KMK Law Corporate & Securities Blog

SEC Provides Guidance on Earnings Disclosures & COVID-19 Impacts

On April 8, 2020, Jay Clayton, Chairman of the SEC, and William Hinman, Director of the SEC’s Division of Corporation Finance, issued a statement discussing the importance of disclosures related to the COVID-19 pandemic in anticipation of upcoming earnings releases and investor calls. In order to encourage more robust disclosures and shareholder engagement on this topic, the statement outlines, among others, several areas of observation and concern for companies:

• Disclosures should reflect the general ...

On March 25, 2020, the Securities and Exchange Commission (the “SEC”) extended its March 4, 2020 Order (the “Extended Order”) granting exemptions to reporting and proxy delivery requirements for public companies. The Extended Order (described in our advisory here) provides reporting relief for public companies with reports due on or before July 1, 2020.

As the disease known as COVID-19 (the “Coronavirus”) continues to increase its impact on commerce, human health and capital markets, all public companies should assess the impact of the Coronavirus on their SEC filings and shareholder engagement.

It is important for companies to take into consideration the following when preparing annual reports and proxy statements in 2020.

On December 18, 2019, the SEC announced it voted to propose amendments to the definition of “accredited investor” to add new categories of individuals and entities.

On December 19, 2019, the SEC issued guidance regarding the process for applying for confidential treatment of information filed with the SEC. The guidance offers an alternative to the SEC’s rules issued in April 2019 under Regulation S-K Item 601(b) permitting companies to file redacted material contracts without applying for confidential treatment of the redacted information provided the redacted information (i) is not material and (ii) would be competitively harmful if publicly disclosed.

On December 11, 2019, in response to the SEC’s rejection of its initial primary direct listing proposal, the NYSE filed a revised rule change proposal that would allow issuers to sell newly issued primary shares in a direct listing. A direct listing refers to the listing of a privately held company’s stock for trading on a national stock exchange without conducting an underwritten offering, spin-off or transfer quotation from another regulated stock exchange. The proposal would delay, until 90 trading days after the direct listing, the requirement that an issuer have 400 round lot holders at the time of listing.

As we explained in our September 2019 Snapshot, on August 21, 2019, the SEC issued new guidance regarding the role of proxy advisors in the proxy voting process. We expect this guidance to play an important role in the upcoming 2020 proxy season, as the SEC further defines the voting obligations of registered investment advisors and seeks to promote greater accountability on the part of the proxy advisory firms. Read more here.

On November 5, 2019, the SEC proposed amendments to certain procedural requirements and resubmission thresholds under the shareholder proposal rule of Rule 14a-8.

On November 5, 2019, the SEC proposed amendments to its rules governing proxy solicitations to require proxy advisors to provide to their clients more extensive disclosure of material conflicts of interest.