Topic: Corporate Governance

Did You Check The Right Box? New SEC Guidance on Clawback Disclosures

April 16, 2025 | Posted by Gina Hancock; Krista P. Hanvey; James J. Moloney Topic(s): Corporate Governance; Disclosure; Securities Regulation

On April 11, 2025, the Securities and Exchange Commission (the “Commission”) published six new Compliance & Disclosure Interpretations (“C&DIs”) relating to the Form 10-K restatement and clawback analysis check boxes and the related disclosures under Item 402(w) of Regulation S-K available here.

As a refresher, the cover of Form 10-K includes two check boxes—the first one indicates when the financial statements included in the Form 10-K reflect the correction of an error to previously issued financial statements and the second one when those error corrections are restatements that required a clawback recovery analysis under Rule 10D-1(b) of the Securities Exchange Act of 1934 (i.e. pursuant to the registrant’s mandatory clawback policy). In addition, Item 402(w) of Regulation S-K requires registrants to include narrative disclosure regarding the clawback policy analysis in the event of a restatement that covers how the recoverable amount was calculated, the value of any recoverable amount that remains outstanding and whether the registrant is relying on the impracticability of recovery exception (and the justification of such reliance).

Below is a summary of the new C&DIs:

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.

Things To Do This Week: Validate EDGAR Codes

March 19, 2025 | Posted by Michael A. Titera; Mellissa Campbell Duru; Julia Lapitskaya; Ronald O. Mueller; Lori Zyskowski Topic(s): Capital Markets; Corporate Governance; Disclosure; Securities Regulation

Those lucky individuals who are responsible for EDGAR codes (for companies and Section 16 filers) are strongly encouraged to confirm this week that those EDGAR codes, specifically the CCCs (CIK Confirmation Codes) and Passphrases, are both (1) valid AND (2) current. EDGAR codes are valid if they are correct and are current if they have been established or reset since September 2019. Valid and current CCCs and Passphrases will be required to enroll in EDGAR Next via the EDGAR Next dashboard, and after Friday, March 21, the process for obtaining valid and current codes will be more tedious.

SEC Corp Fin Staff Updates Guidance on Lock-Ups, Written Consents and Financing Matters in Tender Offers and Business Combination Transactions

March 7, 2025 | Posted by James J. Moloney; Tull Florey; Mellissa Campbell Duru Topic(s): Corporate Governance; M&A; Miscellaneous; Securities Regulation

On March 6, 2025, the staff of the Division of Corporation Finance (the “Staff”) of the U.S. Securities and Exchange Commission (the “Commission”) published several updates to its Compliance and Disclosure Interpretations (“C&DIs”) relating to merger transactions and tender offers. Key updates are set forth below.

SEC Signals Potential Strategy Shift in Climate Disclosure Rule Litigation

February 14, 2025 | Posted by Lauren M. Assaf-Holmes; Ronald O. Mueller; Lori Zyskowski; Thomas J. Kim; James J. Moloney Topic(s): Corporate Governance; Disclosure; Environmental/Climate Change; ESG; Securities Regulation

On Tuesday, Mark Uyeda, Acting Chairman of the Securities and Exchange Commission (the “SEC”), issued a statement signaling potential updates to the SEC’s position in the ongoing legal challenges to its climate disclosure rule. As previously reported, the SEC stayed its climate disclosure rule last year pending the outcome of the related consolidated litigation before the Eighth Circuit Court of Appeals.

SEC Staff Reinstates Traditional Approach to Interpreting the Shareholder Proposal Rule; New Guidance Rescinds SLB 14L

February 13, 2025 | Posted by Elizabeth A. Ising; Thomas J. Kim; Ronald O. Mueller; Lori Zyskowski Topic(s): Corporate Governance; Environmental/Climate Change; ESG; Proxy Statements and Annual Meetings; Shareholder Proposals

To Our Clients and Friends:

On February 12, 2025, the Division of Corporation Finance (the “Staff”) of the U.S. Securities and Exchange Commission (the “Commission”) published Staff Legal Bulletin No. 14M (“SLB 14M”), which sets forth Staff guidance on shareholder proposals submitted to publicly traded companies under Exchange Act Rule 14a-8. SLB 14M rescinds Staff Legal Bulletin No. 14L (“SLB 14L”) (which was issued in November 2021) and addresses a number of interpretive issues in a manner that draws heavily from prior statements by the Commission interpreting Rule 14a-8.

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.

Preparing for California’s Climate Reporting Legislation – Takeaways from Recent Amendments and Early AB 1305 Reporting Trends

October 25, 2024 | Posted by Elizabeth A. Ising; Aaron K. Briggs; Cynthia M. Mabry; Michael K. Murphy Topic(s): Corporate Governance; Disclosure; Environmental/Climate Change; ESG

Last year, California adopted a trio of laws requiring certain public and private companies to provide climate-related disclosures. As a quick refresher:

Climate Corporate Data Accountability Act (Senate Bill 253). For U.S. companies doing business in California with annual revenues over $1 billion, Senate Bill (“SB”) 253 requires them to report their greenhouse gas (“GHG”) emissions annually beginning in 2026 (for Scope 1 and 2 GHG emissions) and 2027 (for Scope 3 emissions).
Greenhouse Gases: Climate-related Financial Risk (Senate Bill 261). For U.S. companies doing business in California with annual revenues over $500 million, SB 261 effectively requires them to begin biennial reporting in 2025 regarding their “climate-related financial risks” and adopted measures to reduce or adapt to them.
Voluntary Carbon Market Disclosures (Assembly Bill 1305). For companies that make certain environmental claims, adopt particular environmental goals, or purchase, use, market, or sell voluntary carbon offsets in California, Assembly Bill (“AB”) 1305 requires annual website disclosure providing support for those claims, goals, or offsets.

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.