Paul Bork

Paul Bork

Foley Hoag LLP

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New Nasdaq Rule Requires Disclosure of Third Party Compensation of Directors and Nominees

Effective August 1, 2016, companies listed on Nasdaq are subject to a new rule requiring annual disclosure of the material terms of agreements or arrangements between directors or director nominees and third parties that...more

9/7/2016 - Board of Directors Compensation Agreements Disclosure Requirements Exceptions Executive Compensation Independent Directors Investors Nasdaq Publicly-Traded Companies Transparency

Latest Amendments to Delaware Law Revise Appraisal Rights

Effective August 1, 2016, the appraisal rights of dissenting stockholders in mergers and certain other transactions under the Delaware General Corporation Law (DGCL) have been modified in two principal respects...more

8/20/2016 - Appraisal Rights Corporate Counsel Delaware General Corporation Law Dissenters Rights Mergers Shareholder Rights

Proposed SEC Amendment Could Reduce Compliance Costs for Smaller Public Companies

Under a mandate from Congress under the Fixing America’s Surface Transportation (FAST) Act of 2015, the Securities and Exchange Commission recently proposed an amendment to the definition of “smaller reporting company” that...more

8/10/2016 - Disclosure Requirements Fixing America’s Surface Transportation Act (FAST Act) Public Comment Regulation S-K Regulation S-X SEC Smaller Reporting Companies

Changes to the New York City Retirement Systems’ Proxy Guidelines

The New York City Retirement Systems (NYRS) recently published a major overhaul of their proxy voting policies, the first in 30 years. Released in April 2016, the “Corporate Governance Principles and Proxy Voting Guidelines”...more

6/23/2016 - Board of Directors Executive Compensation Human Rights Investor Advisory Committee New Guidance Pension Funds Proxy Season Proxy Voting Guidelines Public Employee Retirment Funds Tenure

Non-GAAP Financial Disclosures – Redux

Prefaced by public statements of SEC officials about improper use of non-GAAP financial measures, the Staff of the Division of Corporation Finance issued new and revised Compliance & Disclosure Interpretations (“C&DIs”) on...more

6/2/2016 - C&DIs EBITDA Financial Reporting GAAP Non-GAAP Financial Measures Regulation G Regulation S-K SEC

How the FAST Act Will Impact Securities Laws

On December 4, 2015, the Fixing America’s Surface Transportation Act (the FAST Act) was signed into law. Although the majority of the Act concerns transportation and infrastructure, it also contains several provisions that...more

1/15/2016 - Disclosure Requirements Emerging Growth Companies Fixing America’s Surface Transportation Act (FAST Act) Initial Public Offerings JOBS Act SEC

SEC Provides Guidance on Exclusion of Shareholder Proposals Under the “Ordinary Business” and “Direct Conflict” Exclusions of Rule...

On October 22, 2015, the staff of the SEC’s Division of Corporation Finance issued Staff Legal Bulletin No. 14H (SLB 14H), which addresses issues related to shareholder proposals that conflict with a company’s own proposal or...more

11/24/2015 - Directly Conflicts Factors Ordinary Business Exception Rule 14a-8 SEC Shareholder Proposals

D.C. Circuit Court Re-Affirms Decision that Portions of SEC’s Conflict Minerals Rules are Unconstitutional

On August 18, 2015, the United States Court of Appeals for the D.C. Circuit, in likely the first majority opinion citing Charles Dickens (A Tale of Two Cities) and George Orwell (Nineteen Eighty-Four), re-affirmed its...more

8/31/2015 - Compelled Speech Conflict Mineral Rules Disclosure Requirements En Banc Review First Amendment Manufacturers National Association of Manufacturers Publicly-Traded Companies SEC

SEC Adopts Pay Ratio Disclosure Rule

On August 5, 2015, the SEC, by a 3 to 2 vote, adopted the controversial “pay ratio rule,” which requires public companies to disclose the ratio of the annual total compensation of the chief executive officer (CEO) to the...more

8/17/2015 - CEOs Disclosure Requirements Dodd-Frank Executive Compensation Median Employee Pay Ratio Regulation S-K Reporting Requirements SEC

Trinity Wall Street v. Wal-Mart Stores, Inc. - “Lawyers, Guns and Money”

On July 6, 2015 the Third Circuit Court of Appeals issued its eagerly awaited opinion in Trinity Wall Street v. Wal-Mart Stores, Inc., addressing the question of what constitutes a company’s ordinary business operations and...more

8/13/2015 - Appeals Board of Directors Ordinary Course of Business Defense Proxy Materials Shareholder Proposals Wal-Mart

SEC Radically Revamps Regulation A - Part 3

Reporting and Blue Sky Issues - For many years, SEC Regulation A languished as an exemption from registration that nobody really used. Although securities issued in a Regulation A offering are not “restricted...more

5/26/2015 - JOBS Act Regulation A Reporting Requirements SEC

SEC Radically Revamps Regulation A - Part 2

Contents of Offering Statement - For many years, SEC Regulation A languished as an exemption from registration that nobody really used. Although securities issued in a Regulation A offering are not “restricted...more

5/21/2015 - EDGAR Electronic Filing JOBS Act Offering Statements Regulation A Regulation D Rule 506 Rule 506 Offerings SEC Solicitation Venture Funding

SEC Radically Revamps Regulation A - Part 1

Eligibility and Offering Size - For many years, SEC Regulation A languished as an exemption from registration that nobody really used. Although securities issued in a Regulation A offering are not “restricted securities”...more

5/20/2015 - Accredited Investors Crowdfunding JOBS Act Private Equity Private Offerings Regulation A SEC Securities Exchange Act Small Business Startups

Third Circuit Lets Wal-Mart Exclude Firearms Proposal Under the “Ordinary Business Operations” Exception

On April 14, 2015, the U.S. Court of Appeals for the Third Circuit summarily reversed a troubling decision of the Federal District Court in Delaware that required Wal-Mart to include in its 2015 proxy materials a shareholder...more

4/16/2015 - Appeals Board of Directors Firearms Ordinary Business Exception Permanent Injunctions Proxy Statements Reversal SEC Securities Exchange Act Shareholder Proposals Wal-Mart

Supreme Court Decides Omnicare

When an Opinion May Be Considered a Statement of Fact - Overview: On March 24, 2015, the Supreme Court issued its ruling in Omnicare Inc. v. Laborers District Council Construction Industry Pension Fund, resolving a...more

4/7/2015 - Material Misstatements Omnicare Omnicare v Laborers District Council Pension Funds Pharmaceutical Industry SCOTUS Section 11 Securities Exchange Act Securities Fraud Statement of Opinion

SEC Charges KBR, Inc. with Using a Confidentiality Agreement that Could "Chill" Whistleblowing

About six months ago, the Director of the Office of the Whistleblower warned that the SEC was “going to bring a case where somebody has asked an employee or forced an employee to sign a document that in order of substance...more

4/7/2015 - Confidentiality Agreements Enforcement Actions Internal Investigations KBR (formerly Kellogg Brown & Root) Popular Rule 21F Rule 23(b)(2) SEC Whistleblower Protection Policies Whistleblowers

SEC Proposes Rules for Hedging Disclosure

On February 9, 2015, the SEC proposed rules that would require domestic public companies to disclose in proxy and information statements whether the company permits any of its directors or employees (including officers) to...more

2/18/2015 - Dodd-Frank Hedging Proxy Statements Public Disclosure Publicly-Traded Companies Regulation S-K SEC

SEC Proposes New Exchange Act Registration Thresholds and Changes to Certain “Held of Record” Definitions

On December 18, 2014, the Securities and Exchange Commission proposed new rules regarding the thresholds at which issuers may become reporting companies under Section 12(g) of the Securities Exchange Act of 1934, as amended...more

1/8/2015 - Accredited Investors JOBS Act Proposed Regulation Regulation D SEC Securities Exchange Act

Second Circuit Issues Landmark Decision Limiting Insider Trading Liability of "Remote Tippees"

On December 10, 2014, the Second Circuit Court of Appeals in New York reversed a set of insider trading convictions and reined in government prosecutions of insider traders who are outside the company in which stock is traded...more

12/22/2014 - Hedge Funds Illegal Tipping Insider Trading Material Nonpublic Information Personal Benefit Portfolio Managers Securities Securities Fraud US v Newman

SEC Continues Its “Strict Liability” Enforcement Campaigns, Focusing on Filing Failures and Rule 105 Violations

Nearly five years ago, the SEC launched an extensive "crackdown" on violations of Rule 105 of Regulation M, which prohibits short selling securities and then participating in secondary offerings of the same securities within...more

9/18/2014 - Compliance Disgorgement Enforcement Enforcement Actions Regulation M Rule 105 SEC

SEC Issues Staff Legal Bulletin No. 20: Clarifying Disclosure Requirements For Proxy Advisory Firms

Background - On June 30, 2014, the SEC’s Divisions of Investment Management and Corporation Finance released Staff Legal Bulletin No. 20, a set of thirteen Questions and Answers offering guidance on...more

7/22/2014 - Disclosure Requirements Proxy Advisors Proxy Solicitations SEC Securities Exchange Act Shareholders

SEC Issues Interpretive Advice About Verification Safe Harbors Under Rule 506(c)

The availability of the private placement exemption under SEC Rule 506 depends in large measure upon determinations that purchasers are “accredited investors” under the rules. Where there is no general solicitation, Rule...more

7/18/2014 - Accredited Investors General Solicitation JOBS Act Rule 506 Offerings Rule 506(c) Safe Harbors SEC

Supreme Court Revises Rules for Private Securities Class Actions

On June 23, 2014, in its widely anticipated ruling in Halliburton Co. v. Erica P. John Fund, the U.S. Supreme Court revised the ground rules for private securities class actions under Section 10(b) of the Securities Exchange...more

6/25/2014 - Basic v Levinson Class Certification Fraud Fraud-on-the-Market Halliburton Halliburton v Erica P. John Fund Presumption of Reliance SCOTUS Securities Fraud

Federal Appeals Court Largely Upholds Conflict Minerals Rules

On April 14, 2014, the United States Court of Appeals for the D.C. Circuit issued its much anticipated decision regarding the challenge to the Securities and Exchange Commission’s Conflict Minerals Rules. The Court largely...more

4/23/2014 - Conflict Mineral Rules First Amendment SEC Securities Litigation

SEC No-Action Letter Allows Certain Kinds of “M&A Brokers” to Avoid Broker-Dealer Registration Under the Exchange Act

On January 31, 2014, the SEC’s Division of Trading and Markets issued a significant no-action letter permitting the involvement of “M&A Brokers” in business acquisition transactions involving privately-held companies. The...more

2/24/2014 - Broker-Dealer No-Action Letters SEC Securities Exchange Act

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