On September 29, 2010, the SEC amended Regulation FD to remove the express exemption for disclosures of material non-public information to credit rating agencies (former Rule 100(b)(2)(iii) of Regulation FD), as required under Section 939B of the Dodd-Frank Act. This amendment became effective upon its publication in the Federal Register on October 4, 2010.
Securities Regulation
Disclosure of Adviser Conflicts — When Is It Enough?
Investment advisers have a duty to disclose material conflicts of interest to clients. The more difficult question is: "how much disclosure is enough?" In a recent settled enforcement action, the SEC suggests that disclosure of material facts alone may not be sufficient, and that more explicit disclosure is needed when investment advice may result in additional compensation to the adviser. The case is Matter of Valentine Capital Asset Management.
Prospectus Directive amendments – discussion of key changes
London partner Dorothee Fischer-Appelt is the author of "Prospectus Directive amendments – discussion of key changes" [PDF] published in the September 2010 issue of Law and Financial Markets Review (pp. 490-498).
SEC Proposes Rules to Enhance Disclosure of Short-Term Borrowings and Issues Interpretive Release Regarding Disclosure of Liquidity and Capital Resources
On September 17, 2010, the Securities and Exchange Commission ("SEC") unanimously voted to publish for comment proposed rules that would require registrants to increase disclosure of short-term borrowing arrangements in the "Management’s Discussion and Analysis of Financial Condition and Results of Operations" ("MD&A"). The SEC also unanimously voted to issue an interpretive release reiterating its long-standing guidance regarding liquidity and capital resources disclosure requirements in MD&A.
The Annual Risk Assessment Requirement for Investment Advisers: Keeping Your Review Current
Rule 206(4)-7 under the Investment Advisers Act of 1940 (the "Advisers Act") requires registered investment advisers to adopt and implement written policies and procedures that are reasonably designed to prevent violations of the Advisers Act by the adviser and any of its supervised persons within the meaning of Advisers Act section 202(a)(25). The adviser’s policies and procedures must also be reasonably designed to detect and promptly address any violations that occurred. Advisers Act Rule 206(4)-7(b) further requires investment advisers to undertake an annual review to determine the adequacy and effectiveness of their procedures in light of internal and external developments affecting the firm.
Webcast – Implementing the Dodd-Frank Wall Street Reform and Consumer Protection Act
On July 21, 2010, President Barack Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act, the most sweeping financial reform legislation in over a generation. Gibson Dunn panelists discuss the regulatory initiatives in the bill that are likely to be of interest and concern to the wide range of companies affected by the bill.
FASB Extends by 30 Days the Period for Comment on Proposed Changes to U.S. Accounting Standards Governing Loss Contingencies
On August 18, 2010, the Financial Accounting Standards Board ("FASB") announced that it is extending by 30 days to September 20, 2010 the deadline for comments on the FASB’s proposed amendments to the U.S. accounting standards governing the disclosure of loss contingencies, including litigation-related contingencies. Given the broad scope of the FASB’s proposed modifications and the challenges they would pose to financial statement preparers, we encourage companies who have not already commented on the proposal to submit comments by the new deadline.
Financial Accounting Standards Board Issues Proposed Amendments to U.S. Accounting Standards Governing Loss Contingencies
On July 20, 2010, the Financial Accounting Standards Board ("FASB") issued an exposure draft (the "Exposure Draft") containing proposed amendments to Accounting Standards Codification Topic 450-20 (formerly Financial Accounting Standard No. 5), the U.S. Generally Accepted Accounting Principles ("U.S. GAAP") provision dealing with the disclosure of loss contingencies. The proposal would require enhanced disclosure of qualitative and quantitative information about loss contingencies, including litigation-related contingencies.
The Dodd-Frank Act Reinforces and Expands SEC Enforcement Powers
During the midst of the financial crisis, the continued existence, much less powers, of the Securities and Exchange Commission were in doubt. But in the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Commission emerged with expanded jurisdiction over hedge funds, credit ratings agencies, and governance of public companies, among other areas.
Executive Compensation, Corporate Governance and Other Securities Disclosure Provisions in the Dodd-Frank U.S. Financial Regulatory Reform Act
On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act," available here), the most far-reaching financial regulatory reform legislation in decades. The Act affects not only the financial services industry but also all public companies. This Memorandum focuses on the Act’s executive compensation, corporate governance and other securities disclosure provisions applicable to public companies. This Memorandum also discusses the steps that public companies should consider taking now in light of the Act’s provisions. We have included as Exhibit A a chart listing the provisions described in this Memorandum and as Exhibit B the statutory text of these provisions. [1]