KMK Law Corporate & Securities Blog

On September 29, 2018, the Securities and Exchange Commission (the “SEC”) announced that CEO and Chairman of Tesla, Elon Musk, had agreed to settle securities fraud charges brought by the SEC and that Tesla had agreed to settle SEC charges that it failed to have required disclosure controls and procedures covering Mr. Musk’s tweets.

On August 17, 2018, the Securities and Exchange Commission (“SEC”) finalized a series of amendments to its rules and forms with the aim of reducing redundant and outdated disclosure requirements for public companies. Although many of the modifications simply “clean up” references and cross-references that have become outdated due to changes in accounting terminology or other revisions to the SEC’s forms and rules, several of the amendments do serve to remove certain disclosure requirements previously required by the SEC. The summary below outlines those modifications that may be of significance to public companies.

On July 17, 2018, the U.S. House of Representatives passed the “JOBS and Investor Confidence Act of 2018.” This bill is the third piece of the “Jumpstart Our Business Startups (JOBS) Act” legislation, and its aim is to reform capital markets to assist small businesses and entrepreneurs in accessing capital. The bill is set to be voted on by the Senate during the fall and will become effective 90 days after it is signed by the President.

Several companies have asked us about the status of registrations and qualifications of security token offerings (STOs) / initial coin offerings (ICOs) with the Securities and Exchange Commission. There is not much to report.

The United States Supreme Court decided on June 21, 2018, in South Dakota v. Wayfair, that a South Dakota law that requires certain out-of-state vendors to collect and remit sales tax as if the vendor had a physical presence in the State does not violate the Commerce Clause.

On March 7, 2018, the Securities and Exchange Commission (SEC) issued a public statement regarding the risk posed by online platforms that allow trading in digital assets to violate federal securities laws. This statement indicates that the SEC is increasing its focus on platforms that offer such trading and their compliance with applicable securities laws.

On February 20, 2018, the Securities and Exchange Commission (SEC) issued interpretive guidance to assist public companies in preparing disclosures about cybersecurity risks and incidents. This guidance indicates that the SEC is expecting more robust cybersecurity-related disclosures in the filings of public companies and encourages companies to implement comprehensive cybersecurity policies and procedures.