| Posted by Brian J. Lane; James J. Moloney Topic(s): Capital Markets; Corporate Governance; Securities Regulation
Earlier today, the Commission issued a small wave of press releases announcing several new hires at the SEC. Thus initiating the process of filling several key vacancies, including:
We expect more announcements to follow, including a new Director of the Division of Corporation Finance. Stay tuned!
| Posted by Ronald O. Mueller; Stella Kwak; David Korvin Topic(s): Executive Compensation; Securities Regulation
The Division of Corporation Finance (the “Division”) of the Securities and Exchange Commission (the “Commission”) recently updated its interpretive guidance regarding Rule 10b5-1 trading plans. The Division published two new Compliance & Disclosure Interpretations (“C&DIs”), withdrew three previously issued C&DIs, and revised 18 more C&DIs regarding Rule 10b5-1 plans. The updated C&DIs largely align with the Commission’s 2022 amendments to Rule 10b5-1 under the Exchange Act, with many reflecting non-substantive edits to rule references. Below is a summary of the key takeaways from the updated Rule 10b5-1 C&DIs. The updated Rule 10b5-1 C&DIs, including comparisons to previously issued C&DIs that the Commission provided, have been compiled in Annex A.
| 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:
| 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.
| 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.
| 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.
| 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.
| 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.
| Posted by Elizabeth A. Ising; Lori Zyskowski; Ronald O. Mueller; Stella Kwak Topic(s): Disclosure; Proxy Statements and Annual Meetings; Securities Regulation
Among the many new rules and considerations affecting proxy season disclosures this year, one of the more subtle changes affects beneficial ownership disclosure pursuant to S-K Item 403(a). That rule requires companies to report the beneficial ownership of their greater than 5% shareholders “as of the most recent practicable date,” with beneficial ownership being determined in accordance with Exchange Act Rule 13d-3. In years past, all Schedule 13G filers were required to file amendments within 45 days after the end of the calendar year to report any change to their previously reported holdings.
| 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.