SCOTUS hears Omnicare: when can a statement of opinion be actionable as a “false statement of material fact”?
by Cydney Posner Yesterday, SCOTUS heard oral argument in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund. The case seeks to answer this question: when can a statement of opinion be actionable as a “false statement of material fact”? That is, for purposes of Section 11, a “strict […]
Study shows whistleblower complaints lead to increased penalties and likelihood of enforcement
by Cydney Posner An academic study, first reported by the WSJ, concludes that, in regulatory enforcement actions brought by the SEC and DOJ alleging financial misrepresentation, employee whistleblowers have a consequential impact on regulatory outcomes, increasing the size of penalties, length of prison sentences and duration of the actions. In addition, […]
SEC to issue concept release regarding audit committees
by Cydney Posner Compliance Week reports that SEC Chair Mary Jo White, speaking before the Investor Advisory Group of the PCAOB, said that the SEC plans to Issue a concept release in early 2015 “exploring possible avenues for elevating the work of public company audit committees.” The release is expected to address many […]
Director of SEC whistleblower office encourages staff to find whistleblower retaliation cases
by Cydney Posner According to Law360, the director of the SEC’s whistleblower office, Sean McKessy, is exhorting the staff of that office to set a high priority on cases involving employer retaliation for whistleblower complaints. During an interview, McKessy “said his office was actively looking for cases to bring against […]
Will the SEC intercede in the battle over fee-shifting bylaws?
“The first trickle through a leak in the dam” that eventually causes the dam to collapse is how Professor John Coffee characterized the adoption of fee-shifting bylaw or charter provisions by 24 companies since May of this year. The “dam” here is the practice of private enforcement, as a supplement […]
NYSE to biotechs: welcome on board! NYSE loosens initial financial listing standards
by Cydney Posner On September 19, 2014, the NYSE filed with the SEC proposed amendments to Section 102.01C of the NYSE Listed Company Manual to adopt a new initial financial listing standard for operating companies based on market cap and to eliminate all of the current initial listing financial standards […]
Corp Fin Director provides some insights into the direction of the SEC “Disclosure Effectiveness Initiative”
by Cydney Posner A few days ago, Corp Fin director, Keith Higgins, gave a speech, “Shaping Company Disclosure for the 21st Century” before the George A. Leet Business Law Symposium at Case Western Reserve University School of Law, in which he discussed some of the SEC’s considerations in its “Disclosure […]
SEC staff issues CDI regarding use of the internet in connection with intrastate offerings — how feasible is it?
by Cydney Posner The SEC staff has posted another new CDI regarding internet communications, this one advising how issuers may conduct intrastate offerings under Rule 147 and still use the internet to communicate offers. The question is whether an issuer can use its website or social media to offer securities […]
Has the PCAOB finally reached a compromise on naming audit engagement partners?
by Cydney Posner The saga of the PCAOB and its proposals to require identification of the audit engagement partner continues. Compliance Week reports, based on a newly published PCAOB standard-setting agenda, that the PCAOB is now considering issuance of a supplemental request for comment in connection with yet another proposed compromise […]
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