KMK Law Corporate & Securities Blog

On June 5, 2023, the New York Stock Exchange (NYSE) filed Amendment No. 1 to its proposed listing standard related to the Securities and Exchange Commission’s (SEC) Rule 10D-1 (the “Clawback Rule”), extending the effective date to October 2, 2023. On June 6, 2023, The Nasdaq Stock Market LLC (Nasdaq) also filed Amendment No. 1 to its proposed clawback listing standard, delaying the effective date until October 2, 2023.

On Friday, May 12, 2023, the U.S. Chamber of Commerce announced that it had filed a lawsuit against the SEC to prevent implementation of the SEC’s new Share Repurchase Disclosure Modernization rules, which KMK has recently discussed. The Chamber filed in the U.S. Court of Appeals for the Fifth Circuit, a conservative leaning court that has issued several high profile rulings adverse to the Biden administration. 

On March 14, 2023, DXC Technology Company (“DXC”) settled with the Securities and Exchange Commission (“SEC”) for $8 million regarding alleged misleading disclosures in DXC’s public filings. The SEC claimed DXC made misleading disclosures related to its non-GAAP financial performance between 2018 and 2020.

On October 7, 2022, the SEC reopened the public comment periods for eleven proposed rules including, among others, proposed rules relating to the following: the enhancement and standardization of climate-related disclosures for investors; enhanced ESG disclosures for investment funds and investment advisers; cybersecurity breach and risk disclosures; share buyback disclosures; and SPAC projections. The SEC reopened the comment periods after it discovered a technological error had prevented it from receiving certain comments.  While affected comments were largely submitted in August 2022, the error is reported to have occurred as early as June 2021.

On May 2, 2022 the SEC’s Division of Corporation Finance issued a sample comment letter addressing disclosures companies should consider regarding Russia’s invasion of Ukraine. The SEC Staff believes companies should provide detailed disclosures of their direct or indirect exposure to Russia, Belarus, and/or Ukraine including through operations, investments, and potential cybersecurity and supply chain risks. A link to the sample letter is here.

The sample comment letter lists several topics subject to disclosure consideration the SEC Staff will focus on:

• Companies ...

On March 21, 2022, the Securities and Exchange Commission (“SEC”) at a virtual open meeting proposed rules to expand and standardize issuers’ climate-related disclosures. The proposed rules would utilize mandatory, prescriptive disclosures in periodic reports and registration statements to address topics related to greenhouse gas (“GHG”) emissions and global climate change. The Commission acknowledged that in 2010, the SEC required disclosure of climate-related impacts on issuers’ businesses but since then, awareness of climate-related incidents, GHG ...

This is an update to KMK’s original blog post on December 4, 2020.

On December 1, 2020, Nasdaq filed a rule proposal with the U.S. Securities and Exchange Commission that would require listed companies to have, or explain why their boards do not include, diverse directors. In a response to comments from the SEC, Nasdaq filed an amendment to the rule proposal on February 26, 2021. The Nasdaq proposal needs SEC approval to take effect.

In a notice posted on its website on March 10, 2021, the SEC said it would take additional time to rule on the Nasdaq proposal, while also seeking further ...

On Dec. 1, 2020, Nasdaq filed a rule proposal with the U.S. Securities and Exchange Commission that would require listed companies to disclose board diversity statistics using Nasdaq’s Board Diversity Matrix. Nasdaq would require companies to provide this disclosure in proxy materials or on company websites within one year of the SEC’s approval of the rules. The rules also would require listed companies to have, or explain why their boards do not include, diverse directors as follows:

• All listed companies would be expected to have one diverse director within two years of the ...

On November 2, 2020, the Securities and Exchange Commission adopted rule amendments intended to increase opportunities for private companies to raise capital, including by setting higher limits on certain private offerings.  The SEC also simplified certain rules governing private offerings relating to investor communications and otherwise expanding investment opportunities.  In addition to expanding access to capital for private issuers, the intent of these amendments is to make it simpler for issuers to comply with increasingly complex SEC rules, including by eliminating ...

On October 7, 2020, the SEC proposed a limited, conditional exemption from broker registration requirements for "finders" who assist issuers with raising capital in private markets from accredited investors. Finders identify and often solicit potential investors in order to connect issuers with investors in private placements of securities. The proposal responds to the lack of clarity regarding the regulatory status of finders which has developed through case law, no action letters and other SEC guidance.