R. Douglas Harmon

R. Douglas Harmon

Parker Poe Adams & Bernstein LLP

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Enforcement Heats Up at the SEC

Andrew Ceresney, Director of the SEC’s Division of Enforcement, gave the keynote address at last week’s Directors Forum 2016 in San Diego. In his speech, Mr. Ceresney made several points worth highlighting. First of all,...more

2/4/2016 - Audit Committee Disclosure Requirements Enforcement Actions Financial Reporting Sarbanes-Oxley SEC Tone At The Top

Overboarding–How Many Directorships are Too Many?

Every so often, the issue of “overboarding”—meaning directors serving on too many boards—pops up in the news or in corporate governance circles. On January 21st, a Wall Street Journal article by Joann S. Lublin entitled How...more

1/27/2016 - Corporate Governance Directors Overboarding

Corporate Governance Considerations in Light of the Yates Memo

Last fall, United States Deputy Attorney General Sally Yates released a memorandum titled “Individual Accountability for Corporate Wrongdoing.” The “Yates Memo” is the latest installment in a series of prosecution guidelines...more

1/20/2016 - Corporate Governance Corporate Officers DOJ Personal Liability Yates Memorandum

Insider Trading – An Update on Newman and Tippee Liability

You may recall that back in December 2014, the Second Circuit Court of Appeals, in United States v. Newman, et al., significantly limited the circumstances under which tippees of inside information may be held liable for...more

1/7/2016 - DOJ Insider Trading Personal Benefit Petition for Writ of Certiorari Precedential Opinion Tippees

PCAOB’s New Audit Disclosure Rule

Earlier this month the PCAOB adopted rules requiring audit firms to disclose the names of each audit partner and certain information regarding other audit firms participating in each audit. The new rules are subject to SEC...more

12/30/2015 - Audit Committee Audits Disclosure Requirements Filing Requirements New Regulations PCAOB SEC

Earnings Release Pitfalls and Reminders

It’s the time of year when calendar-year-end public companies gear up to release their annual earnings. Therefore, as you dust off last year’s earnings release, it may be helpful to consider some pitfalls experienced by even...more

12/18/2015 - Disclosure Requirements Financial Reporting GAAP Publicly-Traded Companies

Political Spending Disclosure Goes Mainstream

Political spending disclosure has had an irregular history, waxing and waning over the last decade according to a seminal Supreme Court decision, fluctuating SEC rulemaking and activist shareholder agendas and evolving views...more

12/1/2015 - Citizens United v Federal Election Commission Disclosure Political Contributions SCOTUS SEC Shareholder Proposals Transparency

New M&A Proxy Statement Unbundling Guidance

After a decade of inattention, the SEC staff has recently sought to clarify the still-murky proxy statement unbundling rule. First came three C&DIs issued back in January 2014 (see this Doug’s Note). Then just weeks ago, the...more

11/24/2015 - Merger Agreements New Guidance Proxy Statements SEC Securities Exchange Act Shareholder Approval

The PCAOB’s Enhanced Auditor Performance Standards–Be Sure You’re Ready

A little over a year ago the PCAOB issued new Auditing Standard No. 18, which enhanced auditor performance standards in three significant areas of a company’s audit: - Company relationships and transactions with related...more

11/18/2015 - Audits Corporate Governance Material Misstatements PCAOB Related Parties

A New Shareholder Proposal Staff Legal Bulletin–Just in Time for Proxy Season

Just in time for calendar year companies to begin receiving shareholder proposals, the SEC staff has released Staff Legal Bulletin No. 14H, which closes the loop on the controversy initiated by a Whole Foods proxy access...more

11/10/2015 - Directly Conflicts Factors No-Action Relief Proxy Access SEC Shareholder Proposals Whole Foods

Cybersecurity at Small and Midsize Businesses

Cyberattacks against the country’s largest companies tend to garner the most press coverage and generate the most cybersecurity anxiety. For example, such high profile companies as eBay, JP Morgan, Home Depot and Target are...more

10/28/2015 - Cyber Attacks Cybersecurity SEC

Prepping for Proxy Season

Every year about this time calendar-year-end companies should begin to prepare for the coming proxy season by looking back on lessons learned this year, considering recent SEC rulemaking and evaluating latest governance...more

10/22/2015 - Clawbacks Corporate Governance Executive Compensation Pay-for-Performance Proxy Access Proxy Season Publicly-Traded Companies Say-on-Pay SEC Shareholder Activism Shareholders Strategic Planning

The Profile of a Whistleblower

The SEC’s ongoing effort to strengthen its whistleblower program and broaden the universe of potential award recipients (see this Doug’s Note) has kept whistleblowing compliance at the forefront of most compliance and legal...more

10/9/2015 - Best Management Practices Employer Liability Issues Information Reports Retaliation SEC Whistleblower Awards Whistleblowers

Addressing Cybersecurity in Board Committee Charters

As boards of directors have become more focused on their fiduciary duties to oversee cybersecurity, new governance practices have begun to develop. For example, many companies have shifted cybersecurity oversight from the...more

9/30/2015 - Audit Committee Board of Directors Corporate Governance Cybersecurity Fiduciary Duty Oversight Committee Risk Management

What is a Public Benefit Corporation Anyway?

Kickstarter, the well-known crowdfunding website, recently made news by announcing that it has become a Delaware “public benefit corporation” under that state’s new (2013) PBC statute. For example, a New York Times headline...more

9/24/2015 - Crowdfunding Delaware General Corporation Law Kickstarter Public Benefit Corporation

NYSE Amends Its Notice and Trading Halt Rule

The New York Stock Exchange has amended Section 202.06 of the NYSE Listed Company Manual to: - expand the pre-market hours during which NYSE-listed companies must provide prior notice of material news, - expand the...more

9/22/2015 - Listing Rules NYSE Pre-Market Notification Publicly-Traded Companies

Watch Out for Non-GAAP Disclosure Creep

Creative use of non-GAAP financial measures has become standard practice in public company disclosures. Management, quite correctly in most cases, often believes that the company’s dry GAAP financial statements fail to fully...more

9/9/2015 - Best Practices Financial Reporting GAAP Non-GAAP Financial Measures Proxy Statements Publicly-Traded Companies Regulation S-K SEC

Good News for Compensation Committees

With executive compensation under fire from seemingly all directions these days, it’s nice to get some good news occasionally. In this case, that news comes via the Delaware Chancery Court’s recent decision in Friedman v....more

9/4/2015 - Board of Directors Business Judgment Rule Compensation Committee Corporate Governance Executive Compensation Fairness Standard Fiduciary Duty Publicly-Traded Companies Shareholders

Recent DGCL Amendments of Note

The Delaware General Assembly recently amended Delaware’s corporate statutes in several respects of interest to public companies. Boards may delegate stock issuances to non-directors....more

8/20/2015 - ATP Tours Board of Directors Bylaws Corporate Governance Delaware General Corporation Law Fee-Shifting Forum Selection Publicly-Traded Companies Restricted Stocks Stock Issuance

Pay Ratio Disclosure: Lemonade from Lemons

Well, the SEC’s new pay ratio rules are finally out. We’ve all known they were coming for quite some time, dating all the way back to their origin in 2010—Dodd-Frank’s Section 953(b) mandate—followed by the SEC’s proposed...more

8/11/2015 - Corporate Governance Disclosure Requirements Dodd-Frank Executive Compensation Final Rules Pay Ratio Popular Publicly-Traded Companies Regulation S-K SEC

What is Crowdfunding Anyway?

Rarely has a capital markets concept been more ambiguous, and potentially more confusing, than crowdfunding. It seems that everyone has his or her own definition, which sometimes varies depending on the circumstances. ...more

8/3/2015 - Capital Markets Charitable Donations Crowdfunding Enforcement Actions Entrepreneurs Financing FTC Kickstarter Popular Regulation D SEC Startups

Three Post-Proxy-Season Thoughts

For many companies, the period between Independence Day and Labor Day is a good time to absorb the lessons of the spring proxy season and to catch a corporate breath before the stretch run to the end of the year. With that in...more

7/23/2015 - Corporate Governance Ordinary Business Exception Proxy Access Rule Proxy Season Shareholder Proposals Shareholders

The SEC Considers Updating Audit Committee Disclosures

The SEC recently published a concept release seeking comment on the need for new audit committee disclosures. This follows on the heels of recent PCAOB pronouncements and proposals regarding audit engagement partner...more

7/14/2015 - Audit Committee Auditors Disclosure Requirements Emerging Growth Companies PCAOB Public Comment Publicly-Traded Companies Rulemaking Process SEC

At Last–the SEC’s Compensation Clawback Proposal

Some five years ago, Section 954 of the Dodd-Frank Act instructed the SEC to adopt rules mandating that national securities exchanges require listed companies to implement incentive compensation recovery (or clawback)...more

7/7/2015 - CEOs CFOs Clawbacks Dodd-Frank Executive Compensation Incentive Compensation Publicly-Traded Companies Sarbanes-Oxley SEC

The Interplay of Regulation FD and Stock Exchange Timely Alerts

For many years, Regulation FD has dominated the analysis of how and when a company should disclose material information. As a result, complying with the stock exchanges’ timely alert rules can get lost in the shuffle....more

7/3/2015 - Form 8-K Regulation D Regulation FD SEC

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