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Staff Addresses Family Trusts With Multistate Trustees

When the Securities and Exchange Commission two years proposed amendments to Rule 147 and adoption of Rule 147A, I commented on an issue that I foresaw with respect to family and other non-business trusts...more

9/26/2017  /  Rule 147 , Rule 147A , SEC , Trustees , Trusts

Did The SEC’s Pay Ratio Guidance Miss Conjunction Junction?

Last week, the Securities and Exchange Commission issued interpretive guidance to assist issuers in complying with the pay ratio rule. At the same time, the Division of Corporation Finance staff issued guidance concerning...more

Are Limited Liability Companies “Persons”?

Limited liability companies did not exist when Congress enacted the Securities Act of 1933 and the Securities Exchange Act of 1934. Therefore, it should be no surprise that as originally enacted, these acts did not mention...more

Professor Robert J. Jackson Jr. Nominated To Become A Member Of The Securities And Exchange Commission

As Broc Romanek noted yesterday, President Donald Trump has nominated Columbia Law School Professor Robert J. Jackson, Jr. to become a member of the Securities and Exchange Commission. Over the years, Professor Jackson’s...more

A Subsidiary Post

Not too long ago, I wrote about the Securities and Exchange Commission’s confusing classification of subsidiaries. See The Case Of The Wholly Owned, But Not Totally Held, Subsidiary That May Or May Not Be 100% Owned. Since...more

Materiality – “Shoulda, Coulda, Woulda?”

John Jenkins recently took note of this letter from the SEC’s Office of Investor Advocate commenting on a proposal by the Financial Accounting Standards Board to amend the definition of “materiality” in Concepts Statement No....more

8/1/2017  /  FASB , Financial Reporting , Materiality , SEC

The Case Of The Wholly Owned, But Not Totally Held, Subsidiary That May Or May Not Be 100% Owned

When someone says that a subsidiary is “wholly owned”, I believe that the common understanding is that the parent company owns all of the issued and outstanding equity of the subsidiary. What if the statement is that the...more

California’s Regulation A Notice Filing Requirement

Two years ago, I posed the question: Will California Require Notice Filings For Regulation A Offerings? Corporations Code Section 25102.1(a) provides that offers and sales of to “qualified purchasers”, as defined by the...more

Investment Companies And Intrastate Offerings

SEC Rel. No. 33-4434, at 4 (Dec. 6, 1961) [26 FR 11896 (Dec. 13, 1961)Recently, my eye caught the following statement in the SEC’s Intrastate Offering Exemptions: A Small Entity Compliance Guide for Issuers...more

California Lags Behind The SEC In Permitting Testing Of The Waters In Regulation A Offerings

In 2015, the Securities and Exchange Commission adopted amendments to Regulation A and other rules and forms to implement Section 401 of the Jumpstart Our Business Startups (JOBS) Act. One significant enhancement to...more

Even If Enacted, The Choice Act May Not Repeal The SEC’s Pay Ratio Rule

While prognosticators continue to place odds on whether the Financial CHOICE Act of 2017, H.R. 10, will be enacted, many commentators are claiming that it will “repeal” the Securities and Exchange Commission’s pay ratio rule....more

Does A Political Yard Sign Really Violate Investment Advisers Act?

“Congress shall make no law . . . abridging the freedom of speech . . . .” Doug Cornelius recently published this post reporting that the SEC staff is taking the position that the pay-to-play rule, Rule 206(4)-5, applies...more

Insider Trading Is Like A Dog Named “Stay”

Insider trading cases remind me of the following joke attributed to stand-up comic Steven Wright...more

Want To “Bury” Your Response To SEC Comments? Here’s How

I have long assumed that when you search “CORRESP” by issuer name, you would see all correspondence filed on EDGAR with respect to that issuer. I was therefore surprised when I recently searched for a letter responding to...more

6/6/2017  /  EDGAR , SEC

New Rule 147A And Amendments To Rule 147 Are Now Effective

Last October the Securities and Exchange Commission adopted amendments to Rule 147 to modernize the safe harbor under Section 3(a)(11) and a new intrastate offering exemption, Rule 147A. See Will New Rule 147A Lead To A...more

Financial Difficulties – A Bizarrely Vague Standard For Disclosure

Earlier this year, the Securities and Exchange Commission published for comment proposed amendments to the Municipal Securities Disclosure Rule (Rule 15c2-12). The existing rule is complicated and I will not attempt to...more

Did The Harvard Shareholder Rights Project Prove Itself Wrong?

In December 2014, Stanford Law School Professor Joseph A. Grundfest and Daniel M. Gallagher incited an academic titanomachy when they released a draft of an academic paper provocatively entitled “Did Harvard Violate Federal...more

If The Market Makes You Do It, Why Should The SEC?

The basic premise underlying most disclosure requirements seems to be that issuers won’t disclosures to investors unless legally required to do so. Yet, there is ample evidence of issuers making disclosures in the absence of...more

Real Estate Fund Advisers And Penumbra Registration

Last August, the Securities and Exchange Commission adopted amendments to Form ADV, the form used by investment advisers to register with the SEC and with the states. Included in these amendments were changes to allow...more

More On Real Estate Funds And The Investment Advisers Act

In a previous post, I began to delve into the question of what is a “real estate fund”. See SEC Staff Reports On “Real Estate Funds”, But What Exactly Are They? As noted in that post, a “real estate fund” as defined in Form...more

SEC Staff Reports On “Real Estate Funds”, But What Exactly Are They?

Yesterday, the SEC staff announced that it had published a suite of new data and analyses of private fund statistics and trends. These data include information with respect to “real estate funds”. But what exactly is a...more

The SEC’s Flawed Changes To Exchange Act Forms

Title I of the Jumpstart Our Business Startups (aka JOBS) Act amended the Securities Act and the Exchange Act to provide some regulatory relief to issuers that qualify as an “emerging growth company”. Recently, the...more

Did Joseph P. Kennedy Make Insider Trading Illegal?

The Patriarch: The Remarkable Life and Turbulent Times of Joseph P. Kennedy. (Penguin Press, 2012) by Professor David Nasaw is one of several books that I am currently reading. As a securities lawyer, the following sentence...more

4/12/2017  /  Insider Information , SEC

Why Bassam Salman Should Not Have Been Convicted

A lot of ink has been spilt on the United States Supreme Court’s decision in Salman v. United States, 137 S. Ct. 420 (2016). In that case, the Supreme Court upheld the criminal conviction of Mr. Bassam Salman who received...more

Exactly What Part Of “To The Commission” Is Ambiguous?

The Dodd-Frank Act gave us many things, including Section 21F of the Securities Exchange Act of 1934. Section 21F, prohibits employers from retaliating against a “whistleblower”. 15 U.S.C. § 78u-6(h)(1)(A). We need not...more

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