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Financial Statements

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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NYSE and Nasdaq Allow More Time for Companies to Adopt Rule 10D-1 Clawback Policies: What to Do Now

June 8, 2023 | Posted by Ronald O. Mueller Topic(s): Compensation Committee; Corporate Governance; Dodd Frank; Executive Compensation; Financial Statements; Proxy Statements and Annual Meetings; Securities Regulation

This week, both the New York Stock Exchange (“NYSE”) and The Nasdaq Stock Market (“Nasdaq”, and together with NYSE, the “Exchanges”) filed amendments with the Securities and Exchange Commission (“SEC”) to provide a delayed effective date for the Exchanges’ proposed listing standards requiring listed companies to adopt clawback policies, as mandated by Rule 10D-1 under the Securities and Exchange Act of 1934.

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SEC Enforcement Action Highlights Importance of Non-GAAP Policies and Disclosure Controls and Procedures

April 17, 2023 | Posted by Michael A. Titera; Andrew L. Fabens; Michael Scanlon; Thomas J. Kim; Ronald O. Mueller; Brian J. Lane Topic(s): Disclosure; Financial Statements; Securities Regulation

​On March 14, 2023, the SEC charged DXC Technology Co. (“DXC") with making material misstatements with respect to its non-GAAP financial performance measures, stating that, DXC “negligently misclassif[ied] tens of millions of dollars of expenses as [transaction, separation and integration-related (“TSI")] costs and improperly exclude[ed] them in its reporting of non-GAAP measures." The SEC’s order also found that DXC, and specifically its controllership function and disclosure committee, failed to maintain “adequate" disclosure controls and procedures relating to DXC’s non-GAAP disclosures, citing the following shortcomings:

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SEC Updates Non-GAAP C&DIs

December 14, 2022 | Posted by Andrew L. Fabens; Ronald O. Mueller; Michael A. Titera Topic(s): Disclosure; Financial Statements; Miscellaneous; Securities Regulation

On December 13, 2022, the staff of the Division of Corporation Finance (the “Staff”) of the Securities and Exchange Commission announced an update to its Compliance and Disclosure Interpretations (“C&DIs”) on Non-GAAP Financial Measures under Questions 100.01, 100.04 – 100.06, and 102.10(a)(b)(c).  Many of the changes memorialize positions the Staff has taken in comment letters or provide additional detail about those positions.

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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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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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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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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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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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