R. Douglas Harmon

R. Douglas Harmon

Parker Poe Adams & Bernstein LLP

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Election Result Risk Factors

January is a good time for calendar-year-end companies to re-evaluate, and update as necessary, their Form 10-K risk factors. This year in particular, the November election results introduce a wide range of new considerations...more

1/17/2017 - Corporate Governance Form 10-K Regulation S-K Risk Assessment Trump Administration

Fixing the Shareholder Proposal Process

Battles over proxy access have taken center stage over the past few years in the form of activist shareholder proposals and proposed SEC rulemaking. Now Business Roundtable is suggesting that the entire Rule 14a-8 shareholder...more

1/9/2017 - Corporate Governance Proxy Season Rule 14a-8 Shareholder Proposals

Frequent Topics for SEC Comment

Every year about this time various organizations compile surveys of, and provide analysis regarding, SEC comment letters issued during the recent year. This can be a useful predictor of hot topics for the coming year and...more

1/3/2017 - Disclosure Requirements SEC SEC Comment Letter Process

Tips for Seeking Shareholder Approval of Equity Benefit Plans

Most public companies regularly submit equity benefit plans to their shareholders for approval. As a general rule, both NYSE and Nasdaq require that every new benefit plan, and any material amendment to an existing plan, be...more

12/27/2016 - Employee Benefits Equity Compensation ERISA Executive Compensation Institutional Investors IRS Publicly-Traded Companies Say-on-Pay Shareholder Approval

A Say-on-Frequency Reminder

The proxy rules require that public companies submit a proposal to their shareholders every six years regarding how often they should have say-on-pay votes, known as “say-on-frequency”. Most companies held their first...more

12/9/2016 - Corporate Governance Executive Compensation Form 8-K Proxy Statements Say-on-Pay

Loss Contingency Disclosures - A Warning from the SEC

Companies frequently struggle with how to account for loss contingencies and when to make the related disclosures. A recent complaint by the SEC against RPM International, Inc. and its General Counsel highlights the...more

12/6/2016 - Accounting Standards Audit Committee DOJ Enforcement Actions Federal Contractors Loss Contingencies SEC

The FTC’s New Data Breach Response Guide (and a Reminder)

The two-pronged mission of the Federal Trade Commission is to protect consumers and promote competition. According to the FTC’s website, protecting consumers includes “stopping unfair, deceptive or fraudulent practices in the...more

11/22/2016 - Cybersecurity Data Breach Data Security FTC Hackers Personally Identifiable Information

Accounting Standard Transition Disclosures under Scrutiny by the SEC

Several significant new accounting standards have refocused the SEC staff’s attention on public company “transition disclosures.” In remarks earlier this year, Wesley R. Bricker, then Deputy Chief Accountant of the SEC,...more

11/16/2016 - Accounting Standards Disclosure Requirements FASB Publicly-Traded Companies SEC

Overdue Relief from Sending Glossy Annual Reports to the SEC

It is well known that Securities Exchange Act Rule 14a-3 requires a public company to send an annual report to its shareholders (or provide access to an annual report) when it holds a meeting to elect directors. Less well...more

11/8/2016 - Annual Reports C&DIs EDGAR Form 10-K Publicly-Traded Companies SEC

SEC Proposes Rules to Require Universal Proxy Cards and other Changes

As SEC Chair Mary Jo White indicated in a June 2015 speech at the Society of Corporate Secretaries and Governance Professionals National Conference in Chicago, the SEC has now proposed new rules to modify the venerable proxy...more

11/2/2016 - Board of Directors Corporate Counsel Corporate Governance Dissident Shareholders Mary Jo White Proposed Regulation SEC Universal Proxy Cards

Pay Ratio Disclosure Guidance from the SEC (and a Reminder)

As everyone knows by now, the SEC adopted new pay ratio disclosure rules in August 2015. The good news back then was that the rules are effective for compensation during the first fiscal year beginning on or after January 1,...more

10/25/2016 - C&DIs Disclosure Requirements Executive Compensation Pay Ratio Regulation S-K SEC

Section 16 Reporting: The SEC is Watching

It is easy to become complacent about Section 16 reporting. Sometimes it seems that the only people paying any attention to Forms 3, 4 and 5 are plaintiffs’ attorneys looking for short-swing profit transactions. Does the SEC...more

10/21/2016 - Enforcement Actions False Statements Misappropriation Reporting Requirements SEC Section 16 Unjust Enrichment

T+2 is on the Way (Finally)

At long last, the SEC has proposed amendments to its rules that would shorten the standard settlement period for securities transactions from three business days (T+3) to two business days (T+2). The proposal… The...more

10/11/2016 - Broker-Dealer Proposed Amendments SEC Securities Exchange Act

Tandy Reps are No More

The SEC announced on October 5th that, effective immediately, “Tandy” representations are no longer required in company responses to SEC comment letters. Practically speaking, this requires only a simple template modification...more

10/10/2016 - Disclosure Requirements SEC SEC Comment Letter Process Tandy Letter

Limits on 401(k) Plan Brokerage Windows

Many companies have recently modified their 401(k) plans to add a “brokerage window,” sometimes also known as a “self-directed account” or “self-directed brokerage account.” Rather than limiting participants to specified...more

9/27/2016 - 401k Brokerage Accounts Employee Stock Purchase Plans Retirement Plan Securities Act of 1933

Quiet Period Best Practices

The insider trading policies of almost all public companies contain closely monitored “black out” periods that prohibit trades by designated classes of employees during certain periods in the company’s SEC reporting cycle....more

9/20/2016 - Blackout Rules Corporate Governance Insider Trading Regulation FD SEC

IEX: The New Slower-is-Better Securities Exchange

In case you missed it, Investors’ Exchange LLC (IEX), which the SEC approved last June as the first new national stock exchange since 2010, began operations on September 2, 2016 according to its website. This is newsworthy...more

9/12/2016 - Administrative Interpretation Investors' Exchange (IEX) Regulation NMS SEC

Exhibit Hyperlinks are Coming

Last week, the SEC proposed rule amendments that would require companies to include a hyperlink to each exhibit listed in the exhibit index of a registration statement, periodic report or current report. The new rules would...more

9/7/2016 - Comment Period EDGAR Electronic Filing Proposed Amendments Registration Statement Regulation S-K SEC

Non-GAAP Disclosure Controls and Procedures

It seems that everyone is focused on non-GAAP financial measures these days, including the SEC. As has been exhaustively reported, SEC Chair Mary Jo White fired the first shot across public company bows back in December 2015,...more

8/30/2016 - C&DIs Mary Jo White Non-GAAP Financial Measures PCAOB Publicly-Traded Companies

The SEC Nixes Contractual Waivers of Whistleblower Recoveries

In April 2015, the SEC announced in a first-of-its-kind enforcement action that certain KBR, Inc. confidentiality agreements violated the whistleblower protections of the Dodd-Frank Act by requiring employees and former...more

8/22/2016 - BlueLinx Holdings Dodd-Frank Enforcement Actions Health Net KBR (formerly Kellogg Brown & Root) Rule 21F SEC Severance Agreements Whistleblower Protection Policies

The Rise of Principles-Based Corporate Governance

In late July, executives at thirteen major companies and investor institutions published and widely advertised their “Commonsense Principles of Corporate Governance” for public companies, boards of directors and shareholders....more

8/9/2016 - Board of Directors Corporate Counsel Corporate Governance Publicly-Traded Companies Reporting Requirements Shareholder Rights Succession Planning

New Nasdaq Disclosure Requirement–Third-Party Payments to Directors

Effective August 1, 2016, new Nasdaq Rule 5250(b)(3) requires Nasdaq-listed companies to disclose the material terms of all agreements and arrangements between a director or director nominee and a third party related to...more

8/4/2016 - Board of Directors Corporate Governance Material Disclosures Nasdaq Regulation S-K SEC Third Party Payments

Tips for Preclearing Insider Trades

Insider trading policies are among the most detailed and confusing of all corporate polices. And though they are not required by any SEC or stock exchange rule, virtually every public company has one. Included in almost every...more

7/29/2016 - Aiding and Abetting Insider Trading Material Nonpublic Information Policies and Procedures Preclearance Publicly-Traded Companies Reporting Requirements

New SEC Guidance for Rule 144A/Exxon Capital Debt Exchanges

For decades companies have privately issued nonconvertible debt securities to large, sophisticated investors (usually in a Rule 144A transaction) and agreed to exchange those unregistered securities for subsequently issued,...more

7/19/2016 - CDIs Debt Securities Exchange Offer Institutional Investors New Guidance No-Action Letters Non-Convertible Debt Securities Rule 144A SEC Securities Act of 1933

Sustainability Reporting Gains Momentum

A couple of years ago I suggested that companies should consider adding new, or enhancing their existing, sustainability disclosures. The trend toward sustainability (frequently known as “ESG” for environmental, social and...more

7/12/2016 - Corporate Governance Corporate Social Responsibility Disclosure Requirements Financial Reporting Mary Jo White Regulation S-K SEC Sustainability Sustainable Business Practices

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