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Securities : Newsstand
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Dodd-Frank Next Steps..., Financial Services Reform Alert, August 16, 2010.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act") represents the most dramatic revision of the U.S. financial regulatory framework since the Great Depression.
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Municipal Securities Provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Financial Services Reform Alert, by Stacey H. Crawshaw-Lewis, Deanna L. Gregory, Carol Juang McCoog. August 2, 2010.
On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). The Dodd-Frank Act includes several provisions of potential interest to participants in the municipal bond market. The Dodd-Frank Act will require registration and regulation of previously unregulated swap and other municipal advisors. The Dodd-Frank Act also addresses the composition and authority of the Municipal Securities Rulemaking Board (the “MSRB”) and funding of the Governmental Accounting Standards Board (“GASB”). Finally, the Dodd-Frank Act directs a number of studies regarding the municipal securities market, including a study to address “the advisability of the repeal or retention of” the Tower Amendment.
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Financial Reform Bill Strengthens Regulation, Expands Potential Liability of Credit Rating Agencies, Investment Management Alert, by Mary C. Moynihan, Anthony R.G. Nolan, Clair E. Pagnano, Gwendolyn A. Williamson. July 22, 2010.
On July 21, 2010, U.S. President Barack Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") following earlier passage of the legislation by a 237 to 192 vote in the U.S. House of Representatives and a 60 to 39 vote in the U.S. Senate. Dodd-Frank represents Congress's response to what the House Committee on Financial Services calls "years without accountability for Wall Street [and] the worst financial crisis since the Great Depression."
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A New Era: Depository Institutions and Their Holding Companies Face a Deluge of Regulatory Changes, Financial Services Reform Alert, by Rebecca H. Laird, Sean P. Mahoney, Collins R. Clark. Originally published on July 20, 2010. Updated on July 22, 2010.
On July 21, 2010, President Barack Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act” or “Act”), which restructures the regulatory framework for most banking organizations. Although the full impact of the Dodd-Frank Act cannot be assessed until implementing regulations are released, depository institutions and their affiliates face new regulators, increased activities restrictions and capital requirements, and numerous other fundamental changes in how they are regulated.
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“Originate-to-Distribute” Lives on in Securitizations of Plain Vanilla Residential Mortgages: The Securitization Reform Provisions of the Dodd-Frank Act, Financial Services Reform Alert, by Steven M. Kaplan, Sean P. Mahoney, Anthony R.G. Nolan. July 21, 2010.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act" or the "Act") constitutes the most sweeping financial reform package since the 1930s. Title IX of the Dodd-Frank Act ("Title IX"), entitled the "Investor Protection and Securities Reform Act of 2010" enacts a grab bag of substantial changes to capital markets regulation and practices in the hope of putting back in their bottles the twin genies of moral hazard and lax regulation that are widely viewed as the tinder that sparked the great credit conflagration of 2008. Subtitle D of Title IX, entitled "Improvements to the Asset-Backed Securitization Process" ("Subtitle D"), has been of particular interest to capital markets participants both because practices in securitization markets are widely credited with contributing uniquely to the credit crisis and because of the sense of many that the resuscitation of robust securitization markets is one of the key predicates to an economic recovery.
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Regulation of Short Selling in the U.S., The Review of Securities & Commodities Regulation, by Kay A. Gordon. July 21, 2010.
Posted with permission.
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Dodd-Frank Act Includes Immediate Change to “Accredited Investor” Definition for Natural Persons, Financial Services Reform Alert, by Kristy T. Harlan, Vincent J. Pisano. July 21, 2010.
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HVCC’s Sunset and Other Appraisal Reforms on the Horizon, Financial Services Reform Alert, by Nanci L. Weissgold, Kerri M. Smith. July 19, 2010.
Congress is poised to eliminate the contentious Home Valuation Code of Conduct, (the “HVCC”), and with the HVCC set to sunset, more expansive (and expensive) appraisal reforms are on the horizon. Tucked within the massive Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) are provisions that will strengthen appraiser independence and enforcement, regulate the use of broker price opinions (“BPOs”), set standards for pricing of appraisals and appraiser valuation model products (“AVMs”), and subject appraisal management companies (“AMCs”) to potential federal and state oversight.
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The Resolution of Systemically Important Nonbank Financial Companies… Will It Work?, Financial Services Reform Alert, by Stanley V. Ragalevsky, Sarah J. Ricardi. July 16, 2010.
One of the glaring problems exposed by the recent financial crisis has been the absence of supervisory authority to deal effectively with the insolvency or collapse of significant, nonbank financial companies. While bank regulators have long been empowered to close and liquidate insolvent banks to protect the public, there was no comparable authority vested in any financial services regulator to close and liquidate insolvent bank holding companies or other kinds of financial companies. To make matters worse, when several systemically important financial companies were on the verge of collapse in September 2008, they were deemed "too big to fail" and given significant government assistance. Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act" or the "Act") addresses the absence of regulatory authority to liquidate systemically important, nonbank financial companies by creating an "orderly liquidation authority" ("OLA") process to allow the Treasury Secretary to close and the Federal Deposit Insurance Corporation ("FDIC") to wind up these companies.
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Loan Servicing Déjà Vu, Financial Services Reform Alert, by Steven M. Kaplan, Kerri M. Smith, Jonathan D. Jaffe. July 14, 2010.
Loan servicers that are reeling from ever changing state laws and HAMP requirements can breathe a sigh of relief that the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) left most of its ammunition for other segments of the financial services industry. Title XIV of the Dodd-Frank Act, entitled Mortgage Reform and Anti-Predatory Lending Act (the “Mortgage Reform Act” or the “Act”), would impose new restrictions and requirements on the residential mortgage industry, but in many cases these changes piggyback the regulations issued by the Federal Reserve Board (“FRB” or “the Board”) in 2008. Nevertheless, there are changes that could have a material impact on loan servicers and open them up to a federal cause of action with a private right of enforcement.
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Financial Regulatory Reform Increases Federal Involvement in Insurance, Financial Services Reform Alert, by Diane E. Ambler, András P. Teleki, Collins R. Clark. July 13, 2010.
Two provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (H.R. 4173) specifically target the insurance industry and are intended to promote a higher level of uniformity in the U.S. insurance industry regulatory landscape. First, the Federal Insurance Office Act of 2010 (“FIO Act”) creates a new Federal Insurance Office (“FIO”) within the Department of the Treasury and signals the beginning of a new era of federal involvement, at least at the macro level, in the U.S. insurance industry. Significantly, the FIO Act does not include a federal insurance charter provision, long sought by many in the insurance industry, and the states will remain the primary insurance regulatory authority. Second, the Nonadmitted and Reinsurance Reform Act of 2010 (“NRRA”) changes how authority over some forms of insurance is allocated among the states.
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Increased Regulation of U.S. and Non-U.S. Private Fund Advisers Under the Dodd-Frank Act, Financial Services Reform Alert, by Edward G. Eisert, Rebecca H. Laird, Cary J. Meer, Mark D. Perlow, . The authors acknowledge the assistance of associates Megan Munafo and Jarrod Melson in the preparation of this Alert. July 9, 2010.
The long-awaited financial reform bill, now entitled The Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Bill" or the "Bill"), appears to be moving toward passage by the Senate and enactment into law later this month. This Alert provides an overview of those provisions of the Dodd-Frank Bill that are likely to most directly affect investment advisers to hedge, private equity and venture capital funds, wherever such advisers and funds are domiciled. Please see the K&L Gates Newsstand and the K&L Gates Global Financial Market Watch Blog for additional background and detailed analysis about the legislative history of the Dodd-Frank Bill.
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Preemption for National Banks and Federal Thrifts After Dodd-Frank: Answers to the Ten Most Asked Questions, Financial Services Reform Alert, by David L. Beam. July 9, 2010.
The last ten years have been a period of consistent expansion of federal preemption for national banks and federal thrifts. That period of expansion will come to a grinding halt if the Senate passes and President Obama signs the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act” or the “Act”), which most observers expect to happen shortly after the Senators return from recess on July 12. (For more information on the Dodd‑Frank Act, see the other alerts in the K&L Gates alert series, available here.)
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New Executive Compensation and Governance Requirements in Financial Reform Legislation, Financial Services Reform Alert, by James E. Earle. July 7, 2010.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”), while delayed as the Senate leadership searches for votes, is almost certain nevertheless to be enacted in mid-July 2010. While the Act’s primary purpose is to broadly reform the regulation of the financial services industry, within the massive text of the Act lurk new requirements that may impact executive compensation and corporate governance practices at most public companies, not just banks. This alert highlights these key executive compensation and governance changes.
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Consumer Financial Services Industry, Meet Your New Regulator, Financial Services Reform Alert, by Melanie H. Brody, Stephanie C. Robinson. July 7, 2010.
While the 2,319-page, sixteen-title Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank Act") imposes new regulatory requirements on virtually every sector of the financial industry, the centerpiece of the Dodd-Frank Act from a consumer protection standpoint is the creation of a consumer financial protection watchdog. The new agency will be called the Bureau of Consumer Financial Protection ("Bureau") and will be created pursuant to Title X of the Dodd-Frank Act, entitled the Consumer Financial Protection Act of 2010 ("CFPA" or "Act"). Its main goal will be to protect consumers. Based on an idea advocated by Harvard Law School professor Elizabeth Warren, the Bureau will have exceptionally wide-reaching powers over providers of consumer financial products and services and vast implications for the financial industry. As we have reported in prior alerts, the creation of this new agency will fundamentally change how financial products and services are regulated in the United States.
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UK Bribery Act 2010: Companies doing business in the UK face strict liability for corrupt payments, but effective compliance measures can negate liability., Foreign Corrupt Practices Act (FCPA) Alert, by Matt T. Morley, Robert V. Hadley, Laura Atherton. June 2010.
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Approaching the Home Stretch: Senate Passes “Restoring American Financial Stability Act of 2010”, Financial Services Reform Alert, June 2010.
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FINRA Streamlines Clearance Process for Certain Shelf Offerings Benefiting Smaller Issuers, Securities Alert, by Michael A. Hedge, Shoshannah D. Katz. March 8, 2010.
Effective March 1, 2010, the Financial Industry Regulatory Authority (FINRA) announced a new approval process whereby underwriters and placement agents may utilize a "Same Day Clearance" procedure to obtain the requisite clearance from FINRA prior to the launch of certain offerings made from shelf registration statements, thereby enabling some smaller issuers to access market opportunities more efficiently. However, this procedure is not available for all shelf offerings, and, in some cases, may not be in an issuer's best interest to utilize.
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SEC Amends E-Proxy Rules, Securities Alert, by Chris K. Visser. March 4, 2010.
On February 22, 2010, the Securities and Exchange Commission
(the "SEC") approved amendments to its notice and access (e-proxy) rules to provide greater flexibility regarding the format of the Notice of Internet Availability of Proxy Materials (the "Notice") that is delivered to shareholders and to allow for an explanation of the reasons for the use by the company of the e-proxy rules and the process of receiving and reviewing proxy materials and voting under the e-proxy rules.
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SEC to Hold Seminar on XBRL Reporting Compliance, Securities Alert, by Vincent J. Pisano, Phillip J. Kardis II. February 26, 2010.
On February 23, 2010, the Securities and Exchange Commission (“SEC”) announced that it will conduct a public seminar on March 23, 2010, to provide assistance to companies and preparers of financial reports regarding compliance with the SEC’s rules requiring financial reports to be filed using eXtensible Business Reporting Language (“XBRL”).
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K&L Gates Expands Corporate Practice with Miami Partner, February 11, 2010.
K&L Gates welcomes Jahan Islami as a partner in its Miami office.
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The Listing Rules - A New Regime, Securities Alert, by Alex R. Gibson. February 10, 2010.
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SEC Posts Guidance on Climate Change Disclosure, Securities Alert, by Stephen K. Rhyne, Sean M. Jones, Kristy T. Harlan. February 3, 2010.
On Tuesday, February 2, 2010, the Securities and Exchange Commission (SEC) published its interpretive release providing guidance to public companies regarding disclosures to be made in SEC filings about the consequences of climate change. As described in our January 28 alert "SEC Approves Interpretive Release on Climate Change Disclosure," the SEC had approved the release at its open meeting on January 27, 2010. In addition to highlighting areas where climate change may trigger disclosure requirements, as described in our earlier alert, the interpretive release also provides a more complete analysis of the SEC's view of the obligations of public companies, and the process to be undertaken by them, regarding climate change-related disclosure.
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SEC Adopts Amendments to the Proxy Rules Concerning Disclosure of Executive Compensation and Corporate Governance, Securities Alert, by Phillip J. Kardis II, Vincent J. Pisano, Douglas J. Ellis. December 22, 2009.
On December 16, 2009, the Securities and Exchange Commission (the “SEC”) adopted amendments (the “Amendments”) to its executive compensation and corporate governance disclosure requirements. The Amendments are effective on February 28, 2010. Accordingly, many public companies face significant new disclosure requirements for the 2010 proxy season. Specifically, public companies now must begin considering new or expanded discussion of:
- Compensation policies for all employees that may present material risks.
- Stock option and other equity awards for named officers and directors.
- Director and nominee qualifications.
- Board leadership structure and role in risk oversight.
- Compensation consultants.
- Accelerated Reporting of Shareholder Votes on Form 8-K.
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K&L Gates’ Global Government Solutions Help Businesses Deal with Government’s Expanding Role, October 21, 2009.
K&L Gates has launched a Global Government Solutions initiative to assist clients in managing the threats and opportunities presented by government authorities around the world.
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K&L Gates Launches Capital Markets Reform Group, June 24, 2009.
International group provides expanded services and insights to firm clients as new capital markets regulatory reform measures are introduced.
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Eighth Circuit Upholds Gartenberg, Requires Comparison with Institutional Account Fees, Investment Management Alert, by John W. Rotunno, Kenneth E. Rechtoris, Todd E. Pentecost, Jeffrey B. Maletta, Nicholas G. Terris. April 14, 2009.
Close on the heels of the Supreme Court's decision to grant review of Seventh Circuit case addressing the substantive standard in excessive fee cases under Section 36(b) of the Investment Company Act of 1940, the Eighth Circuit Court of Appeals has weighed in with its view of the statute in Gallus v. Ameriprise Financial, Inc., No. 07-2945, 2009 WL 928920 (8th Cir. April 8, 2009). In the most significant aspect of its decision the Eighth Circuit concluded that a lower court had erred in rejecting, for purposes of a Section 36(b) analysis, a comparison between fees charged to an investment adviser's institutional clients and those charge to its investment company clients.
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REIT Update: Top Developments in 2008, Corporate and Tax Alert, by Phillip J. Kardis II, Thomas J. Lyden, Roger S. Wise, Anthony Green. February 3, 2009.
The top tax and securities law developments affecting real estate investment trusts (REITs) in 2008.
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Corporate/Securities Commentary, It May Be the Information Superhighway, But Can it Deliver “Fair Disclosure”?, Corporate Alert, by Phillip J. Kardis II. January 7, 2009.
Securities and Exchange Commission offers additional guidance on the use of company websites in meeting Regulation FD disclosure requirements.
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Corporate/Securities Commentary, Antifraud, the Internet, Your Web Site, and the Blogosphere, Corporate Alert, by Phillip J. Kardis II. January 7, 2009.
To encourage the use of the Internet as an information delivery tool while protecting investors against fraud, the Commission, in 2000, issued systematic guidance on the electronic delivery of disclosure documents and company liability for their Web site’s content. Since the 2000 Electronic Release, company Web sites have continued to progress to include company-sponsored blogs and shareholder forums as well as variety of other information of interest to investors – information produced both by the company and third-parties. With the release of Commission Guidance on the Use of Company Web Sites in August 2008, the Commission has revisited a variety of issues with respect to the application of the antifraud provisions of the Federal securities laws to company Web sites.
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SEC Changes Foreign Private Issuer Registration Exemption, Corporate Alert, by Phillip J. Kardis II, Lorraine Massaro, Anand D. Nair, Anthony Green. December 12, 2008.
Review of SEC's recent amendment to Rule 12g3-2(b) of the Securities Exchange Act exempting certain foreign private issuers from registering securities under the Securities Exchange Act.
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In Re Loral Space and Communications Inc. Consolidated Litigation, by David S. Wolpa. December 2008.
On December 11, 2008, David S. Wolpa spoke about the Delaware Chancery Court's decision in In Re Loral Space and Communications Inc. Consolidated Litigation to the Corporate Practice Committee of the Chicago Bar Association's Young Lawyers Section.
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The Evolution of Actively Managed Exchange-Traded Funds, The Review of Securities & Commodities Regulation, Vol. 41 No. 8, by Stacy L. Fuller. April 16, 2006.
Enormously popular with the public, ETFs are evolving from index-based to more actively traded investment vehicles. The author traces this development and discusses the issue raised by recent proposals for more actively traded ETFs that are pending before the SEC. Posted with permission.
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SEC Green-Lights First Actively Managed ETFs, Investment Management Alert, by Stacy L. Fuller, Richard M. Phillips. February 20, 2008.
Two weeks ago, the SEC signaled that it is ready to approve the first actively managed exchange-traded funds (“ETFs”). As a result, such ETFs can be expected to be up and running by the end of this month.
This alert identifies some of the key differences between these new ETFs and their index-based predecessors as well as the potential issues created by such differences. It identifies the sponsors of the actively managed ETFs that received the green light from the SEC and briefly describes each of their products. The alert closes with a few observations on the market’s and the industry’s possible reaction to these new ETFs.
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Bell, Boyd & Lloyd Opens San Diego Office, A Bell, Boyd & Lloyd press release, February 2008.
Bell, Boyd & Lloyd (now K&L Gates) will expand its corporate, venture capital and intellectual property practices with the opening of a San Diego office that will serve as the center for the law firm's Life Sciences Group. Opening initially with thirteen attorneys and Ph.D.-credentialed technical specialists who have substantial scientific and business backgrounds, the office will offer corporate, patent procurement and patent portfolio management services to bio-pharma and other venture-funded and emerging companies.
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Marketing to Senior Citizens Through "Senior Professional" Designations, Kennedy Covington Publication, January 2008.
In our most recent bulletin, we reported that state securities investigators were ramping up their efforts to pursue sellers of variable annuities and equity-indexed annuities on the grounds that some of these sellers were acting as unregistered investment advisers. Since many annuity products are marketed to senior citizens, state and federal securities regulators have also expressed their concerns about the increasing number of potentially misleading, professional sounding “senior” designations that some financial services salespersons are using to enhance their credibility with senior citizens by conveying the appearance of professional specialization or a higher educational degree pertaining to senior citizen financial issues. In order to aid consumers in determining the extent of qualifications (if any) needed to earn such designations, FINRA, which does not approve or endorse any professional designation, has posted such guidance on its website at http://apps.finra.org/datadirectory/1/prodesignations.aspx. FINRA further notes that Rule of Conduct 2210 specifically prohibits brokerage firms and brokers registered with FINRA from referencing nonexistent or self-conferred degrees or designations, or referencing legitimate degrees or designations in a misleading manner.
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SEC Adopts Revisions to Rules 144 and 145 to Shorten Holding Period for Affiliates and Non-Affiliates, Securities, Investment Management, and Hedge Funds Alert, by Cary J. Meer, Deborah A. Linn, Peter C. Farrand. December 18, 2007.
The Securities and Exchange Commission recently adopted amendments to Rules 144 and 145 under the Securities Act of 1933, as amended, that will take effect on February 15, 2008. The amendments to Rule 144 represent the most significant changes to Rule 144 since 1997. The stated purpose of these amendments is to increase the liquidity of privately sold securities and decrease the cost of capital for all issuers without compromising investor protection. Please see the attached alert for further details.
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Recent SEC Developments, Los Angeles chapter of Society of Corporate Secretaries & Governance Professionals, by Katherine J. Blair. September 20, 2007.
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The SEC's New Rules on Internet Availability of Proxy Materials Provide Companies with Proxy Delivery Options, Securities Alert, by Kristen L. Stewart, Jeffrey W. Acre. August 24, 2007.
Following the SEC’s recent adoption of rules on the Internet availability of proxy materials, public companies will need to consider a number of issues in determining how they will comply with the new rules. While the possibility of significant cost savings associated with the new “notice only option” for delivery of proxy materials may tempt some companies to rely heavily on Internet availability, potential pitfalls related to this option are likely to cause other companies to continue to mail hard copies of proxy materials in the traditional manner. In either case, the new rules raise new compliance issues which companies must address during the course of their proxy solicitation planning.
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SEC Proposes Revisions to Limited Offering Exemptions Under
Regulation D, Securities, Investment Management, Hedge Funds and Alternative Investments Alert, by Cary J. Meer, Deborah A. Linn, Jill L. Ehrlich, Peter C. Farrand. August 8, 2007.
At its open meeting on May 23, 2007, the Securities and Exchange Commission proposed several revisions to Regulation D under the Securities Act of 1933, as amended. If enacted, the revisions would establish a new exemption from registration under Regulation D for “large accredited investors” which would allow for limited advertising; revise the definition of “accredited investor” under Regulation D; reduce the time period required by the integration safe harbor for Regulation D offerings; provide uniform disqualification provisions for all of the exemptions under Regulation D; and aim to ease the burden and cost of preparing and filing a Form D with the SEC.
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Bell Boyd Represents LKQ Corporation in Keystone Acquisition, A Bell, Boyd & Lloyd press release, July 2007.
Bell, Boyd & Lloyd (now K&L Gates) is serving as exclusive outside counsel to LKQ Corporation (Nasdaq: LKQX) in the company's $811 million cash acquisition of Keystone Automotive Industries, Inc. (Nasdaq: KEYS).
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SEC Considers Proposed Revisions to Rules 144 and 145 to Shorten Holding Period for Affiliates and Non-Affiliates, Securities, Investment Management and Hedge Funds Alert, by Cary J. Meer, Deborah A. Linn, Peter C. Farrand. June 2007.
The Securities and Exchange Commission has proposed several revisions to Rules 144 and 145 under the Securities Act of 1933 that are intended to ease the burden and cost of complying with Rules 144 and 145 for issuers and securities holders, increase the value and liquidity of restricted securities, and limit the regulatory restrictions governing the resale of restricted securities. These proposals include reducing the minimum “holding period” under Rule 144 for a certain category of restricted securities (subject to a tolling provision), limiting the restrictions and conditions applicable to non-affiliate securities holders under Rule 144, eliminating Rule 144’s “manner of sale” requirements with respect to the sale by affiliates of debt securities, and eliminating the presumed underwriter provisions under Rule 145, except with respect to certain transactions involving shell companies. The proposed amendments are of particular importance to holders of restricted securities and persons who engage in transactions that fall within the scope of Rule 145. This alert summarizes the key aspects of the SEC’s proposed revisions to Rules 144 and 145.
The full text of the SEC’s detailed release (Release No. 33-8813) concerning the foregoing proposals is available on the SEC website at http://www.sec.gov/rules/proposed.shtml.
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U.S. Supreme Court Reinforces Antitrust Immunity of Securities Firms, Securities Enforcement Alert, by Glenn R. Reichardt. June 2007.
On June 18, 2007, the U.S. Supreme Court ruled, in Credit Suisse Securities (USA) LLC v. Billing (No. 05-1157), that antitrust claims could not be pursued by investors against ten leading investment banks that were accused of engaging in anticompetitive conduct when allocating shares of jointly underwritten initial public offerings (IPOs) during the tech boom in the late 1990s. This client alert discusses the U.S. Supreme Court ruling.
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Arrival of New York Partner Builds Out K&L Gates’ Finance Practice, April 30, 2007.
Tony Nolan has joined K&L Gates as a partner in the firm's finance practice.
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Can Smaller Companies Use Window Shop Provisions in M&A Transactions?, K&L Gates Corporate, M&A and Securities Alert, by William Gleeson, Chris K. Visser. March 2007.
A significant opinion involving Revlon duties issued by the Delaware Court of Chancery brings into question, for directors of smaller companies, a familiar technique used to satisfy the directors’ duty of care in M&A transactions – the use of a “window shop” provision to allow for a post-signing market check.
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SEC Adopts Final Voluntary E-Proxy Rules and Proposes Mandatory Use of New Rules in the Future, Kennedy Covington Publication, February 6, 2007.
The SEC recently adopted final rules relating to the Internet availability of proxy materials. These final rules permit (but do not require) companies to disseminate proxy materials to shareholders by posting them on the Internet and providing shareholders with a notice of their availability on the Internet.
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Bank Accounts - Civil Recovery, Butterworths Journal of International Banking and Financial Law, by Jonathan Lawrence. February 2007.
Case report on whether a claim for a civil recovery order should proceed where the persons against whom the order was sought had not been prosecuted.
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Bank Share Security, Butterworths Journal of International Banking and Financial Law, by Jonathan Lawrence. February 2007.
Case report on whether a company which is the subject of share security could amend and exercise powers under its articles to prohibit a bank from perfecting its security.
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SEC Adopts Amendments to Executive Compensation Disclosure Rules, Kennedy Covington Publication, January 9, 2007.
On December 22, 2006, the SEC adopted amendments to the new executive compensation disclosure rules that it adopted in July 2006. The changes are designed to more closely align the reporting of equity awards with the accounting treatment required under FAS 123R. These amendments were adopted as interim final rules and are effective for the current year.s proxy season. The SEC is soliciting comments on these rules, so there could nonetheless be more changes to come.
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Bank as Security Trustee, Butterworths Journal of International Banking and Financial Law, by Jonathan Lawrence. January 2007.
Case report on whether a bank security trustee should accept a direction or exercise its own judgment.
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SEC to Propose New Interpretive Guidance on Sarbanes-Oxley 404, Preston Gates & Ellis Corporate/Securities Alert, by William Gleeson, Richard A. Kirby, Brendan R. McDonnell, Eric Simonson, Chris K. Visser, Byron W. Dailey, Raymond L. Veldman, Jeffrey A. Shady. December 15, 2006.
On December 13, 2006, the Securities and Exchange Commission ("SEC") voted to propose new interpretive guidance to be used by management of public companies in their evaluation of internal controls over financial reporting under Section 404 of the Sarbanes-Oxley Act. The SEC has not yet released the text of the proposed guidance, but an SEC press release and a speech by a Commissioner indicated that the guidance would provide management with increased flexibility in implementing Section 404. The interpretive guidance would allow management to focus on risk and materiality, based on the particular complexities and size of the company.
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Preston Gates & Ellis LLP Names 15 New Partners, November 30, 2006.
Preston Gates & Ellis LLP, announces that it named 15 new partners in its Seattle, San Francisco, Spokane, Washington, D.C. and Beijing offices.
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Employers Should Beware of Broad Employee Indemnification, Preston Gates & Ellis Publication, by Jennifer M. Coughlin, Peter E. Moye, Steven R. Peltin, Todd Reuter, Joan M. Travostino, Douglas S. Parker, Kathleen O. Peterson. November 9, 2006.
Many companies indemnify employees against claims arising out of employment. Those indemnification obligations routinely arise under articles of incorporation or by-laws, or may be part of executive employment agreements. As one company recently learned to its dismay, the wording of documents creating such indemnity obligations must be precise.
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SEC Amends Tender Offer "Best-Price Rule", Preston Gates & Ellis Publication, by William Gleeson, Chris K. Visser, Richard A. Kirby, Eric Simonson, Raymond L. Veldman. November 3, 2006.
On November 1, 2006, the Securities and Exchange Commission ("SEC") issued a release setting forth amendments to the "best-price rule" contained in Rules 14d-10(a)(2) and 13e-4(f)(8)(ii) under the Securities and Exchange Act of 1934. These amendments clarify that the best-price rule only applies to consideration offered and paid for securities tendered in a tender offer — and not to employment compensation arrangements. These amendments apply to both third party and company tender offers.
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New SEC Rules Enlarge Scope of Funds of Funds, Wall Street Lawyer, by Mark D. Perlow, George Zornada, Helen Kuo. 2006.
Funds of funds are increasingly significant investment vehicles for individual investors seeking ease and efficiency in a sometimes daunting marketplace, as well as for investors pursuing sophisticated strategies through diversification. This article deal with those funds. Posted with permission.
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Hard Rules for Soft Dollars, NCSP Currents, by Mark D. Perlow, Helen Kuo. September-October, 2006.
On July 18, 2006, the SEC issued the final version of its most recent interpretive release on soft dollars. The Release seeks to clarify the scope of Section 28(e) of the Securities Exchange Act of 1934, which provides a “safe harbor” from claims of breach of fiduciary duty for money managers that use client commissions to purchase “brokerage and research services” from broker-dealers. Posted with permission.
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SEC Adopts Final Rules Changing Form 8-K Reporting of Executive Compensation Matters, Executive Compensation/Securities Alert, by Douglas J. Ellis. August 2006.
Responding to concerns that the 2004 revisions of the Form 8-K reporting requirements led to an unnecessary increase in the number of filings relating to for executive and director compensation matters, the SEC recently adopted changes to the disclosure rules for such matters.
The revised Form 8-K rules are intended to focus executive and director compensation disclosure on matters that are deemed "unquestionably and presumptively material" to investors. The new rules will be effective later this year.
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The SEC's New Executive and Director Compensation and Related Party Disclosure Rules: A Guide for Companies and Compensation Committees, Executive Compensation/Securities Alert, by Douglas J. Ellis, Paul C. Cancilla, Richard E. Wood. August 2006.
A cornerstone of the SEC's efforts to increase the transparency of executive compensation practices of public companies is the agency's sweeping revision of the disclosure requirements applicable to executive and director compensation, as well as the disclosure of certain related party transactions. On August 11, 2006, the SEC issued a 436-page release containing the final rules on these subjects. The Alert discusses in detail the new requirements, including disclosure of stock option grant practices, the Compensation Discussion & Analysis, the use of total compensation concepts and the expanded use of tables, as well as the changes to the existing tables and related party disclosure requirements. The Alert also provides a list of practical steps that companies can take to begin the process of complying with the new rules.
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SEC Offers Further Relief for Smaller Public Companies and Many Foreign Private Issuers from Section 404 Compliance, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Chris K. Visser, Eric Simonson. August 9, 2006.
The SEC issued two releases in its effort to grant smaller public companies, many foreign private issuers, and newly public companies additional time for compliance with Section 404 of the Sarbanes-Oxley Act of 2002. The relief is in furtherance of the "next steps for Sarbanes-Oxley implementation" announced by the SEC on May 17, 2006, and includes some new initiatives not previously announced.
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SEC Adopts New Executive Compensation Disclosure Rules, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by Richard B. Dodd, William Gleeson, Chris K. Visser. July 27, 2006.
The Securities and Exchange Commission ("SEC") unanimously voted on July 26th to approve proposed new disclosure rules relating to executive officer and director compensation, related person transactions, director independence and other corporate governance matters, and security ownership of officers and directors.
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Disney: The Delaware Supreme Court Speaks, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by Richard B. Dodd, William Gleeson, David J. Perry, Eric Simonson. June 14, 2006.
On June 8, the Delaware Supreme Court issued its decision ending the long-running and much-followed litigation involving, among other things, whether the directors at The Walt Disney Company breached their fiduciary duties in connection with the employment and later termination of employment of Michael Ovitz. In re The Walt Disney Co. Deriv. Litig., Del. No. 411, 2005 (June 8, 2006).
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New Regulations Specify Retirement Plan Trading Prohibition and Notice Requirements During Blackout Periods Under Sarbanes-Oxley Act, Preston Gates & Ellis Employment & Labor Alert, by Deirdre C. Thomas. June 6, 2003.
Originally published in the Employment & Labor Law Department Update Spring 2003
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K&LNG assists in designing new compliance rules for electronic settlement of Reg S securities on AIM, by Jeremy J. Landau, Owen E. Waft, Alan J. Berkeley. June 2006.
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Valuation of Stock for Options and SARs: Recent Guidance under Section 409A of the IRC, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by Michael C. Ormsby, Robert D. Starin, David J. Perry. May 26, 2006.
Section 409A of the Internal Revenue Code imposes burdensome tax consequences (including acceleration of income recognition and the application of a 20% penalty) on recipients of certain types of deferred compensation. This deals with Section 409A.
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Preston Gates & Ellis Hires Five New Associates, Two Of Counsel, April 1, 2006.
Preston Gates & Ellis LLP announces that it has added seven attorneys in its Seattle, Washington, D.C., and Hong Kong offices.
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Whose Workforce is it Anyway? The WARN Act in the M&A Context, Preston Gates & Ellis Labor, Employment and Benefits Alert, by Joan M. Travostino, Todd Reuter, Steven R. Peltin, David J. Perry, Peter E. Moye, Douglas S. Parker, Kathleen O. Peterson. March 30, 2006.
For nearly 20 years, the Worker Adjustment and Retraining Notification Act (WARN Act) has compelled many employers to consider providing advance notice of plant closures and mass layoffs — including in an M&A context. A recent United States Court of Appeals decision provides a useful primer on employer duties under the WARN Act in connection with the sale of assets.
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K&LNG’s Paul Gonson Receives Prestigious SEC Alumni Award, March 7, 2006.
The Association of Securities and Exchange Commission Alumni has given its William O. Douglas Award to K&LNG's Paul Gonson for his contributions to the financial industry and to the SEC.
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Regulation G and Financial Measures that Exclude the Effect of FAS 123R, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Devin W. Stockfish. February 7, 2006.
Financial measures that exclude the effects of accounting for share-based payment transactions in accordance with FAS 123R (such as Net Income Before Share-Based Payment Charge) are non-GAAP financial measures under Regulation G and Item 10(e) of Regulation S-K.
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Soft Dollars, NSCP West Coast Regional Meeting, by Mark D. Perlow. January 30, 2006.
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Preston Gates & Ellis LLP Names Thirteen New Partners, January 23, 2006.
Preston Gates & Ellis LLP announces that it has named thirteen new partners in its Seattle, Spokane, Orange County, San Francisco and Washington, D.C., offices.
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SEC Revises Accelerated Deadlines for Filing Periodic Reports, Corporate eAlert, a Hughes & Luce publication, January 9, 2006.
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SEC Announces Proposed Changes to Rules for De-registration of Foreign Private Issuers, Securities Alert, by Jeremy J. Landau, Owen E. Waft, Barbara A. Jones. January 2006.
The US Securities and Exchange Commission (SEC) issued in late December 2005 its long-awaited proposed amendments to the rules promulgated under the Securities Exchange Act of 1934 governing the ability of non-US issuers to de-register their debt or equity securities and cease their ongoing reporting requirements. This alert discusses the current requirements, the proposed amendments and how to effect de-registration.
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Purchase of Unlisted UK Companies - Equity Incentive Issues, Metropolitan Corporate Counsel, by Ian Fraser, Peter J. Marathas. January 2006.
U.S. purchasers and sellers of UK private or other unlisted companies should familiarize themselves with important differences in approach between the UK and the U.S. to dealing with employer equity incentive arrangements in corporate transactions. Often, U.S. plans will provide that outstanding equity rights are either assumed by a purchaser or are “cashed out” (eg. stock options would be cancelled in return for a cash payment equal to the deal consideration minus the exercise price). In U.S. corporate transactions, these plan provisions often mean that a cash out is the preferred method for dealing with outstanding equity rights. UK equity plans, on the other hand, often permit employees to exercise rights for a set period after closing, which would be somewhat unusual in a U.S. transaction, and this can give rise to various issues that should be addressed in the transaction agreements.
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Proposed Rules Changing Risk-Based Capital Requirements, K&LNG Alert, by Steven H. Epstein, Rebecca H. Laird, Ira L. Tannenbaum. November 2005.
This Alert discusses the recent Advanced Notice of Proposed Rulemaking in the Federal Register that seeks comments on a number of potential revisions to the existing financial institution risk-based capital structure. These proposed changes could affect the pricing, availability, structure and terms of loans, securitizations, letters of credit and similar bank products.
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SEC Guidance on the Use of Consultants and Conflicts of Interest, P&I Defined Contribution/401(k) Conference, by Mark D. Perlow. October 10, 2005.
This PowerPoint details key findings of a recent SEC report that uncovered potential conflicts of interest on the part of pension consultants. The report concluded that the business alliances among pension consultants and money managers pose serious potential conflicts of interest that need to be monitored and disclosed to plan fiduciaries.
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Impact of The Walt Disney Corporation Derivative Litigation, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Eric Simonson, David J. Perry. September 27, 2005.
On August 9, 2005, in The Walt Disney Company Derivative Litigation, the Delaware Chancery Court, after a 37-day trial, ruled in favor of the directors of The Walt Disney Company, finding that they did not violate their fiduciary duty of good faith. The plaintiffs in the litigation were shareholders who sued derivatively on behalf of the corporation. They sought damages from the directors in the amount by which the compensation paid to Michael Ovitz under his employment agreement (the "OEA") was "excessive."
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SEC Votes to Postpone 404 Compliance for Non-Accelerated Filers and to Propose Changes to Accelerated Filer Definition and Due Dates for 10-Ks and 10-Qs, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Chris K. Visser. September 22, 2005.
On September 21, 2005, the SEC voted to extend for an additional year the compliance date for filing internal control reports for public companies that are not accelerated filers. These internal control reports are required pursuant to Section 404 of the Sarbanes-Oxley Act.
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Where the Buck Stops, European Lawyer, by Michael J. Missal, Andrew H. Feller. September 2005.
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SEC Adopts Amendments to Rules 16b-3 and 16b-7 and Item 405 of Regulations S-K and S-B, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Chris K. Visser, Eric Simonson. August 5, 2005.
Last week the Securities and Exchange Commission (" SEC") adopted amendments to two rules that exempt certain transactions from the private right of action to recover short-swing profit provided by Section 16(b) of the Securities Exchange Act of 1934 (the "Exchange Act").1 The amendments are intended to reverse the Third Circuit’s decision in Levy v. Sterling Holding Co.2 and clarify the exemptive scope of these rules, consistent with statements in previous SEC releases. The SEC also amended Item 405 of Regulations S-K and S-B to harmonize this item with the two-business day Form 4 due date and mandated electronic filing and Web site posting of Section 16 reports.
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SEC Adopts Public Securities Offering Reforms, by Lorraine Massaro, Katherine J. Blair, Nanette Heide. August 2005.
On June 29, 2005, the Securities and Exchange Commission adopted landmark changes to the registered securities offering regime under the Securities Act of 1933 which become effective on December 1, 2005. The most fundamental changes effected in the Reforms primarily relate to communications, shelf registration and other public offering processes and prospectus delivery. This white paper provides a detailed discussion of the Reforms and what they mean for the different types of issuers.
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Letters of Intent: Look Before You Leap, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Eric Simonson, Raymond L. Veldman. June 30, 2005.
In the world of mergers and acquisitions, letters of intent and similar preliminary agreements1 are a widely used precursor to more comprehensive definitive agreements. When a deal falls apart before the definitive agreement is entered into, the letter of intent often becomes the subject of litigation between the parties. This article discusses some of the benefits and pitfalls of entering into a letter of intent and offers some practical suggestions.
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Strategies for Dealing with New SEC Policy to Publicly Release Responses to Staff Comment Letters, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Chris K. Visser, Devin W. Stockfish. May 24, 2005.
On May 12, 2005, the Securities and Exchange Commission ("SEC") began the process of publicly releasing comment letters and response letters relating to disclosure filings made after Aug. 1, 2004.
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Seventh Circuit Holds No Private Right of Action under Section 13(d) Absent an Accumulation of Stock—Rejects SEC’s Position, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Eric Simonson. May 10, 2005.
On April 25, 2005, the United States Court of Appeals for the Seventh Circuit, in Edelson v. Ch’ien, 2005 U.S. App. LEXIS 7527 (7 th Cir., April 25, 2005), on a question of first impression before the Court, ruled that absent a tender offer "or other accumulation or aggregation of stock that could affect corporate control" there is no private right of action for alleged violations of Section 13(d) under the Securities Exchange Act of 1934, as amended. The opinion, by Judge Ripple (joined by Judges Bauer and Manion) is significant not only for its direct holding, but also for the fact that the Court expressly rejected the argument of the United States Securities and Exchange Commission (the "SEC"), as amicus curiae, that a private right of action should exist for all stockholders for improper or incomplete disclosures on Schedules 13D, regardless of whether the omitted or improper disclosures relate to any accumulation of stock.
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Important Lessons from the SEC Enforcement Action Against Tyson Foods Regarding Disclosure of Perquisites, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Eric Simonson, G. Scott Greenburg. May 4, 2005.
The Securities and Exchange Commission's ("SEC") well publicized enforcement action against Tyson Foods Inc. ("Tyson Foods") and its former chairman, Donald Tyson, which was settled on April 28, 2005, provides a number of lessons for public companies and their officers and directors relating to the adequacy of proxy disclosures regarding perquisites.
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Securities Litigation, Business and Commercial Litigation in the Federal Courts, by Jeffrey B. Maletta. 2005.
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SEC Proposes Significant Public Securities Offerings Reforms, Securities Law Commentary, by Lorraine Massaro, Ronald Goldberg, Nanette Heide. December 2004.
The Securities and Exchange Commission has recently proposed the most significant changes to the registered securities offering regime under the Securities Act of 1933 since its much-criticized (and never adopted) "Aircraft Carrier" proposal in 1998. While the Aircraft Carrier Release had contemplated the wholesale replacement of the then-existing registered offering process, the current Proposal represents, in the Commission's words, only an "incremental" change in the regulatory structure and offering process which builds upon rather than replaces the integrated disclosure system currently in place. The comment period ends on January 31, 2005. In this Alert you'll find an Executive Summary up front which outlines the main points of the Proposal. In the later pages, the Proposal is discussed in greater detail.
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SEC Publishes Frequently Asked Questions Regarding New Form 8-K, Preston Gates & Ellis Publication, November 29, 2004.
On November 23, 2004 the Staff of the Division of Corporation Finance at the Securities and Exchange Commission (SEC) published long-awaited answers to 30 frequently asked questions (FAQs) regarding the implementation and interpretation of the new Form 8-K disclosure items that have been in effect since August 23, 2004.
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The End of Low Taxes on Dividends?, Implications for the Last Quarter of This Year, Preston Gates & Ellis Tax Alert, by Andrew H. Zuccotti, Charles H. Purcell. September 1, 2004.
Currently, the tax rate on dividend income is 15%, which is the lowest tax rate imposed on dividend income in decades. This low rate was enacted in 2003. Prior to that time dividends were subject to tax at the rate applicable to ordinary income. (At this time, the highest rate of tax applicable to ordinary income is 35%.)
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Pacific Coast Opportunities: A guide to foreign acquisition of businesses and real property, Preston Gates & Ellis Publication, August 16, 2004.
This guide briefly considers matters such as federal and state tax issues, government approvals and reporting procedures, environmental concerns and questions of real property title.
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SEC Increases Scrutiny of Hedge Fund "PIPE" Deals, Securities Enforcement Commentary, by Mark P. Goshko, Derek Meisner. August 2004.
This article summarizes the SEC's recent investigations into hedge funds' participation in Private Investment in Public Equities transactions, or "PIPEs," and provides tips for hedge funds and companies participating in a PIPE or contemplating a PIPE transaction.
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Section 404 of Sarbanes-Oxley: Auditing Standard No. 2, Preston Gates & Ellis Publication, by Robert S. Jaffe. July 7, 2004.
On June 17, 2004 the Securities and Exchange Commission ("SEC") approved Public Company Accounting Oversight Board ("PCAOB") Auditing Standard No. 2, An Audit of Internal Control Over Financial Reporting Performed in Conjunction with an Audit of Financial Statements ("Standard No. 2").
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K&L Bolsters Capital Markets and Structured Finance Practice with Arrival of Phillip J. Kardis II, July 7, 2004.
Mr. Kardis, who will be Of Counsel in the Washington office, concentrates his practice on complex corporate, securities and financing transactions.
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Strategies for Dealing with New SEC Policy to Publicly Release Responses to Staff Comment Letters, Preston Gates & Ellis Publication, by Robert S. Jaffe. June 30, 2004.
The Securities and Exchange Commission ("SEC") announced on June 24th its decision to make all SEC comment letters and company responses to these letters publicly available on its website at www.sec.gov. This new policy will apply to public company disclosure filings made after August 1, 2004 that are reviewed by the SEC's Division of Corporation Finance and Division of Investment Management.
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A Cloud With a Silver Lining, San Francisco Daily Journal, by Richard M. Phillips, Mark D. Perlow. April 28, 2004.
This article discusses how the mutual fund market-timing scandal could in fact mean reform for the entire industry. Posted with permission.
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Sarbanes-Oxley Act of 2002: Implications for Environmental Counsel, prepared for the Pennsylvania Bar Institute's Environmental Law Forum 2004, by Kristen L. Stewart, Jeffrey W. Acre. March 31, 2004.
This paper discusses the certain parts of the Sarbanes-Oxley Act that represent examples of those rare securities developments that must be understood by environmental lawyers, as well as securities lawyers.
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SEC Adopts Additional Form 8-K Disclosures and Accelerated Filing Requirement, Business Department E-News Alert, by Robert S. Jaffe. March 22, 2004.
On March 16, 2004 the Securities and Exchange Commission ("SEC") issued final rules (the "Amendments") intended to be responsive to the "real time issuer disclosure" mandate in Section 409 of the Sarbanes-Oxley Act of 2002, which requires public companies to disclose material information "on a rapid and current basis." The Amendments are intended to provide investors with better and faster disclosure of important corporate events. Companies must comply with the new Form 8-K requirements effective as of August 23, 2004.
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New Protection for Dissident Employees, Employment Law Update, by Hayes C. Stover. March 2004.
Discussion of the whistleblower protection provisions under Sarbanes-Oxley Act.
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Kirkpatrick & Lockhart/Los Angeles Welcomes New Corporate and Securities Partner, January 27, 2004.
K&L is pleased to announce that Jeryl A. Bowers, a leading corporate and securities attorney, has joined its Los Angeles office as a partner. Mr. Bowers' law firm and corporate law department experiences will significantly benefit K&L's firmwide corporate practice.
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New IRS Regulations Narrow the Application of Tax Shelter Disclosure Rules, Business Department E-News Alert, by Robert S. Jaffe. January 15, 2004.
The IRS and Treasury recently issued amended final regulations that significantly limit the circumstances under which taxpayers are required to disclose "confidential transactions" under the tax shelter disclosure rules.
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Kirkpatrick & Lockhart LLP’s Washington Office Welcomes Five New Attorneys , January 14, 2004.
K&L is pleased to announce the addition of partners Brian A. Ochs and Martin D. (Marty) Teckler, and three associates to our Washington, DC office. Mr. Ochs will enhance our nationally recognized securities enforcement practice and Mr. Teckler’s expertise is the perfect complement to our investment management, venture capital and capital markets groups.
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NASD Publishes "New Issues" Rules, Preston Gates & Ellis Business Department E-News Alert, by Robert S. Jaffe. January 9, 2004.
Previously, NASD Conduct Rule IM-2110-1, the "Free-Riding and Withholding Interpretation" ("Interpretation"), governed the manner in which NASD members could distribute newly issued public securities trading at a premium ("hot issues"). Under the Interpretation, NASD members were prohibited from selling hot issues to accounts in which persons deemed to be "restricted persons" directly or indirectly held an interest. In October of 1999, the NASD proposed to restructure and make substantive amendments to the Interpretation, to be promulgated as new NASD Rule 2790. The Securities and Exchange Commission announced on October 24, 2003 that it approved NASD Rule 2790, and on December 23, 2003 the NASD published Rule 2790, making it effective on a voluntary basis on that date.
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Corporate Compliance Programs: Weaving an Effective Compliance Web, Preston Gates & Ellis Corporate/Securities Alert, by Gary J. Kocher, Julie A. Halter, Chris K. Visser. December 10, 2003.
Simply put, corporate compliance programs are designed to prevent and detect violations of the law. Compliance programs make good business sense because they: reduce the likelihood of a violation of the law; lower the costs of a violation; and build a values-based culture. In spite of these benefits, compliance programs are not as prevalent as one would imagine.
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An Updated Primer for Audit Committees after Sarbanes-Oxley, Securities and Securities Enforcement Update, by Kristen L. Stewart, Amanda Skov. December 2003.
This newsletter updates and replaces our April 2003 Primer for Audit Committees after Sarbanes-Oxley and provides a summary of recently adopted amendments to the listed company rules.
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SEC Final Rules Regarding Nominating Process Disclosure and Shareholder Communications, Preston Gates & Ellis Business Department E-News Alert, by Stephan H. Coonrod. November 25, 2003.
The Securities and Exchange Commission ("SEC") issued final rules yesterday that would require companies to make enhanced disclosures regarding the operation of their board nominating committees and new proxy statement disclosures regarding the means, if any, by which shareholders may communicate with directors.
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K&L's Michael S. Greco and R. Charles Miller Elected to the American Law Institute, November 24, 2003.
K&L partners Michael S. Greco and R. Charles Miller have been elected to the American Law Institute (ALI). Their election brings the number of K&L’s active members in ALI to 21.
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New NYSE and NASD Rules Regarding Standards for Listed Companies, Preston Gates & Ellis Business Department E-News Alert, by Stephan H. Coonrod. November 20, 2003.
On November 4, 2003, the Securities and Exchange Commission ("Commission") approved new rules proposed by the New York Stock Exchange, Inc. (the "NYSE") and the The Nasdaq Stock Market, Inc. ("Nasdaq") intended to strengthen the corporate governance standards and ensure director independence for listed companies. These new corporate governance listing standards supplement the corporate governance reforms already adopted by the Commission pursuant to the Sarbanes-Oxley Act of 2002.
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SEC Proposed Rules Regarding Shareholder Access to Proxies for Director Elections and, Preston Gates & Ellis Business Department E-News Alert, by Stephan H. Coonrod. November 13, 2003.
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Manage Your CEO—Or Else, Chief Legal Executive, by Dick Thornburgh, Michael J. Missal. Fall 2003.
Despite the close working relationship a Chief Legal Officer (CLO) might enjoy with a Chief Executive Officer (CEO), the CLO's true client is the company-not the CEO. And that, in the wake of recent corporate scandals, can put the CLO in an awkward position. The CLO must recognize that he or she is one of the primary gatekeepers of proper corporate governance practices and may have to take very difficult actions to fulfill his or her responsibilities. This article explores the relationship between CLOs and CEOs. Posted with permission.
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The Sarbanes-Oxley Act: Turning Lawyers Into Corporate Whistleblowers?, Preston Gates & Ellis Corporate/Securities Alert, by Richard A. Kirby. August 25, 2003.
Section 307 of the Sarbanes-Oxley Act of 2002 dictates that the Securities and Exchange Commission (SEC) set up a process where attorneys working for public companies could report "evidence of a material violation of securities law or breach of fiduciary duty or similar violation by the company" to appropriate company leadership. This provision sparked an immense amount of controversy and initiated a flood of comments from private lawyers and public companies directed at the SEC as the Commission considered how to implement this provision of Sarbanes-Oxley.
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New NYSE and NASD Rules Regarding Shareholder Approval of Equity Compensation Plans, Preston Gates & Ellis Business Department E-News Alert, by Stephan H. Coonrod. August 7, 2003.
The Securities and Exchange Commission recently approved new rules proposed by the New York Stock Exchange ("NYSE") and National Association of Securities Dealers ("NASD") that require shareholder approval (subject to certain exceptions) of all equity compensation plans and material revisions to such plans. These rules generally apply to equity compensation plans adopted after June 30, 2003 or pre-existing plans that subsequently become materially amended. While many of the NYSE and NASD provisions are similar, the rules are still different and may be administered differently. Companies should review their equity compensation plans and other arrangements and the new applicable rules in order to plan for the new shareholder approval requirements.
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Patent Due Diligence and Full Material Disclosure for Innovative Securities, Intellectual Property Alert, by Stephen C. Glazier. August 2003.
Recent changes in the law have for the first time lead to a wave of patents for innovative investment products. As a result, the securities industry is adopting business practices that are long-established in manufacturing industries that patent their new products. This includes the use of both offensive and defensive patent-oriented procedures prior to the offer of new investment products. The ability to use patents to obtain exclusive rights to new investment ideas promises a revolution in the profitability and practice of financial innovation. Indeed, financial product patents will themselves become a profit center for innovative investment bankers. This Alert discusses these trends in more detail.
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SEC Final Rules Regarding Audit Committee Standards for Listed Companies, Preston Gates & Ellis Business Department E-News Alert, by Stephan H. Coonrod. June 13, 2003.
As directed by the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley"), the Securities and Exchange Commission (the "SEC") recently adopted a new rule directing the national securities exchanges and national securities associations such as the New York Stock Exchange and the Nasdaq Stock Markets (called self-regulated organizations or "SROs") to prohibit the listing of any security of an issuer that is not in compliance with the audit committee requirements established by Sarbanes-Oxley.
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Kirkpatrick & Lockhart Attorneys to Speak at BIO 2003 in Washington, D.C., June 12, 2003.
K&L attorneys will moderate and speak on two panels at the upcoming BIO 2003 conference, in Washington, D.C. from June 22 – 25, 2003. The panels will address the topics: “Drug Development Licensing: New Rules for an Old Game” and the “FDA’s Regulation of Electronic Records Under Part 11".
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New SEC Rules Implementing Internal Control Disclosure Requirements under Section 404 and Amendments to Certain Disclosure and Certification Requirements under Sections 302 and 906 of the Sarbanes-Oxley Act of 2002, Securities Alert, by Diane E. Ambler, Cary J. Meer, Sean Hunt. June 2003.
The SEC has adopted final rules required under Section 404 of the Sarbanes-Oxley Act of 2002 (the "Act"). The final rules set forth the requirements implementing the internal control provisions of Section 404 of the Act (the "Internal Control Provisions"). Each accelerated filer (generally a company that is subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act and has an aggregate market value of common equity of $75 million or more) must comply with the adopted Internal Control Provisions as of the end of its fiscal year ending on or after June 15, 2004 (April 15, 2005 for non-accelerated filers, including foreign private issuers and small business issuers). This Alert discusses the SEC's rulemaking.
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Kirkpatrick & Lockhart Mentioned Among Top Practices in Mutual Funds, REITs in American Lawyer Corporate Scorecard, May 29, 2003.
The rankings affirm K&L’s long-standing position as a leading legal adviser to the investment management industry, and they also reflect the depth of the firm's securities and financial services practices.
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Sarbanes-Oxley Update: New Rules for Earnings Releases, Preston Gates & Ellis Business Department E-News Alert, by Stephan H. Coonrod. April 30, 2003.
On July 30, 2002, President Bush signed into law the Public Company Accounting Reform and Investor Protection Act of 2002 ("Sarbanes-Oxley"). Among the many goals of Sarbanes-Oxley was the enhancement and integrity of the financial disclosures of public companies. One specific concern was the disclosure by public companies of financial information that is not in accordance with generally accepted accounting principles (so called "non-GAAP financial measures").
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Washington Business Corporation Act Amendments: Shareholder Voting Group Rights, Shareholder Notice Requirements and Stock Splits, Preston Gates & Ellis Corporate/Securities Alert, by Stephan H. Coonrod. April 18, 2003.
Washington Business Corporation Act Amendments: Shareholder Voting Group Rights, Shareholder Notice Requirements and Stock Splits The Washington Business Corporation Act ("WBCA") provides default rules that apply to all Washington corporations. On April 17, 2003, Washington Governor Gary Locke signed into law Senate Bill 5123, which contains significant amendments to the WBCA to clarify and amend certain of the default rules in the areas of shareholder voting group rights, shareholder notice requirements and stock splits. These amendments will become effective on July 27, 2003.
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A Primer for Audit Committees after Sarbanes-Oxley, Securities and Securities Enforcement Update, by Katherine J. Blair, Kristen L. Stewart, Amanda Skov, Jonathan Joseph, Norman Miller. April 2003.
This Alert focuses on new duties and responsibilities facing public company audit committees in carrying out their expanded roles in light of the Act and SEC rules that were adopted on April 2 and released on April 10.
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SEC Proposed Rules Regarding Audit Committee Standards for Listed Companies, Preston Gates & Ellis Corporate/Securities Alert, March 18, 2003.
Complying with the congressional mandate of Section 301 of the Sarbanes-Oxley Act of 2002, the Securities and Exchange Commission (the "SEC") recently proposed a new rule directing the national securities exchanges and national securities associations (called self-regulated organizations or "SROs") to prohibit the listing of any security of an issuer that is not in compliance with the audit committee requirements established by Sarbanes-Oxley.
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Leading Securities Litigator Richard Kirby Joins Preston Gates, March 17, 2003.
Richard Kirby has joined Preston Gates Ellis & Rouvelas Meeds as a partner in the firm's securities practice and national litigation team.
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Preston Gates' Orange County Office Significantly Expands its Technology, Life Sciences and Corporate Practice, February 6, 2003.
Four partners have joined the Orange County office of Preston Gates & Ellis LLP.
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Kirkpatrick & Lockhart Assists Impac Mortgage Holdings, Inc. in $33.0 Million Public Offering, February 26, 2003.
K&L's Los Angeles securities law practice closed a public offering for Impac Mortgage Holdings, Inc. for 3,000,000 shares of common stock resulting in approximately $33 million in net offering proceeds to IMH.
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New Regulations Under Sarbanes-Oxley Retirement Plan Blackout Periods: Trading Prohibition and Notice Requirements , Preston Gates & Ellis Business Department E-News Alert, by Stephan H. Coonrod. March 25, 2003.
On July 30, 2002, President Bush signed into law the Public Company Accounting Reform and Investor Protection Act of 2002 (also referred to as the Sarbanes-Oxley Act of 2002 and referred to herein as the "Act").
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Final Rules on Corporate Codes of Ethics and Audit Committee Financial Experts under the Sarbanes-Oxley Act, Preston Gates & Ellis Corporate/Securities Alert, February 11, 2003.
On July 30, 2002, President Bush signed into law the Public Company Accounting Reform and Investor Protection Act of 2002 (also referred to as the Sarbanes-Oxley Act of 2002 and referred to herein as the "Act"). The Act provides for enhanced financial disclosures for public companies and mandates improved corporate governance practices.
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Summary of Proposed Changes to Reporting Requirements Under Form 8-K, Preston Gates & Ellis Corporate/Securities Alert, January 17, 2003.
As a result of the enactment of the Public Company Accounting Reform and Investor Protection Act of 2002 (also referred to as the Sarbanes-Oxley Act of 2002, referred to herein as the "Act"), the adoption of SEC releases implementing the Act, and the adoption of additional SEC releases, there have been a number of proposed changes to the reporting requirements under Form 8-K. This summary outlines the releases, the general purpose of each release and the corresponding schedule for the adoption of the proposed reporting requirements.
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New SEC Rules Implementing the Audit Committee Financial Expert and Code of Ethics Requirements under Sections 406 and 407 of the Sarbanes-Oxley Act of 2002, Securities Alert, by Cary J. Meer, Sean Hunt. January 2003.
The attached K&L Securities Alert summarizes the SEC's release and discusses the rule's applicability to the various affected entities.
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CFTC Expands the Ability of Mutual Funds, Banks, Insurance Companies and Pension Plans to Use Futures Contracts and Commodity Options for Other Than Hedging Purposes, Securities Law Commentary, by Marc Mehrespand, Arthur C. Delibert, Cary J. Meer, Charles R. Mills. November 2002.
On October 28, 2002, the Commodity Futures Trading Commission (“CFTC”) proposed an amendment to CFTC Rule 4.5 that expands the ability of mutual funds, banks, insurance companies and pension plans to use futures and commodity options for other than bona fide hedging purposes without regulation as commodity pool operators. Significantly, the CFTC also announced that it is taking a “no-action” position to permit mutual funds and other eligible persons to rely on the proposed rule pending final action.
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The 2002 Best Execution Symposium, presented at the 2002 Best Execution Compliance Symposium, New York, by Michael S. Caccese. October 28, 2002.
This presentation was given at the 2002 Best Execution Compliance Symposium, and focuses on the topics of SEC and Best Execution, SEC and Model Procedures, AIMR Trade Management Guidelines.
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No, The Trust Business Has Not Gone Away, and No, It Has Not Necessarily Become An Adjunct Of The Securities Business, The Banking Law Journal, by Dean E. Miller. October 2002.
Mr. Miller makes the point that the small and medium sized US banks and trust companies remain significant players in the nation's trust business market; and that their ability to utilize collective investment funds is a significant element in the provision by them of those services on a competitive basis.
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Federal and State Registration of Investment Advisers, Futures & Derivatives Law Report, by Cary J. Meer, Marc Mehrespand. September 2002.
The National Securities Markets Improvement Act of 1996 ("NSMIA") implemented a bifurcated scheme that allows investment advisers to register either federally, under the Investment Advisers Act of 1940, or with the states based on certain criteria. This article provides an overview of this scheme, with a particular emphasis on issues relevant to investment advisers who invest in derivative products, such as security futures.
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SEC Proposes Changes to Investment Company Advertising Regulations, Advertising Compliance Service, by David S. Versfelt, Kathryn Plunkett. August 19, 2002.
The article presents a brief overview of proposed amendments to SEC regulations governing certain types of advertising claims made by investment companies. The amendments will be formally adopted if the SEC continues to deem them advisable after review of comments on them submitted by the public.
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The Sarbanes-Oxley Act and the New Order of Corporate Disclosure, Securities Alert, by Nicholas G. Terris, Jeffrey B. Maletta. August 2, 2002.
The Alert discusses the landmark Sarbanes-Oxley Act.
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SEC Adopts Rules Implementing Accelerated Filings of Quarterly and Annual Reports and Section 16 Reports, Securities Law Alert, by Alan J. Berkeley, Cary J. Meer, Marc Mehrespand, Richard E. Wood. August
2002.
This Alert summarizes rules adopted by the Securities and Exchange Commission on August 27, 2002, that implement accelerated reporting requirements for company quarterly and annual reports and ownership reports under Section 16 of the Securities Exchange Act of 1934.
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New Law Requires Accelerated Ownership Reporting by Officers, Directors and Principal Security Holders, Securities Law Alert, by Cary J. Meer, Richard E. Wood. August 2002.
Summarizes another change in corporate governance resulting from the Sarbanes-Oxley Act: the imposition of a two business day filing requirement for Form 4 ownership reports. In addition to covering open market purchases and sales of stock, the two business day reporting requirement will apply to common transactions in stock options and other derivative securities. Failure to strictly comply with the reporting requirements must be disclosed in the company's annual proxy statement and 10-K annual report.
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Let the Analysts Beware: SEC Initiates Enforcement Inquiry and Approves Rules to Address Analyst Conflicts, Electronic Banking Law and Commerce Report, May 2002.
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New SEC Rules-The Deluge Continues, Securities Law Commentary, by Thomas F. Cooney, III. May 1, 2002.
On April 30th, the SEC voted 3-0 to require companies to disclose, in a separately captioned section of the "Management's Discussion and Analysis" ("MD & A") section of annual reports, registration statements and proxy and information statements, information regarding critical accounting estimates that are made by a company in applying its accounting policies, and information regarding the initial adoption of an accounting policy. These proposed rules have the potential to put companies in a very difficult disclosure position, since the basis for and process of making material estimates and assumptions is not often easily described.
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The 1933 & 1934 Acts: SEC Enforcement & Private Actions, Presented at Introduction to Securities Law Series, by Charles R. Mills. April 30, 2002.
Discusses private rights of action under the federal securities laws.
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New SEC Rules-The Deluge Begins, Securities Law Commentary, by Alan J. Berkeley. April 2002.
Discusses two recently proposed revisions to the SEC's periodic reporting rules. The first, a requirement to file Form 10-Qs within 30 days after the end of a quarter and to file Form 10-Ks within 60 days after the close of a fiscal year, is terrifying because of the shortened time span. The second proposal is confusing in that it requires companies to file, using Form 8-K, transactions in the company's securities by its officers and directors in addition to the individual's requirement to file a Form 4 or Form 5 for the same transactions.
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SEC Enforcement Chief Threatens Officers and Directors of Public Companies with Increased Sanctions for Deliberate Violations of the Securities Laws, Securities Enforcement Alert, by Glenn R. Reichardt. February 21, 2002.
Discusses a speech by SEC Enforcement Chief Stephen Cutler before the Glassr LegalWorks 20th Annual Federal Securities Institute in Hallandale, Florida on February 15, 2002.
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Carpe Diem-‘Enron’ Facilitates Major Changes in SEC Corporate Disclosure Rules, Securities Law Commentary, by Alan J. Berkeley. February 2002.
This piece summarizes proposed corporate disclosure reforms announced by the SEC that reflect several important conceptual shifts in disclosure practice.
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Paying More Than Lip Service to Cooperation, eSecurities, by Michael J. Missal, Karsie Kish. December 2001.
The SEC recently issued a report encouraging cooperation in enforcement investigations. This article discusses the types of cooperation for which credit will be given and discusses issues that could arise in connection with such cooperation.
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Legal Watch: Replacing a Security Certificate May Create Exposure to Suit, STA Newsletter, by Robert E. Feyder. November 1, 2001.
Focuses on Defenses available to transfer agents under the application of Uniform Commercial Code Section 8-115.
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SEC Enforcement’s Aggressive Approach Toward Supervision Suffers Numerous Setbacks, Securities Enforcement & Litigation Update, by Michael J. Missal. Fall 2001.
Supervisors in securities firms have come under increasing scrutiny in investigations by the SEC. However, the SEC has suffered a number of significant setbacks when it is put to the test of proving its cases against supervisors.
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The Navellier Decision: Ninth Circuit Strengthens the Hand of Independent Directors and Their Counsel, Securities Enforcement & Litigation Update, by Richard M. Phillips. Fall 2001.
This decision holds that counsel to the independant directors of a mutual fund has no fiduciary responsibility to the shareholders of the fund and therefore is not subject to suit by a shareholder.
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Public Disclosure of Environmental Liabilities: SEC Reporting Requirements for EPA Enforcement Actions, Produkt-und Umwelthaftpflicht International, by John P. Englert, Arnnie Dodderer. August 2001.
The article provides a general look at reporting requirements for environmental liabilities under SEC Regulation S-K, as well as the recent trend of cooperation between the SEC and the EPA in an effort to ensure adequate public disclosure.
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What Happens When Transactional Websites Go Down?: Understanding and Avoiding the Consequences of Website Outages for Online Brokerages, CyberSecuritiesLaw, by Bruce H. Nielson, Ivan Knauer. April 9, 2001.
This article reviews a recent case in which the NYSE fined an on-line brokerage for the repeated unavailability of its trading website over a period of time. The article addresses the securities laws governing the operation of on-line trading websites and provides suggestions on how businesses can use technology and insurance and contractual provisions to protect against and avoid losses from unplanned website outages.
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When the SEC Comes Calling: Tips for Dealing with an Enforcement Investigation, ACCA Docket, by Michael J. Missal, Leigh Freund. April 2001.
This article describes the various stages of an SEC enforcement investigation. The article also provides guidance and practical tips for managing an investigation.
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Web Site Outages and Online Brokerages: Don't Talk the Talk if You Can't Walk the Walk, Electronic Banking Law and Commerce Report, by Bruce H. Nielson. April 2001.
This article reviews a recent case in which the NYSE fined an on-line brokerage for the repeated unavailability of its trading website over a period of time. The article addresses the securities laws governing the operation of on-line trading websites and provides suggestions on how businesses can use technology and insurance and contractual provisions to protect against and avoid losses from unplanned website outages.
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New SEC Rule 155-A Major Breakthrough for Financings in Roiling Markets, Securities Law Commentary, by Alan J. Berkeley. February 2001.
This article discusses the potential impact the new SEC Rule 155 may have in facilitating business financing by reducing the roadblocks to switching from a public to private financing effort and vice versa.
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Investment Company Regulation of Online Investment Programs, wallstreetlawyer.com, by Mark D. Perlow. February 2001.
A new wave of on-line investment programs -- "Folios" -- is arriving. This article analyzes whether they are subject to the requirements of the Investment Company Act of 1940 and the Securities Act of 1933.
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Modern Federal Jury Instructions, published by Matthew Bender, by Walter P. Loughlin, and others. 1984.
A standard reference work, updated semi-annually, for judges and practitioners in federal trials, cited with approval by the United States Supreme Court and by the United States Courts of Appeals for every circuit.
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