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Hillary H. Holmes

Hillary H. Holmes

Partner, Dallas

[email protected]

+1 346.718.6602

Hillary Holmes is co-chair of the firm’s Capital Markets practice group and a member of the firm’s Securities Regulation & Corporate Governance, Mergers & Acquisitions, ESG, and Energy & Infrastructure practice groups. Hillary serves as co-partner-in-charge of the Houston office and as a member of the firm’s Executive Committee.

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Updated Summary of Director Education Opportunities Now Available

April 15, 2025 | Posted by Hillary H. Holmes; Lori Zyskowski; Ronald O. Mueller; Elizabeth A. Ising Topic(s): Audit Committee; Corporate Governance; ESG; IPOs; Securities Regulation; Shareholder Proposals

Gibson Dunn’s summary of director education opportunities has been updated as of April 2025. A copy is available at this link. Boards of Directors of public and private companies find this a useful resource as they look for high quality education opportunities.

This quarter’s update to the summary of director education opportunities includes a number of new opportunities as well as updates to the programs offered by organizations that have been included in our prior updates. Some of the new opportunities are available for both public and private companies’ boards.

Thank you to associates Jason Ferrari and To Nhu Huynh from our Houston office for their assistance with this quarter’s update.

Additional Helpful Updates to SEC’s S-3 Registration and Foreign Private Issuer C&DIs

March 31, 2025 | Posted by Hillary H. Holmes; Andrew L. Fabens; Peter Wardle Topic(s): Capital Markets; Corporate Governance; Disclosure; Securities Regulation

On March 20, 2025, the Division of Corporation Finance (the “Division”) of the Securities and Exchange Commission announced that it has updated certain Compliance and Disclosure Interpretations (“C&DIs”) related to Securities Act forms, Exchange Act forms, Regulation S-K and Securities Act Rules.

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SEC Expands Accommodations for Draft Registration Statements

March 10, 2025 | Posted by Andrew L. Fabens; Hillary H. Holmes; Peter Wardle; Harrison Tucker Topic(s): Capital Markets; Disclosure; IPOs; Registered Securities Offerings; Registration Statements; Securities Regulation

On March 3, 2025, the Division of Corporation Finance of the Securities and Exchange Commission (“SEC”) announced that it is further expanding existing accommodations to allow more companies to confidentially submit draft registration statements for nonpublic review.  These accommodations provide more flexibility for certain companies to initiate registration of their securities, spin-offs, and other offering processes without making the process initially public.

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Updated Summary of Director Education Opportunities Now Available

January 14, 2025 | Posted by Hillary H. Holmes; Lori Zyskowski; Ronald O. Mueller; Elizabeth A. Ising Topic(s): Audit Committee; Corporate Governance; ESG; IPOs; Securities Regulation; Shareholder Proposals

Gibson Dunn’s summary of director education opportunities has been updated as of January 2025. A copy is available at this link. Boards of Directors of public and private companies find this a useful resource as they look for high quality education opportunities.

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Updated Summary of Director Education Opportunities Now Available

October 17, 2024 | Posted by Hillary H. Holmes; Julia Lapitskaya; Lori Zyskowski; Ronald O. Mueller; Elizabeth A. Ising Topic(s): Audit Committee; Corporate Governance; ESG; IPOs; Securities Regulation; Shareholder Proposals

Gibson Dunn’s summary of director education opportunities has been updated as of October 2024. A copy is available at this link. Boards of Directors of public and private companies find this a useful resource as they look for high quality education opportunities.

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Updated Summary of Director Education Opportunities Now Available

June 20, 2024 | Posted by Hillary H. Holmes; Julia Lapitskaya; Lori Zyskowski; Ronald O. Mueller; Elizabeth A. Ising Topic(s): Audit Committee; Corporate Governance; ESG; IPOs; Securities Regulation; Shareholder Proposals

Gibson Dunn’s summary of director education opportunities has been updated as of June 2024. A copy is available at this link. Boards of Directors of public and private companies find this a useful resource as they look for high quality education opportunities. 

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Reminder: Securities Settlement Cycle Transitions to T+1 on May 28, 2024

May 22, 2024 | Posted by Harrison Tucker; Hillary H. Holmes; Andrew L. Fabens Topic(s): Capital Markets; IPOs; Registered Securities Offerings; Registration Statements; Securities Regulation; Underwriters and Agents

​​As previously reported on our Securities Regulation and Corporate Governance Monitor (available here and here), on May 28, 2024, the standard settlement cycle for most broker-dealer transactions will be shortened from “T+2″ to “T+1,” subject to certain exceptions.  The SEC approved this change in its rule amendments to Rule 15c6-1(a) under the Exchange Act adopted on February 15, 2023.

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Reminder For Resource Extraction Issuers: Form SD Due September 2024

April 16, 2024 | Posted by Hillary H. Holmes; James J. Moloney; Harrison Tucker Topic(s): Audit Committee; Corporate Governance; Disclosure; Securities Regulation

​As previously reported on our Securities Regulation and Corporate Governance Monitor on December 16, 2020 (available here), the Securities and Exchange Commission (the “SEC") adopted the final rule (available here) requiring additional disclosures by public companies that engage in the commercial development of oil, natural gas or minerals. Under the final rule, domestic or foreign “resource extraction issuers" are required to annually disclose information about certain payments made to foreign governments or the U.S. federal government on Form SD.

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Updated Summary of Director Education Opportunities Available

April 9, 2024 | Posted by Hillary H. Holmes; Lori Zyskowski; Elizabeth A. Ising; Ronald O. Mueller Topic(s): Audit Committee; Compensation Committee; Corporate Governance; ESG; IPOs

Gibson Dunn’s summary of director education opportunities has been updated as of April 2024. A copy is available at this link.

Boards of Directors of public and pre-IPO companies find this a useful resource as they look for high quality education opportunities.

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Summary of Director Education Opportunities – Updated

January 5, 2024 | Posted by Hillary H. Holmes; Lori Zyskowski; Elizabeth A. Ising; Ronald O. Mueller Topic(s): Audit Committee; Corporate Governance; IPOs; Shareholder Proposals

Gibson Dunn’s summary of director education opportunities has been updated as of January 2024. A copy is available at this link - Board-Education-Opportunities-January-2024.pdf

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SEC Exempts Rule 144A Debt Issuances From Rule 15c2-11 Information Requirements

November 2, 2023 | Posted by Hillary H. Holmes; Thomas J. Kim; Andrew L. Fabens Topic(s): Capital Markets; Financial Statements; Private Placements; Securities Regulation

On October 30, 2023, the Securities and Exchange Commission (the “Commission") issued an Order exempting brokers and dealers from the requirements of Rule 15c2-11(g) (the “Rule") under the Securities Exchange Act of 1934, as amended, with respect to fixed-income securities that are sold in compliance with the safe harbor in Rule 144A (the “Rule 144A") under the Securities Act of 1933, as amended, for resales to Qualified Institutional Buyers (“QIBs").  As a result, issuers of Rule 144A fixed-income securities will not have to publish public information in order for brokers to quote their securities and facilitate trading.

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Updated Summary of Director Education Opportunities Available

October 11, 2023 | Posted by Hillary H. Holmes; Lori Zyskowski; Elizabeth A. Ising; Ronald O. Mueller Topic(s): Audit Committee; Compensation Committee; Corporate Governance; ESG; IPOs

Gibson Dunn’s summary of director education opportunities has been updated as of October 2023. A copy is available at this link. Boards of Directors of public and private companies find this a useful resource as they look for high quality education opportunities.  

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SEC Desktop Calendar 2024 – Now Available

October 10, 2023 | Posted by Hillary H. Holmes; Lori Zyskowski Topic(s): Audit Committee; Capital Markets; Disclosure; IPOs; Registration Statements; Securities Regulation; Underwriters and Agents

​To continue assisting US companies with planning for SEC reporting and capital markets transactions into 2024, we offer our annual SEC Desktop Calendar. This calendar provides both the filing deadlines for key SEC reports and the dates on which financial statements in prospectuses and proxy statements must be updated before use (a/k/a financial staleness deadlines).

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Preparing for a Potential Government Shutdown: Initial Impacts on SEC Operations

September 29, 2023 | Posted by Hillary H. Holmes; James J. Moloney; Ronald O. Mueller Topic(s): Capital Markets; Disclosure; IPOs; Proxy Statements and Annual Meetings; Registered Securities Offerings; Securities Regulation; Shareholder Proposals; Underwriters and Agents

A looming partial shutdown of the federal government is on track to occur at 12:01 a.m. ET on Sunday, October 1, 2023, if Congress is unable to reach agreement on legislation funding the government. The SEC Division of Corporation Finance (the “Division”) announced that in the event of a government shutdown, the SEC’s “activities will be extremely limited” and specifically, that it would not be able to accelerate the effectiveness of registration statements. The Division advised that, to the extent possible, registrants with pending registration or offering statements that have satisfied the requirements to request acceleration of the effective date should consider requesting effectiveness or qualification while the Division continues its normal operations.

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Updated Summary of Director Education Opportunities Now Available

July 10, 2023 | Posted by Hillary H. Holmes; Lori Zyskowski; Ronald O. Mueller; Elizabeth A. Ising Topic(s): Audit Committee; Corporate Governance; ESG; IPOs; Securities Regulation; Shareholder Proposals

​Gibson Dunn’s summary of director education opportunities has been updated as of July 2023. A copy is available at this link. Boards of Directors of public and private companies find this a useful resource as they look for high quality education opportunities.  

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Supreme Court Upholds Tracing Requirement For Section 11 Claims in Direct Listings – Slack Technologies LLC v. Pirani, No. 21-200

June 6, 2023 | Posted by Stewart McDowell; Ronald O. Mueller; Andrew L. Fabens; Hillary H. Holmes; Peter Wardle Topic(s): Capital Markets

On June 1, 2023, the Supreme Court of the United States unanimously upheld that  plaintiffs alleging the registration statement for a “direct listing" IPO contained a material misstatement or omission, who sue under Section 11 of the Securities Act of 1933, must trace the shares they bought  to the registration statement.  In a direct listing, unlike a traditional IPO, unregistered shares can be sold by non-affiliates on the initial listing date, so it is possible that certain shares bought on the first day will be unregistered shares and thus not subject to the strict liability standard of Section 11.   

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Updated Summary of Director Education Opportunities Available

April 11, 2023 | Posted by Hillary H. Holmes; Lori Zyskowski; Ronald O. Mueller; Elizabeth A. Ising Topic(s): Audit Committee; Corporate Governance; ESG; IPOs

Gibson Dunn’s summary of director education opportunities has been updated as of April 2023. A copy is available at this link. Boards of Directors of public companies find this a useful resource as they look for high quality education opportunities.  

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SEC Adopts New Final Rules for Clearance and Settlement; Proposes Changes for Investment Adviser Rules

February 22, 2023 | Posted by Hillary H. Holmes; Peter Wardle Topic(s): Capital Markets; Private Placements; Registered Securities Offerings; Securities Regulation

On February 15, 2023, the Securities and Exchange Commission (the “SEC") adopted final rule changes intended to reduce risk in clearance and settlement for most broker-dealer securities transactions and proposed new rules designed to enhance safeguards for customer assets managed by investment advisers.

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Updated Summary of Director Education Opportunities Available

January 5, 2023 | Posted by Hillary H. Holmes; Lori Zyskowski; Ronald O. Mueller; Justine Robinson Topic(s): Audit Committee; Corporate Governance; ESG; IPOs

Gibson Dunn’s summary of director education opportunities has been updated as of January 2023. A copy is available at this link. Boards of Directors of public companies find this a useful resource as they look for high quality education opportunities.

Read More

Updated Summary of Select Director Education Opportunities Available

October 19, 2022 | Posted by Lori Zyskowski; Elizabeth A. Ising; Hillary H. Holmes Topic(s): Audit Committee; Corporate Governance

Gibson Dunn’s summary of director education opportunities has been updated as of October 2022 and is available
at this link. Boards of Directors of public companies find this a useful resource as they look for high quality education opportunities.

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EDGAR Ready to Accept Online Form 144 Filings Ahead of Deadline for Electronic Filing Requirement

October 11, 2022 | Posted by Hillary H. Holmes; James J. Moloney Topic(s): Capital Markets; Securities Regulation

Since September 23, 2022, the Securities and Exchange Commission (the “SEC") Electronic Data Gathering, Analysis, and Retrieval (“EDGAR") system has been ready to accept electronic Form 144 filings, pursuant to the SEC’s recent amendments requiring certain Forms 144 to be filed electronically. Filers have approximately six months from September 2022 to transition to electronic filing of Forms 144. The SEC’s compliance date is April 13, 2023. 

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SEC Raises Annual Gross Revenue Amount in the Definition of Emerging Growth Company

September 20, 2022 | Posted by Hillary H. Holmes; James J. Moloney Topic(s): Capital Markets; Securities Regulation

On September 9, 2022, the Securities and Exchange Commission (the “SEC”) amended its rules to
implement inflation-adjusted amendments to Rule 405 of the Securities Act of 1933, as amended (the “Securities Act”) and Rule 12b-2 of the Securities Exchange Act of 1932, as amended (the “Exchange Act”), and raised the annual gross revenue amount in the definition of “emerging growth company” (“EGC”) from $1,070,000,000 to $1,235,000,000. The final rule (available

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Update on Changes in SEC Commissioners

July 21, 2022 | Posted by Hillary H. Holmes; Thomas J. Kim; Ronald O. Mueller; James J. Moloney Topic(s): Audit Committee; Capital Markets; Securities Regulation

On July 18, 2022, the Securities and Exchange Commission (“SEC”) announced that Jaime Lizárraga was sworn in as the SEC’s newest Commissioner following the departure of Allison Herren Lee on July 15. The current SEC Commissioners are as follows, in order of reverse seniority:

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Now Available: SEC Desktop Calendar for 2023

July 20, 2022 | Posted by Hillary H. Holmes; Peter Wardle; Justine Robinson; Lori Zyskowski Topic(s): Audit Committee; Capital Markets; Corporate Governance; Disclosure; Financial Statements; IPOs; Proxy Statements and Annual Meetings; Registered Securities Offerings; Registration Statements; Securities Regulation; Underwriters and Agents

To continue assisting US companies with planning for SEC reporting and capital markets transactions into 2023, we offer our annual SEC Desktop Calendar. This calendar provides both the filing deadlines for key SEC reports and the dates on which financial statements in prospectuses and proxy statements must be updated before use (a/k/a financial staleness deadlines).

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Updated Summary of Select Director Education Opportunities Available

June 29, 2022 | Posted by Hillary H. Holmes; Elizabeth A. Ising Topic(s): Audit Committee; Corporate Governance

Gibson Dunn’s summary of director education opportunities has been updated as of July 2022 and is available at the link below. Boards of Directors of public companies find this a useful resource as they look for high quality education opportunities.

Read More

Updated Summary of Select Director Education Opportunities Available

February 22, 2022 | Posted by Hillary H. Holmes; Elizabeth A. Ising Topic(s): Audit Committee; Corporate Governance

Gibson Dunn’s summary of director education opportunities has been updated as of February 2022 and is available at the link below. Boards of Directors of public companies find this a useful resource as they look for high quality education opportunities.

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SEC Proposes Rule Changes to Shorten the Security Settlement Cycle to T+1 by March 31, 2024

February 14, 2022 | Posted by J. Alan Bannister; Boris Dolgonos; Andrew L. Fabens; Hillary H. Holmes; Peter Wardle Topic(s): Capital Markets; Miscellaneous; Securities Regulation

​On February 9, 2022, the Securities and Exchange Commission (the “Commission”) announced a proposed rule to shorten the standard settlement cycle for most broker-dealer transactions from two business days after the trade date (“T+2″) to one business day after the trade date (“T+1″), while soliciting comments regarding challenges and possible approaches to achieving settlement by the end of trade date (“T+0″).

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Now Available: Considerations for Preparing Your 2021 Form 10-K

January 21, 2022 | Posted by Andrew L. Fabens; Brian J. Lane; Elizabeth A. Ising; Hillary H. Holmes; James J. Moloney; Michael A. Titera; Thomas J. Kim; Ronald O. Mueller Topic(s): Capital Markets; Corporate Governance; Disclosure; Environmental/Climate Change; ESG; Financial Statements; Human Capital Management; Proxy Statements and Annual Meetings; Securities Regulation

​As we do each year, we offer our observations on new developments and recommended practices for calendar-year filers to consider in preparing their Form 10-K. This alert reviews the recent amendments to Regulation S-K adopted by the U.S. Securities and Exchange Commission (“SEC”) and discusses how public companies are reacting to these new requirements.

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Now Available: SEC Desktop Calendar for 2022

September 30, 2021 | Posted by Hillary H. Holmes; Peter Wardle; Lori Zyskowski Topic(s): Audit Committee; Capital Markets; Disclosure; IPOs; M&A; Proxy Statements and Annual Meetings; Registration Statements; Securities Regulation

​To continue assisting US companies with planning for SEC reporting and capital markets transactions into 2022, we offer our annual SEC Desktop Calendar. This calendar provides both the filing deadlines for key SEC reports and the dates on which financial statements in prospectuses and proxy statements must be updated before use (a/k/a financial staleness deadlines).

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What Can We Expect from the SEC with COP26 Around the Corner?

August 23, 2021 | Posted by Hillary H. Holmes; Elizabeth A. Ising; Lori Zyskowski Topic(s): Audit Committee; Corporate Governance; ESG; Securities Regulation

Climate change matters and related calls for regulation are in headlines daily. On August 9, 2021, the UN’s Intergovernmental Panel on Climate Change (IPCC) published the first major international assessment of climate-change research since 2013. The IPCC report will inform negotiations at the 2021 UN Climate Change Conference, also known as COP26, beginning on October 31, 2021 in Glasgow. 

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Direct Listings on Nasdaq May Include Primary Capital Raise

June 23, 2021 | Posted by Hillary H. Holmes; Boris Dolgonos Topic(s): Capital Markets; IPOs; Registration Statements; Securities Regulation

​In May, the SEC issued an order (here) approving a proposal by The Nasdaq Stock Market LLC (Nasdaq) permitting primary offerings in connection with a direct listing. This allows companies that are going public through a direct listing to raise proceeds in the direct listing, similar to an IPO. This development follows the SEC’s prior approval of a similar rule proposed by the New York Stock Exchange (NYSE) that also permits primary capital raises in connection with a direct listing. See Gibson Dunn’s Current Guide to Direct Listings (here) and Nasdaq’s Direct Listing page (here) for more information.

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SEC Staff Issues Cautionary Guidance Related to Business Combinations with SPACs

April 6, 2021 | Posted by Hillary H. Holmes; Peter Wardle; Gerry Spedale Topic(s): Audit Committee; Capital Markets; Corporate Governance; Disclosure; Financial Statements; IPOs; Private Placements; Registration Statements; Securities Regulation

​There were more initial public offerings (“IPOs") of special purpose acquisition companies (“SPACs") in 2020 alone than in the entire period from 2009 until 2019 combined, and in the first three months of 2021, there have been more SPAC IPOs than there were in all of 2020. All of these newly public SPACs are looking for business combinations and many private companies are or will be considering a combination with a SPAC as a way to go public.

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SEC Chair Lays Out a Climate- and ESG-Oriented Agenda and Calls for Comments on Mandatory Climate-Related Disclosure Rules

March 16, 2021 | Posted by Elizabeth A. Ising; Hillary H. Holmes; James J. Moloney; Ronald O. Mueller; Thomas J. Kim; Lori Zyskowski; Michael Scanlon Topic(s): Corporate Governance; Disclosure; Securities Regulation

On March 15, 2021, the Acting Chair of the Securities and Exchange Commission (SEC), Allison Herren Lee, gave a speech entitled “A Climate for Change: Meeting Investor Demand for Climate and ESG Information at the SEC,”[1] in which she sets forth a near-term regulatory agenda for the SEC that centers on climate and Environmental, Social, and Governance (ESG) topics. On the same day, she also jump-started the regulatory process toward adopting potentially extensive new disclosure requirements for public companies on climate-change matters by issuing a request for comments on 15 broad issues.[2]

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SEC Announces Enforcement Task Force Focused on Climate and ESG Issues

March 4, 2021 | Posted by Elizabeth A. Ising; Ronald O. Mueller; Hillary H. Holmes Topic(s): Disclosure; Securities Regulation

On March 4, 2021, the Securities and Exchange Commission (SEC) announced the creation of the “Climate and ESG Task Force” in the SEC’s Division of Enforcement.[1]  The purpose of the Task Force is to “develop initiatives to proactively identify ESG-related misconduct.”  The Task Force’s initial focus will be to identify “any material gaps or misstatements in issuers’ disclosure of climate risks under existing rules.”  The Task Force will also “analyze disclosure and compliance issues relating to investment advisers’ and funds’ ESG strategies.”  

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Nasdaq Amends Proposed Rules to Allow Primary Direct Listings

March 1, 2021 | Posted by Hillary H. Holmes; Boris Dolgonos Topic(s): Capital Markets; IPOs; Private Placements; Registration Statements; Securities Regulation

As discussed in Gibson Dunn’s Current Guide to Direct Listings,  the New York Stock Exchange (NYSE) recently amended its rules to permit a primary offering in connection with a direct listing. The Nasdaq Stock Market LLC (Nasdaq) also had proposed rules permitting primary offerings in connection with a direct listing.[1] On February 24, 2021, in the course of the SEC’s review, Nasdaq amended its original proposal to bring its rules more in line with those adopted by the NYSE and approved by the SEC – clearing up some confusion caused by the original proposal.[2]

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Now Available: Considerations for Preparing Your 2020 Form 10-K

February 4, 2021 | Posted by Hillary H. Holmes; Elizabeth A. Ising; Thomas J. Kim; Brian J. Lane; James J. Moloney; Ronald O. Mueller; Michael Scanlon; Michael A. Titera Topic(s): Audit Committee; Capital Markets; Disclosure; Financial Statements; Proxy Statements and Annual Meetings; Registration Statements; Securities Regulation

​As we do each year, we offer our observations on new developments and recommended practices for calendar-year filers to consider in preparing their annaul report on Form 10-K. In addition to the many challenges of the past year, the SEC adopted and provided guidance on a number of changes to public company reporting obligations impacting disclosures in the 10-K for 2020. In particular, we discuss the recent amendments to Regulation S-K, disclosure considerations in light of COVID-19, a number of technical considerations that may impact your Form 10-K, and other considerations in light of recent and pending changes in the executive branch and at the SEC.​  The full memo is available at the following link:

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SEC Proposes Changes to Rule 144, Form 144, Form 4 and Form 5

January 5, 2021 | Posted by Eric Scarazzo; Hillary H. Holmes Topic(s): Capital Markets; Executive Compensation; Private Placements; Securities Regulation

​On December 22, 2020, the Securities and Exchange Commission (the “SEC") proposed and published for comment amendments to Rule 144, Form 144, Form 4, Form 5 and Rule 101 of Regulation S-T.  These amendments primarily seek to (a) mitigate the risk of unregistered distributions in connection with sales of market-adjustable securities under the current Rule 144 safe harbor by revising the holding period for such securities to begin upon the conversion or exchange of such securities, and (b) update and streamline Form 144 by mandating electronic filing and eliminating the Form 144 filing requirement with respect to non-reporting issuers.  Comments on the proposed rules will be due 60 days after publication of the proposal in the Federal Register and  may be submitted electronically using the SEC’s internet comment form (http://www.sec.gov/rules/submitcomments.htm) or by mail to the following address: Vanessa A. Countryman, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.  All submissions should refer to File Number S7-24-20.

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SEC Adopts New Rule Relating to Submissions through EDGAR and Electronic and Remote Online Notarization

December 22, 2020 | Posted by Hillary H. Holmes; James J. Moloney; Peter Wardle Topic(s): Miscellaneous; Securities Regulation

​On December 11, 2020, the Securities and Exchange Commission (the “SEC") announced its adoption of a new rule under Regulation S-T in connection with its administration of the Electronic Data Gathering, Analysis, and Retrieval system (“EDGAR") to promote the reliability and integrity of EDGAR submissions, and also the adoption of revisions to Volumes I and II of the EDGAR Filer Manual and related rules under Regulation S-T, including provisions regarding electronic notarizations and remote online notarizations, which include electronic signatures.

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SEC (Finally) Adopts Resource Extraction Disclosure Rules (Again)

December 21, 2020 | Posted by Hillary H. Holmes; Gerry Spedale Topic(s): Audit Committee; Disclosure; Dodd Frank

​On December 16, 2020, the Securities and Exchange Commission (the “SEC") adopted final rules (available here) requiring certain disclosure by public companies that engage in the commercial development of oil, natural gas or minerals. Under the final rules, domestic or foreign “resource extraction issuers" (the definition of which is discussed below) will have to file a Form SD on an annual basis that includes information about payments related to the commercial development of oil, natural gas or minerals that are made to a foreign government or the U.S. federal government.

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Summary of Select Director Education Opportunities Available

December 13, 2020 | Posted by Hillary H. Holmes; Elizabeth A. Ising Topic(s): Audit Committee; Compensation Committee; Corporate Governance

​Gibson Dunn’s summary of director education opportunities has been updated as of December 2020 and is available at the links below. Boards of Directors of public companies find this a useful resource as they look for high quality education opportunities.

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Summary Chart and Comparative Blackline Reflecting Recent Amendments to MD&A Requirements Now Available

December 11, 2020 | Posted by Hillary H. Holmes; Lori Zyskowski; Michael A. Titera; Ronald O. Mueller; Andrew L. Fabens Topic(s): Audit Committee; Disclosure; Financial Statements; Registration Statements

On November 19, 2020, the SEC announced that it had adopted amendments to Item 301 (“Selected Financial Data"), Item 302 (“Supplementary Financial Information") and Item 303 (“Management’s Discussion and Analysis of Financial Condition and Results of Operations") of Regulation S-K.  This article provides (1) a high level summary of the amendments, effective dates and Commissioners’ views, (2) a detailed description of the amendments in tabular format, and​ (3) a blackline comparison of the changes to Item 302(a) and Item 303 of Reg S-K.

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Desktop Calendar of SEC Deadlines for 2021 Now Available

November 23, 2020 | Posted by Hillary H. Holmes; Peter Wardle Topic(s): Audit Committee; Capital Markets; Financial Statements; IPOs; Registered Securities Offerings; Securities Regulation

​To assist companies in planning for their SEC reporting and capital markets transactions in 2021, we have prepared a desktop reference calendar that sets forth filing deadlines for core SEC reports. Our calendar also provides SEC staleness dates (i.e., the last date financial statements may be used in a prospectus or proxy statement without being updated).

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SEC Adopts Changes to the Exempt Offering Framework

November 7, 2020 | Posted by Hillary H. Holmes; Peter Wardle; Eric Scarazzo Topic(s): Audit Committee; Miscellaneous; Securities Regulation

​In an effort to facilitate capital formation and increase opportunities for investors by expanding access to capital for small and medium-sized businesses, on November 2, 2020, the SEC announced that it had approved amendments to certain of its rules relating to exempt offerings. The amendments follow the SEC’s June 2019 concept release and the SEC’s March 2020 proposing release on the harmonization of offering exemptions and reflect the SEC’s ongoing effort to harmonize, simplify and improve its offering framework. As discussed in our prior Monitor post (available here), the SEC has been working to untangle the current regulatory regime in order to ensure that capital-raising is rational, accessible and effective.

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SEC Provides New Option for Extending Confidential Treatment

September 11, 2020 | Posted by James J. Moloney; Hillary H. Holmes; Ronald O. Mueller; Michael A. Titera Topic(s): Miscellaneous; Securities Regulation

​The SEC just made it a little easier to maintain the confidentiality of sensitive information that is the subject of a soon-to-expire confidential treatment order. As discussed below, under the SEC’s latest guidance a company can now use the simplified confidential treatment process available for new exhibits when seeking to extend confidential treatment of previously filed exhibits.

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NYSE’s Attempt to Allow Primary Offerings in Direct Listings Hits a Snag

September 2, 2020 | Posted by Hillary H. Holmes; Boris Dolgonos; Peter Wardle; Andrew L. Fabens Topic(s): Corporate Governance; Miscellaneous; Securities Regulation

​Direct listings have emerged as one of the new innovative pathways to the U.S. public capital markets, thought to be ideal for entrepreneurial companies with a well-recognized brand name or easily understood business model. We have also found it attractive to companies that are already listed on a foreign exchange and are seeking a dual listing in the United States. Because direct listings are currently limited to secondary offerings by existing shareholders, they are not an attractive option for companies seeking to raise new capital in connection with a listing. 

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SEC Reduces Filing Fee Rate Effective October 1, 2020

August 28, 2020 | Posted by Hillary H. Holmes; Ronald O. Mueller Topic(s): Audit Committee; Miscellaneous; Securities Regulation

​On August 26, 2020, the Securities and Exchange Commission announced that starting October 1, 2020, the fees that public companies and other issuers must pay to register securities with the SEC will be set at $109.10 per million dollars of securities registered. This is a reduction from the rate for 2020 of $129.80.

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SEC Expands the Definitions of “Accredited Investor” and “Qualified Institutional Buyer”

August 27, 2020 | Posted by Hillary H. Holmes; Michael A. Titera; Ronald O. Mueller; Peter Wardle; Brian J. Lane Topic(s): Audit Committee; Securities Regulation

Of particular interest as private capital markets activity continues to grow, the “accredited investor" definition is one of the principal tests for determining who is eligible to participate in investment opportunities presented by the private capital markets. On August 26, 2020, the SEC announced that it adopted amendments to the definitions of “accredited investor" in Rule 501, as well as the definition of “qualified institutional buyer" in Rule 144A, each under the Securities Act of 1933. These amendments are part of the SEC’s ongoing efforts to simplify, harmonize and improve the framework for securities offerings that are not registered with the SEC under the Securities Act (for more information on this initiative, see our prior Monitor post here).

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SEC To Consider Adopting Changes to Regulation S-K and Definitions of Qualified Investors in Private Placements: Public Meeting on August 26

August 21, 2020 | Posted by Hillary H. Holmes; Michael A. Titera Topic(s): Audit Committee; Securities Regulation

​What are you doing at lunchtime on August 26? The SEC has announced that it will hold a webcast public meeting to discuss its broader efforts to (1) modernize and improve the SEC’s disclosure framework in light of the changes in our capital markets and domestic and global economy, and (2) simplify, harmonize, and improve the exempt offering framework under the Securities Act to promote capital formation and expand investment opportunities while maintaining and enhancing appropriate investor protections.

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SEC Staff provides additional disclosure guidance related to COVID-19 impact

June 25, 2020 | Posted by Hillary H. Holmes; Michael A. Titera; James J. Moloney; Ronald O. Mueller Topic(s): Audit Committee; Miscellaneous; Securities Regulation

​Due to the ongoing assessment of the impact of COVID-19 on companies’ operations, liquidity and capital resources and overall economic and market conditions, companies should take special care in preparing for their quarterly reporting. To aid in this effort, the staff (the “Staff") of the Securities and Exchange Commission (“SEC") has posted a new set of questions that companies should consider in evaluating whether certain disclosures should be included in their earnings release and, in light of its potential materiality, in the management discussion and analysis (“MD&A") included in the periodic reports (e.g., the Form 10-Q for second quarter 2020).

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SEC Releases COVID-19 FAQs to Provide Guidance on Disclosure Requirements and Form S-3

May 11, 2020 | Posted by Stewart McDowell; Hillary H. Holmes; James J. Moloney Topic(s): Corporate Governance; Miscellaneous; Securities Regulation

The SEC Division of Corporation Finance staff (the “Staff") has released a list of FAQs on COVID-19 for registrants (available here) that provides guidance on required disclosures under the SEC’s COVID-19 Order and the application of such order to Form S-3 filings.  The FAQs and responses provided by the Staff as of May 5, 2020 are summarized below—please follow the link above to read the full text of the FAQs.

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NYSE and Nasdaq Propose Temporary Waivers of Certain Market Capitalization and Trading Price Listing Requirements

April 23, 2020 | Posted by Hillary H. Holmes; Peter Wardle Topic(s): Audit Committee; Miscellaneous; Securities Regulation

​In light of the market downturn and similar to action taken in the Great Recession, the NYSE and Nasdaq have proposed temporary waivers of certain market capitalization and trading price listing requirements.

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NYSE Provides Temporary Waiver of Certain Shareholder Approval Requirements for Private Placements

April 12, 2020 | Posted by Hillary H. Holmes; Peter Wardle; Boris Dolgonos; Gerry Spedale Topic(s): Audit Committee; Miscellaneous; Securities Regulation

​On April 6, 2020, the Securities and Exchange Commission (“SEC") announced (available here) that it has immediately approved the New York Stock Exchange’s (“NYSE") proposed rule changes that temporarily waive certain shareholder approval requirements relating to private investments in public equity (PIPEs). The rule changes were proposed in light of the unprecedented disruption caused by COVID-19 and will apply through June 30, 2020. While these temporary waivers to Section 312.03 of the NYSE Listed Company Manual (the “Listing Manual") (available here) provide companies added flexibility in conducting PIPEs more quickly, companies must still obtain shareholder approval if required under any other applicable rule, including the equity compensation requirements of Section 303A.08 or the change of control requirements of Section 312.03(d) of the Listing Manual. For more information, please see our recent client alert (available here) discussing key considerations for PIPE transactions.

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Disclosure Considerations: One Month Into the U.S. Outbreak

April 10, 2020 | Posted by Hillary H. Holmes Topic(s): Corporate Governance; Miscellaneous; Securities Regulation

​The COVID‐19 outbreak is creating a great deal of uncertainty in the global economy and in our daily lives. Companies worldwide are facing unique legal and operational challenges related to the outbreak and the downturn in the economy. In the midst of this constantly evolving landscape, U.S. publicly traded companies must continue to consider how the situation impacts their disclosure.

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SEC Amends Accelerated and Large Accelerated Filer Definitions to Reduce Burdens on Smaller Reporting Companies – Effective April 27, 2020

March 30, 2020 | Posted by Hillary H. Holmes; James J. Moloney Topic(s): Audit Committee; Corporate Governance; Miscellaneous; Securities Regulation

​On March 12, 2020, the Securities and Exchange Commission announced (available here) the adoption of a final rule (available here) amending the “accelerated filer” and “large accelerated filer” definitions. The amendments will be effective April 27, 2020 and first impact annual reports on Form 10-K due after the effective date.

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Coronavirus Disease 2019 Update: Impact under Nasdaq Rules of SEC Relief to Affected Companies

March 12, 2020 | Posted by Andrew L. Fabens; Hillary H. Holmes; James J. Moloney Topic(s): Audit Committee; Corporate Governance; Miscellaneous

​On March 8, 2020, we discussed on a post (available here) about the announcement (available here) by the Securities and Exchange Commission (the “Commission”) that providedconditional regulatory relief (Order available here) for certain filing obligations under the federal securities laws to companies impacted by the coronavirus disease 2019 (“COVID-19”).

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SEC Provides Conditional Regulatory Relief and Additional Disclosure Guidance for Companies Affected by the Coronavirus Disease 2019 (COVID-19)

March 8, 2020 | Posted by Hillary H. Holmes; James J. Moloney; Andrew L. Fabens Topic(s): Audit Committee; Corporate Governance; Miscellaneous; Securities Regulation

On March 4, 2020, the Securities and Exchange Commission (the “Commission”) announced (available here) that it is providing conditional regulatory relief (Order available here) for certain filing obligations under the federal securities laws to companies impacted by the coronavirus disease 2019 (“COVID-19”), including “U.S. companies located in the affected areas, as well as companies with operations in those regions.

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SEC Amends Rules to Encourage Issuers to Conduct Registered Debt Offerings

March 7, 2020 | Posted by Hillary H. Holmes; Peter Wardle Topic(s): Audit Committee; Securities Regulation

​On March 2, 2020, the Securities and Exchange Commission (the “Commission”) announced (available here) the adoption of amendments to the financial disclosure requirements applicable to registered debt offerings that include credit enhancements, such as subsidiary guarantees, in an effort to “improve the quality of disclosure and increase the likelihood that issuers will conduct debt offerings on a registered basis."

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Direct Listing Update: Revised Proposal for Primary Offerings

February 28, 2020 | Posted by Hillary H. Holmes Topic(s): Corporate Governance; Miscellaneous; Securities Regulation

 

On December 3, 2019, Gibson Dunn published A Current Guide to Direct Listings discussing, among other things, a proposal submitted to the U.S. Securities and Exchange Commission (SEC) by the New York Stock Exchange (NYSE)that would permit a privately-held company to conduct a direct listing in connection with a primary offering. On December 11, 2019, the NYSE withdrew its proposal (as reported in An Interim Update on Direct Listing Rules) and was expected to submit a revised proposal consistent with past proposals related to direct listings. On December 11, 2019, the NYSE submittedthe revised proposal. 

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SEC Announces Proposed Amendments to MD&A and Guidance on Key Performance Indicators and Metrics; Commissioners Debate Addition of Sustainability Disclosure Requirements

February 7, 2020 | Posted by Hillary H. Holmes; James J. Moloney; Peter Wardle Topic(s): Audit Committee; Corporate Governance; Securities Regulation

​On January 30, 2020, the Securities and Exchange Commission (the SEC) issued proposed amendments to simplify the requirements of Regulation S-K and an interpretative release relating to Management’s Discussion and Analysis (“MD&A”).

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SEC Proposes Revised Resource Extraction Rules, Again!

December 28, 2019 | Posted by Hillary H. Holmes; James J. Moloney Topic(s): Audit Committee; Miscellaneous; Securities Regulation

 

[Updated January 18, 2020]

On December 18, 2019, the Securities and Exchange Commission (the “SEC”) released proposed rules (available here) relating to the disclosure of payments by resource extraction issuers. The SEC’s release sets forth the tortured more-than-seven-year history of this rulemaking (see previous Gibson Dunn posts regarding this topic in 2015, 2013 and 2010). The SEC is proposing these rules by mandate pursuant to Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) after having earlier adopted versions of the rules vacated in 2012 by the U.S. District Court for the District of Columbia, a ruling which the SEC declined to appeal, and disapproved in 2016 by Congress pursuant to its authority under the Congressional Review Act. While Congress disapproved of the adopted rules in 2016, it did not repeal Section 1504 of the Dodd-Frank Act, so the SEC’s rulemaking mandate remained in place. Revised rules cannot be substantially similar to the ones disapproved by Congress under the Congressional Review Act. As such, the newly proposed rules substantially differ from the previously adopted rules, and the differences are discussed in more detail below.

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Direct Listing Update: Revised Proposal for Primary Offerings

December 13, 2019 | Posted by Hillary H. Holmes Topic(s): Corporate Governance; Miscellaneous; Securities Regulation

 

On December 3, 2019, Gibson Dunn published A Current Guide to Direct Listings discussing, among other things, a proposal submitted to the U.S. Securities and Exchange Commission (SEC) by the New York Stock Exchange (NYSE)that would permit a privately-held company to conduct a direct listing in connection with a primary offering. On December 6, 2019, the NYSE withdrew its proposal (as reported in An Interim Update on Direct Listing Rules) and was expected to submit a revised proposal consistent with past proposals related to direct listings. On December 12, 2019, the NYSE submitted the revised proposal. 

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An Interim Update on Direct Listing Rules

December 11, 2019 | Posted by J. Alan Bannister; Hillary H. Holmes Topic(s): Corporate Governance; Miscellaneous; Securities Regulation

​On December 3, 2019, Gibson Dunn published A Current Guide to Direct Listings discussing, among other things, a proposal submitted to the U.S. Securities and Exchange Commission (SEC) on November 26, 2019 by the New York Stock Exchange (NYSE) that would permit a privately held company to conduct a direct listing in connection with a primary offering, potentially creating a new on-ramp to the public capital markets in the United States. 

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A Current Guide to Direct Listings

December 4, 2019 | Posted by J. Alan Bannister; Hillary H. Holmes Topic(s): Corporate Governance; Miscellaneous; Securities Regulation

 

Direct listings have increasingly been gaining attention as a means for a private company to go public. In our most recent memo available here, we provide a summary of the current requirements for direct listings on the NYSE and Nasdaq and of NYSE’s recent proposal to amend its direct listing rules to allow primary offerings through the NYSE in conjunction with direct listings. We also explore the potential benefits and risks associated with direct listings.

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Everyone Jump In! All Issuers Will Be Allowed to “Test-the-Waters”

October 3, 2019 | Posted by Andrew L. Fabens; Hillary H. Holmes Topic(s): JOBS Act; Securities Regulation

On September 26, 2019, the SEC announced (available here) that it has adopted a new rule, Rule 163B (available here) under the Securities Act of 1933, that allows all issuers to “test-the-waters." This accommodation, which had previously been available only to emerging growth companies (EGCs), allows issuers and authorized persons (e.g., underwriters) to engage in discussions with, and provide written offering material to, certain institutional investors prior to, or following, the filing of a registration statement, to determine market interest in potential registered securities offerings. Rule 163B will become effective 60 days after publication in the Federal Register.

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Desktop Calendar of SEC Deadlines for 2020 Now Available

August 21, 2019 | Posted by Hillary H. Holmes; Andrew L. Fabens; Peter Wardle; Stewart McDowell; James J. Moloney; Elizabeth A. Ising; Lori Zyskowski Topic(s): Audit Committee; Corporate Governance; Miscellaneous; Securities Regulation

​This is a smart time of year to confirm plans for SEC reporting and capital markets transactions in 2020. To assist public companies in keeping track of the various filing deadlines, we have prepared a desktop reference calendar that sets forth filing deadlines for many SEC reports. To assist companies with planning capital markets transactions, including IPOs, our calendar also provides the staleness dates (i.e., the last date financial statements may be used in a prospectus or proxy statement without being updated).

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SEC Proposes to Modernize Disclosures of Business, Legal Proceedings, and Risk Factors

August 12, 2019 | Posted by Hillary H. Holmes; James J. Moloney; Michael A. Titera Topic(s): Corporate Governance; Proxy Statements and Annual Meetings; Securities Regulation

​On August 8, 2019, the Securities and Exchange Commission (“SEC") announced that it voted to propose amendments to Regulation S-K (available here) seeking to modernize and simplify the required disclosures by public companies, investment advisors, and investment companies (the “Proposed Amendments").  The Proposed Amendments form part of the SEC’s ongoing efforts to simplify disclosure requirements, and, with the exception of Legal Proceedings, emphasize a more flexible, principles-based approach as opposed to prescriptive requirements.  “The world economy and our markets have changed dramatically in the more than 30 years since the adoption of our rules for business disclosures by public companies.  Today’s proposal reflects these significant changes, as well as the reality that there will be changes in the future," said Chairman Jay Clayton.  “I applaud the staff for their efforts to modernize and improve our disclosure framework, including recognizing that intangible assets, and in particular human capital, often are a significantly more important driver of value in today’s global economy.  The proposals reflect a thoughtful mix of prescriptive and principles-based requirements that should result in improved disclosures and the elimination of unnecessary costs and burdens."

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Reporting Companies Are Strongly Encouraged to Review SEC Statement On LIBOR Transition

July 17, 2019 | Posted by Michael A. Titera; Hillary H. Holmes; James J. Moloney Topic(s): Miscellaneous; Securities Regulation

​On July 12, 2019, the Division of Corporation Finance, Division of Investment Management, Division of Trading and Markets, and Office of the Chief Accountant of the Securities and Exchange Commission (the “Staff") issued a joint statement (the “Statement") (available here) regarding the expected discontinuation of LIBOR and transition to alternative reference rates.  The Statement reminds readers that the discontinuation of LIBOR could have a significant impact on financial markets and may present a material risk for market participants, including public companies, investment advisers, investment companies, and broker-dealers.  The Statement encourages market participants to proactively manage their transition away from LIBOR and outlines several areas that may warrant increased attention.  As noted by the Staff, “[f]or many market participants, waiting until all open questions have been answered to begin this important work likely could prove to be too late to accomplish the challenging task required."  We encourage anyone who may be impacted by the LIBOR transition to review the Statement, which outlines ways market participants can think through potential transition risks and provides helpful guidance on related disclosure obligations and risk management efforts. 

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SEC to Host Roundtable on Short-Termism on July 18

July 12, 2019 | Posted by Hillary H. Holmes; Brian J. Lane; James J. Moloney; Michael A. Titera Topic(s): Audit Committee; Corporate Governance; JOBS Act; Securities Regulation

​The Securities and Exchange Commission has announced (available here) that it will hold a roundtable on July 18, 2019, to hear from investors, issuers and other market participants about short-termism’s impact on capital markets and whether the reporting system or other SEC regulations should be changed to address those concerns. The event will begin at 12:30 p.m. ET in the SEC’s headquarters and be open to the public in person and via live webcast on SEC.gov, as well as archived for later viewing. The agenda and access information are available here. The roundtable is related to a request for comment that the SEC published in December 2018, when the SEC announced it may be reconsidering quarterly reporting (our post about that SEC request for comment on quarterly reporting is available here). 

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SEC Seeks to Simplify and Harmonize Private Offering Exemptions

June 24, 2019 | Posted by Hillary H. Holmes; James J. Moloney; Peter Wardle Topic(s): JOBS Act; Miscellaneous; Securities Regulation

On June 18, 2019, the Securities and Exchange Commission issued a concept release (available here) announcing that it isseeking comment on “possible ways to simplify, harmonize, and improve the exempt offering framework to promote capital formation and expand investment opportunities while maintaining appropriate investor protections.”

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SEC Proposes to Improve Disclosures Relating to Acquisitions and Dispositions of Businesses

May 7, 2019 | Posted by Hillary H. Holmes; Michael A. Titera; Andrew L. Fabens Topic(s): Audit Committee; Securities Regulation

​On May 3, 2019, the Securities and Exchange Commission announced (available here) proposed changes to existing disclosure requirements in connection with acquisitions and dispositions of businesses.  The proposed rules (available here) are intended to: (1) improve financial disclosures regarding the acquisition and disposition of businesses, (2) facilitate more timely access to capital, and (3) reduce the complexity and compliance costs related to such disclosures.

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SEC Streamlines Procedure for Confidential Treatment Extensions

April 17, 2019 | Posted by Ronald O. Mueller; Hillary H. Holmes; James J. Moloney Topic(s): Corporate Governance; JOBS Act; Securities Regulation

On April 16, 2019, the Division of Corporation Finance (the “Division") of the Securities and Exchange Commission (“SEC") announced streamlined procedures for confidential treatment extensions for material contracts where the Division has previously granted confidential treatment (available here). These procedures were announced in light of the recently adopted redacted exhibit rules that permit registrants to redact confidential information from certain exhibits without filing a confidential treatment request (for more on the redacted exhibit rules, see our related prior client alert and blog post). Under the SEC’s rules, a registrant that has previously obtained a confidential treatment order for a material contract must file an extension application under Securities Act Rule 406 or Exchange Act Rule 24b-2 to continue to protect such confidential information from public release prior to the expiration of the existing order. Of note, a registrant cannot use the SEC’s recently adopted redacted exhibit rules to refile a redacted material contract that was granted confidential treatment under the old rules, but instead must rely on the confidential treatment extension process.

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SEC Issues Guidance Relating to New Rules and Procedures for Redacting Confidential Information

April 3, 2019 | Posted by Hillary H. Holmes; James J. Moloney; Michael A. Titera Topic(s): Corporate Governance; JOBS Act; Securities Regulation

On April 1, 2019, the Division of Corporation Finance (the “Division”) of the Securities and Exchange Commission (the “SEC”) issued guidance relating to the recently adopted rules and procedures that permit registrants to redact confidential information from certain exhibits without filing a confidential treatment request (available here).  The guidance provides additional information on the Division’s process for reviewing redacted information and certain matters relating to the transition to the new rules and procedures. 

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SEC Continues to Modernize and Simplify Disclosure Requirements

March 27, 2019 | Posted by Hillary H. Holmes; James J. Moloney; Michael A. Titera Topic(s): Audit Committee; Corporate Governance; JOBS Act; Securities Regulation

On March 20, 2019, the Securities and Exchange Commission (SEC) adopted amendments (available here) to modernize and simplify disclosure requirements for public companies, investment advisors, and investment companies (the Final Rules). The Final Rules form part of the SEC’s ongoing efforts to simplify disclosure requirements. The Final Rules are largely consistent with the proposed amendments outlined in the SEC’s October 11, 2017 proposing release (available here, and discussed in our client alert available here).

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NYSE Amends Shareholder Approval Rule

March 22, 2019 | Posted by Andrew L. Fabens; Hillary H. Holmes Topic(s): Securities Regulation

On March 20, 2019, the SEC approved changes to the NYSE’s shareholder approval rule. The changes amend the price requirements that companies must meet to qualify for exceptions to the shareholder approval requirements under NYSE’s rule 312.03(b) (related party issuances) and 312.03(c) (the 20% rule).  The NYSE changes are comparable to changes made to Nasdaq’s 20% shareholder approval rule in September 2018.

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SEC Proposes Long-Awaited Expansion of “Test-the-Waters” to All Issuers – Use With Caution

February 20, 2019 | Posted by Hillary H. Holmes; Stewart McDowell; Andrew L. Fabens; Peter Wardle Topic(s): JOBS Act; Securities Regulation

On February 19, 2019, the Securities and Exchange Commission (the “SEC") proposed a new rule that would allow all issuers to engage in “testing the waters." Specifically, the SEC proposed an exemption (the “Proposed Rule") to certain provisions of Section 5 of the Securities Act of 1933 (the “Securities Act") commonly referred to as “gun-jumping" provisions. This exemption would permit any issuer or authorized person (e.g., an underwriter) to engage in oral or written communications with potential investors that the issuer reasonably believes are qualified institutional buyers (“QIBs") or institutional accredited investors (“IAIs").  Currently, this exemption to the gun-jumping provisions is only available to emerging growth companies (“EGCs").  The SEC believes that the Proposed Rule may “help issuers better assess the demand for and valuation of their securities," which may in turn “enhance the ability of issuers to conduct successful offerings and lower their cost of capital."  This goal is consistent with the SEC’s overall effort to increase the number of public companies and reduce the regulatory burden of capital raising.

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As Government Shutdown Continues, SEC Updates Guidance and Capital Markets Are Hindered

January 14, 2019 | Posted by Hillary H. Holmes; Andrew L. Fabens Topic(s): Securities Regulation; Shareholder Proposals

As we are all aware, the SEC has been closed since December 27th as a result of the ongoing partial shutdown of the federal government. While there are staff members available to respond to emergency situations involving market integrity and investor protection, including law enforcement, and the SEC continues to operate certain systems such as the EDGAR system, most activities are currently suspended. The SEC does not have staff in place to review registration statements and other filings, acceleration requests, Rule 3-13 waiver requests, and no-action letter requests, including with respect to shareholder proposal exclusions. As discussed in our previous post available here, the Staff has provided an FAQ page regarding operations during the shutdown. These FAQs were updated and supplemented recently. You should continue to visit the SEC’s website, including the FAQs, for any additional updates both during and shortly after the shutdown.

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SEC Expands Regulation A to Allow Offerings by Reporting Companies

January 7, 2019 | Posted by Hillary H. Holmes; Peter Wardle; James J. Moloney Topic(s): JOBS Act; Securities Regulation

On December 19, 2018, the Securities and Exchange Commission (the “SEC") adopted amendments to Regulation A allowing U.S. and Canadian companies that file reports under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act"), to conduct securities offerings using Regulation A.  The amendments were mandated by the Economic Growth, Regulatory Relief, and Consumer Protection Act, which was signed into law in May 2018.  

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Changes and Considerations for the 2018 Form 10-K

January 4, 2019 | Posted by Andrew L. Fabens; Hillary H. Holmes; Michael A. Titera; Ronald O. Mueller Topic(s): Securities Regulation

Below are select developments to keep in mind when preparing the Annual Report on Form 10-K this year. Registrants will need to update their disclosure in the upcoming 2018 Form 10-K as a result of recent rulemaking by the Securities and Exchange Commission (the "SEC") and new SEC guidance and accounting rule changes, as well as to reflect new and developing risk areas that the SEC or investors have identified. 

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Partial Shutdown: Potential Impact on SEC Operations

December 24, 2018 | Posted by Andrew L. Fabens; Hillary H. Holmes; Ronald O. Mueller; Stewart McDowell Topic(s): Securities Regulation

A partial shutdown of the federal government began at midnight on December 21, 2018. As a result, the SEC Division of Corporation Finance (the “Staff”) announced that the SEC would “remain fully operational for a limited number of days” from the beginning of the federal government shutdown. The SEC will be closed on December 24th and 25th in observance of the federal holiday. It is expected to have funding to remain in “open” status through the end of December 26th. Should the shutdown continue past the 26th, the SEC’s operating status is expected to change to “closed” and the SEC will begin to operate according to its Operations Plan under a Lapse in Appropriations and Government Shutdown. As currently envisaged, starting on December 27th the SEC “will have only an extremely limited number of staff members available to respond to emergency situations involving market integrity and investor protection, including law enforcement.” Regardless of the SEC’s operating status, the EDGAR filing system will continue to accept reports, registration statements and other filings. Accordingly, public companies must continue to file periodic and current reports when due on Forms 10-K, 10-Q and 8-K; however, from December 27th the SEC will not be able to declare registration statements effective nor qualify Form 1-A offering statements. A prolonged shutdown could create difficulties for the IPO market and for many public companies without an effective shelf registration statement and, in particular, would create a complex calculus for any company thinking about going public in January.

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SEC to Reconsider Quarterly Reporting, Solicits Public Comment

December 19, 2018 | Posted by Hillary H. Holmes; Michael A. Titera Topic(s): Corporate Governance; Securities Regulation

On December 18, 2018, the Securities and Exchange Commission published a request for comment on earnings releases and quarterly reports, available here.  The request was issued the day before, and in place of, the SEC’s previously scheduled open meeting to consider whether to issue such a request, as discussed here. 

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The Changes Keep Coming: SEC Updates C&DIs and NYSE Updates Rules for Revised “Smaller Reporting Company” Definition

November 14, 2018 | Posted by Hillary H. Holmes Topic(s): Corporate Governance; Securities Regulation

On November 7, 2018, the Staff of the Division of Corporation Finance of the Securities and Exchange Commission (the “Staff") released four updated, and withdrew six, Compliance and Disclosure Interpretations (“C&DIs") in light of the June 2018 amendments to the definition of a smaller reporting company (“SRC").  We summarized the amendments to the SRC definition in our previous blog post here.

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Desktop Calendar of SEC Deadlines for 2019 Now Available

November 12, 2018 | Posted by Hillary H. Holmes; Peter Wardle Topic(s): Corporate Governance; Securities Regulation

November is a good time to confirm plans for SEC reporting and capital markets transactions in the next year. To assist public companies in keeping track of the various filing deadlines, we have prepared a desktop reference calendar that sets forth filing deadlines for many SEC reports. To assist companies with planning capital markets transactions, including IPOs, our calendar also provides the staleness dates for 2019 (i.e., the last date financial statements may be used in a prospectus or proxy statement without being updated).

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The SEC Adopts Strategic Plan for 2018-2022

October 19, 2018 | Posted by Hillary H. Holmes; Brian J. Lane; Elizabeth A. Ising Topic(s): Corporate Governance; Securities Regulation

​On June 19, 2018, the Securities and Exchange Commission (the “SEC") published a draft strategic plan outlining the SEC’s priorities through 2022 (the “Plan Draft"). As previously reported, the Plan Draft comprised three broad goals: focusing on retail investors, increasing innovation, and strengthening performance.

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SEC Division of Corporation Finance Provides Interpretive Relief on New Disclosure Requirement

September 25, 2018 | Posted by Hillary H. Holmes; Michael A. Titera; Ronald O. Mueller Topic(s): Securities Regulation

 

On September 25, 2018, the Division of Corporation Finance of the Securities and Exchange Commission (the “Staff") issued a new Compliance and Disclosure Interpretation (“C&DI") providing transition guidance and relief on reporting requirements under the disclosure update and simplification rules adopted on August 17th, 2018 (the “Final Rules"). As discussed in our recent post (available here), the Final Rules become effective 30 days from publication in the Federal Register, but do not indicate whether the amendments should be applied to periodic reports covering periods ending on or after the effective date or to all periodic reports filed after the effective date. ( As of the date of this posting, the Final Rules have still not been published in the Federal Register.)  The timing is significant because the Final Rules require companies’ quarterly reports on Form 10-Q to include a new statement of changes in stockholders’ equity and to disclose the amount of dividends per share for each class of shares with respect to the interim period. 

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Important Reminders for Upcoming 10-Q Filings

September 13, 2018 | Posted by Ronald O. Mueller; Hillary H. Holmes; Michael A. Titera Topic(s): Securities Regulation

​As calendar year filers begin preparing their Forms 10-Q for the third quarter, there are a few items they should keep in mind.

Potential Impact of SEC’s New Disclosure Update and Simplification Release

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SEC Streamlines Disclosure Requirements as Part of its Overall Disclosure Effectiveness Review

August 27, 2018 | Posted by Hillary H. Holmes; Elizabeth A. Ising; James J. Moloney; Michael A. Titera Topic(s): Miscellaneous; Securities Regulation

On August 17, 2018, the Securities and Exchange Commission (the “Commission") adopted several dozen amendments (available here) to “simplify compliance without significantly altering the total mix of information" (the “Final Rules").  In Release No. 33-10532, the Commission characterized the amended requirements as redundant, duplicative, overlapping, outdated or superseded, in light of subsequent changes to Commission disclosure requirements, U.S. GAAP, IFRS and technology developments.  

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SEC Proposes to Substantially Lighten Financial Disclosures for Issuers and Guarantors of Registered Debt

August 6, 2018 | Posted by J. Alan Bannister; Andrew L. Fabens; Hillary H. Holmes; Peter Wardle Topic(s): Securities Regulation

On July 24, 2018, the Securities and Exchange Commission (the “Commission") proposed amendments to Rules 3-10 and 3-16 of Regulation S-X (available here) in an effort to “simplify and streamline" the financial disclosures required in offerings of certain guaranteed debt and debt-like securities (collectively referred to as “debt securities"), as well as offerings of securities collateralized by securities of an affiliate of the registrant, registered under the Securities Act of 1933, as amended (the “Securities Act"). These proposed changes would, if implemented, facilitate greater speed to market for such public offerings, significantly reducing the Securities Act disclosure burdens for such registrants, as well as reducing the registrant’s disclosure obligations in its subsequent annual and interim reports required under Securities Exchange Act of 1934, as amended (the “Exchange Act"). Taken together, the proposed changes represent a significant liberalization of the current disclosure requirements. 

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SEC Amends “Smaller Reporting Company” Definition to Expand Access to Scaled Disclosure Accommodations

July 6, 2018 | Posted by Hillary H. Holmes; James J. Moloney Topic(s): JOBS Act; Proxy Statements and Annual Meetings; Securities Regulation

​On June 28, 2018, the United States Securities and Exchange Commission (the “SEC") approved amendments to the definition of a “smaller reporting company" (a “SRC").  These amendments will expand the number of registrants qualifying for SRC scaled disclosure accommodations in their SEC filings.  These scaled disclosure accommodations include, among other things, reduced required business, financial and executive compensation disclosures.  A chart  briefly summarizing the SRC disclosure accommodations is attached as Exhibit A.

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The SEC Identifies Priorities in Draft Strategic Plan Through 2022

June 27, 2018 | Posted by Hillary H. Holmes; Brian J. Lane Topic(s): Securities Regulation

On June 19, 2018, the Securities and Exchange Commission (the “SEC") published a draft strategic plan outlining the SEC’s priorities through 2022 (the “2018 Plan"). In the 2018 Plan, the SEC elected to pursue three goals, emphasizing investors, innovation and performance, each of which is summarized below. The 2018 Plan focuses on the “Main Street" investor, responds to new market developments, such as the growth of cryptocurrencies, and improves the regulator’s use of data and analytics.

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The SEC Continues to Modernize and Adapt to the Times

June 12, 2018 | Posted by Hillary H. Holmes; James J. Moloney Topic(s): Miscellaneous; Securities Regulation

​The Securities and Exchange Commission (“the Commission”) recently adopted two rule amendments in its latest effort to synchronize Commission policies with the rapidly developing digital age.

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Strengthening U.S. Public Capital Markets – Recommendations from SIFMA Report

May 11, 2018 | Posted by Hillary H. Holmes; Elizabeth A. Ising; Stewart McDowell; Peter Wardle; James J. Moloney Topic(s): Dodd Frank; JOBS Act; Securities Regulation

On April 27, 2018, the Securities Industry and Financial Markets Association (“SIFMA”), the leading industry group representing broker-dealers, banks and asset managers, along with other securities industry related groups, released a report called “Expanding the On-Ramp: Recommendations to Help More Companies Go and Stay Public” (the “Report”).  In response to the decline in the number of IPOs and the number of public companies generally in the United States over the last twenty years, the Report provides recommendations aimed at reducing perceived impediments to becoming and remaining a public company. As the Report notes, the United States is now home to only about half the number of public companies that existed 20 years ago.  This decline is believed to have had adverse repercussions for the American economy generally, and the jobs market specifically.  In addition, the growth of private capital markets at the expense of public capital markets has raised concerns that individual investors are being marginalized.  More specifically, as many of the most innovative companies in the U.S. stay private longer and raise significant amounts of capital privately, the returns generated by such companies appear to accrue disproportionally to institutional, high net worth and other similar investors.

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Going Public Without an IPO: New NYSE Rules that Expand Options for Direct Listings Create Opportunity and Raise Questions

February 13, 2018 | Posted by Hillary H. Holmes; James J. Moloney Topic(s): Corporate Governance; Securities Regulation

On February 2, 2018, the Securities and Exchange Commission approved a change to the New York Stock Exchange’s (Exchange) listing rules that permit companies to use “direct listings” to list their shares on the Exchange based on having a minimum independent valuation of $250 million and without having completed an underwritten initial public offering (IPO) or having their shares first traded on a private market.  Direct listing will continue to be at the NYSE’s discretion and require that the company have an effective resale registration statement on file with the SEC for at least some amount of its outstanding shares. Direct listings provide an option by which private companies can accomplish three goals without requiring an IPO: (a) make their shares a more attractive currency for merger and acquisition activity, (b) provide greater liquidity for existing shareholders, and (c) increase the value of their shares and employee stock options. The SEC approval comes in the wake of recent commentary by SEC Chairman Jay Clayton that he believes more IPOs are needed, noting they are generally beneficial to the retail investor community to the extent they provide investors with more investment alternatives, more opportunities to invest, and greater liquidity.

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Securities and Exchange Commission Releases Public Statement on Cybersecurity

September 22, 2017 | Posted by Hillary H. Holmes; Lori Zyskowski; Ronald O. Mueller Topic(s): Securities Regulation

On Wednesday, September 20, 2017, Chairman Jay Clayton of the U.S. Securities and Exchange Commission (the “Commission”) released a public statement addressing cybersecurity risks.

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SEC Updates Guidance on Draft Registration Statements

August 21, 2017 | Posted by Hillary H. Holmes; Peter Wardle; Andrew L. Fabens Topic(s): JOBS Act

New SEC Policy Permits the Exclusion of Certain Financial Information from Draft Registration Statements; Additional Detail Provided Regarding Recent Updates to Draft Registration Statement Procedures

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