington Post with Bloomberg, in February, House Financial Services Committee Chair Jeb Hensarling and three other House members (Scott Garrett of New Jersey, Bill Huizenga of Michigan, and Ed Royce of California) sent a letter to SEC Chair Mary Jo White urging […]
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