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?
Summarized below are some of the highlights of the 2017 PLI Securities Regulation Institute panel discussions with the SEC staff (Michele Anderson, Wesley Bricker, Karen Garnett, William Hinman, Mark Kronforst, Shelley Parratt, Ted Yu), as well as a number of former staffers and other commentators. Topics included the Congressional and SEC agendas, fresh insights into the shareholder proposal guidance, as well as expectations regarding cybersecurity, conflict minerals, pay ratio disclosure, waivers and many other topics.
Yesterday, the SEC approved the PCAOB’s proposed rules requiring changes to the auditor’s report, AS 3101, The Auditor’s Report on an Audit of Financial Statements When the Auditor Expresses an Unqualified Opinion, along with related amendments to other auditing standards. The new auditing standard for the auditor’s report, while retaining the usual pass/fail opinion, will require auditors to include a discussion of “critical audit matters,” that is, “matters communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the financial statements; and (2) involved especially challenging, subjective, or complex auditor judgment.” The new CAM disclosure requirement will apply (with some exceptions) to audits conducted under PCAOB standards, including audits of smaller reporting companies and non-accelerated filers (although at a later phase-in date). The SEC also determined that the new standard, other than the provisions related to CAMs, will apply to emerging growth companies. As Commissioner Kara Stein observed in her statement, the new “standard marks the first significant change to the auditor’s report in more than 70 years.”
This morning, the SEC voted to propose amendments to Reg S-K and related rules and forms based primarily on the staff’s recommendations in its Report to Congress on Modernization and Simplification of Regulation S-K (required by the FAST Act). (See this PubCo post.) That Report, in turn, was premised on the review that the SEC conducted as part of its Disclosure Effectiveness Initiative. (See this PubCo post and this PubCo post.) The proposal also includes a new approach intended to “streamline” the confidential treatment process. Although the rule proposal has not yet been posted, the staff indicated at the meeting that the proposal largely follows the recommendations in the Report and seeks to clarify ambiguous requirements, update or streamline the rules by eliminating duplication and outdated references, simplify the rules where possible and improve navigability through the use of technology. The SEC also voted to propose certain parallel amendments to investment company and investment adviser rules and forms. Here is the press release. Stay tuned for further details once the proposal has been posted (and digested).
In Senate testimony, SEC Chair offers insights into his thinking on a variety of issues before the SEC
In testimony last week before the Senate Committee on Banking, Housing and Urban Affairs, SEC Chair Jay Clayton gave us some insight into his thinking about a number of issues, including cybersecurity at the SEC, cybersecurity disclosure, the regulatory agenda, disclosure effectiveness, the shareholder proposal process, climate change disclosure, conflict minerals, compulsory arbitration provisions, stock buybacks, the decline in IPOs and overregulation (including some interesting sparring with Senator Warren). Whether any of the topics identified as problematic result in actual rulemaking—particularly in an administration with a deregulatory focus—is an open question.
This afternoon, the SEC announced that it had adopted interpretive guidance in connection with the pay-ratio disclosure requirement, which mandates public company disclosure of specified pay-ratio information, beginning with the upcoming 2018 proxy season. Generally, the guidance provides a more expansive reading of three topics: company reliance on reasonable estimates, the use of existing internal records to determine the median employee and non-U.S. employees, and the use of other recognized tests and criteria (such as published IRS guidance) to determine employee/independent contractor status. At the same time, Corp Fin issued separate guidance regarding the use of statistical sampling (to be addressed in a subsequent post) and updated CDIs on topics related to the new SEC guidance. For a more complete discussion of the pay-ratio rule, see our Cooley Alert, SEC Adopts Final Pay-Ratio Rule.
SEC hack provides occasion for Chair Clayton to revitalize 2011 Corp Fin disclosure guidance on cybersecurity risks and incidents
As you probably read in the papers (see, e.g., this article from the WSJ), SEC Chair Jay Clayton announced yesterday that, in 2016, the SEC’s EDGAR system was hacked and, in August 2017, the staff determined that the hack may have led to insider trading. The hackers took advantage of “a software vulnerability in the test filing component of our EDGAR system, which was patched promptly after discovery….” The SEC believes “the intrusion did not result in unauthorized access to personally identifiable information, jeopardize the operations of the Commission, or result in systemic risk. Our investigation of this matter is ongoing, however, and we are coordinating with appropriate authorities.” As part of his lengthy statement, Clayton addressed the cybersecurity considerations that the staff applies in the context of its review of public company disclosures.