We have all watched with anguish and trepidation the profound horror inflicted on Ukraine—transfixed by the brilliant and courageous fight of the Ukrainian people. That fight is also being pursued in much smaller ways, even through action at the SEC. The Ukrainian-American Bar Association, a former Ukrainian finance minister and a U.S. charity focused on Ukraine have just filed a rulemaking petition with the SEC, requesting that the SEC enact a rule requiring issuers to disclose their business dealings in and with the Russian Federation and the Republic of Belarus. Whether or not the SEC considers or accedes to the request remains to be seen, but let’s hope that Ukraine’s victory is so swift that this rulemaking becomes entirely unnecessary.
Yesterday, in recognition of the widespread use of electronic signatures, the SEC adopted rules and amendments to permit the use of electronic signatures in signature “authentication documents” required under Reg S-T in connection with electronic SEC filings. In addition, the SEC adopted corresponding revisions to allow the use of electronic signatures for certain other filings. (Separately, the SEC also amended the Rules of Practice to require electronic filing and service of documents in the SEC’s administrative proceedings, not covered in this post.) The new rules were adopted following submission of an incredibly persuasive rulemaking petition from three Silicon Valley law firms—Cooley being one—which was supported in correspondence from almost 100 public companies. The changes will become effective upon publication in the Federal Register.
If Matt Levine has a mantra in his “Money Stuff” column on Bloomberg, it’s this: everything is securities fraud. “You know the basic idea,” he often says in his most acerbic voice,
“A company does something bad, or something bad happens to it. Its stock price goes down, because of the bad thing. Shareholders sue: Doing the bad thing and not immediately telling shareholders about it, the shareholders say, is securities fraud. Even if the company does immediately tell shareholders about the bad thing, which is not particularly common, the shareholders might sue, claiming that the company failed to disclose the conditions and vulnerabilities that allowed the bad thing to happen. And so contributing to global warming is securities fraud, and sexual harassment by executives is securities fraud, and customer data breaches are securities fraud, and mistreating killer whales is securities fraud, and whatever else you’ve got. Securities fraud is a universal regulatory regime; anything bad that is done by or happens to a public company is also securities fraud, and it is often easier to punish the bad thing as securities fraud than it is to regulate it directly.” (Money Stuff, 6/26/19)
In this rulemaking petition filed by the U.S. Chamber Institute for Legal Reform and the Center for Capital Markets Competitiveness of the U.S. Chamber of Commerce, petitioners ask the SEC to take on one aspect of this type of securities litigation—event-driven securities litigation arising out of the COVID-19 pandemic. Will the SEC take action?
As you know, there has been a fairly sustained clamor for the SEC to impose a requirement for climate change and sustainability disclosure. For example, in May, the SEC’s Investor Advisory Committee recommended that the SEC “set the framework” for issuers to report on material environmental, social and governance information, concluding that “the time has come for the SEC to address this issue.” (See this PubCo post.) However, SEC Chair Jay Clayton and others at the SEC have been fairly vocal about their reluctance to impose a prescriptive sustainability disclosure requirement beyond principles-based materiality. But what about a narrower request? A mandate for just a single piece of information? This rulemaking petition filed by Impax Asset Management LLC, investment adviser to Pax World Funds, a “specialist asset manager investing in the transition to a more sustainable economy,” requests that the SEC “require that companies identify the specific locations of their significant assets, so that investors, analysts and financial markets can do a better job assessing the physical risks companies face related to climate change.”
Three Silicon Valley firms, Cooley being one, have submitted a rulemaking petition to the SEC asking the SEC to amend Rules 11 and 302 of Reg S-T to allow the use of electronic signatures in SEC filings. Although the staff has granted some flexibility in connection with retention of manual signatures in its Statement Regarding Rule 302(b) of Regulation S-T in Light of COVID-19 Concerns, the petition contends that, given current health and safety requirements, “obtaining and retaining manual signatures in compliance with the Staff Statement remains a significant logistical burden.”
Biotech files rulemaking petition for pilot program mandating public disclosure of short-sale positions
A rulemaking petition has been submitted to the SEC by a biopharmaceutical company that is “developing and marketing regenerative and therapeutic biologics.” The petition requests that the SEC promulgate rules to establish a pilot program that would mandate “periodic public disclosure of short-sale positions in securities of biopharmaceutical companies by investment advisers.” Will the SEC take action on the request in the petition?
Notwithstanding the deregulatory emphasis of the current administration, two campaigns are currently being waged to convince the SEC to adopt new regulations mandating more disclosure—one related to human capital management and the other related to a frequent target, corporate political spending. Are these just pipe dreams? Is it time for a reality check? Or might there be some basis for believing that this SEC might act on these requests?
CPA-Zicklin Index for 2016 shows companies increase disclosure, oversight and restrictions regarding corporate political spending
by Cydney Posner In light of our proximity to election day — finally — it seemed like a good time to take a look at the CPA-Zicklin Index of Political Disclosure and Accountability, just released for 2016, which annually evaluates corporate practices and disclosure regarding political spending. In a record-breaking year […]
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 […]
by Cydney Posner With election season upon us — after all, the election is only, well, a year and two months away – it’s time to renew the controversy over political spending disclosure. As you may recall, in 2011, a rulemaking petition was filed with the SEC by a committee of […]