R. Douglas Harmon

R. Douglas Harmon

Parker Poe Adams & Bernstein LLP

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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

UK “Leave” Vote Disclosures–What Now?

In case you missed it, the United Kingdom voted last week to leave the European Union. And while this clearly is a huge global development (if the stock markets, currency exchange rates and headline type sizes are any...more

6/27/2016 - Capital Markets David Cameron Disclosure Requirements EU Financial Services Industry Form 10-K Form 10-Q Form 8-K Publicly-Traded Companies Referendums Regulation S-K Resignation SEC UK UK Brexit

The NLRB Continues to Monitor Social Media Policies

According to this EmployNews report, the National Labor Relations Board continues to interpret the National Labor Relations Act to prohibit social media policies that restrict employees’ ability to publically complain about...more

6/14/2016 - ALJ Chipotle Grill NLRA NLRB Protected Concerted Activity Section 7 Social Media Policy Termination Unfair Labor Practices

(Too) Much Ado About (Almost) Nothing–The Recent Form 10-K Amendment

Borrowing the title of one of Shakespeare’s most famous comedies seems somehow appropriate to describe last week’s amendment to Form 10-K, which formalizes a company’s ability to include a business and financial summary in...more

6/8/2016 - Disclosure Requirements Fixing America’s Surface Transportation Act (FAST Act) Form 10-K Interim Rule SEC

Practical Tips for Effective Corporate Compliance

SEC personnel frequently speak publicly on a variety of topics. Some speeches are less than memorable, while others so perfectly capture the essence of a subject and provide such practical insight that it would be a shame for...more

6/2/2016 - Compliance Corporate Culture Corporate Governance Risk Assessment Risk Management SEC

New SEC Guidance Helps Close the GAAP

As recently as last month I wrote about the SEC’s heightened focus on non-GAAP financial measure disclosures, evidenced by recent pronouncements from SEC Chair Mary Jo White, PCAOB Chair James R. Doty, SEC Commissioner Kara...more

5/24/2016 - C&DIs EBITDA Financial Reporting GAAP Non-GAAP Financial Measures SEC

New Auditor Disclosures and Filing Requirements

As expected, the SEC last week approved rules proposed by the PCAOB last December that further the PCAOB’s ongoing efforts to enhance audit disclosure practices. The rules require auditors to file with the PCAOB a new Form...more

5/17/2016 - Auditors Audits Disclosure Requirements Filing Requirements New Regulations PCAOB SEC

Accounting Standard Transition Disclosures–A Reminder from the SEC

New accounting standards appear with metronomic regularity. Some are minor and technical, while others clearly will have major consequences once they take effect. ...more

5/10/2016 - Accounting Standards FASB SEC

The Quiet Demise of Director Meeting Fees

As director duties have become increasingly burdensome and complex, companies have responded with variations on, and additions to, the traditional fee arrangements. It is now common to see equity awards of various...more

5/9/2016 - Board of Directors Corporate Officers Directors Executive Compensation

The SEC’s New Registration Fee Estimator

The accurate and timely payment of SEC filing fees can be surprisingly challenging, particularly since it is often one of the last tasks performed in the scramble before a filing. The SEC has over the years attempted, with...more

4/29/2016 - Capital Raising Corporate Issuers Filing Fees Registration SEC

The SEC’s Non-GAAP Drumbeat Grows Louder

Last year I wrote about the hazards of “non-GAAP disclosure creep,” which can occur as companies become increasingly aggressive with their use of non-GAAP financial measures or simply become bogged down as more and more...more

4/19/2016 - Financial Reporting Mary Jo White Non-GAAP Financial Measures PCAOB Regulation S-K SEC

New SEC Guidance on Proxy Card Descriptions

Amazingly, the SEC staff continues to scrutinize Securities Exchange Rule 14a-4(a)(3)’s proxy card parameters. As you may recall, the staff recently grappled with the ever-murky “unbundling” aspect of that rule: first via...more

4/6/2016 - Management Proposals New Guidance Proxy Access Proxy Materials Proxy Season SEC Securities Exchange Act Shareholder Proposals

International Reporting Tightens at NYSE as Competition from Europe Heats Up

Two recent events highlight the ever-shifting dynamic between U.S. and international capital markets. The first, a technical NYSE rule affecting the reporting obligations of foreign private issuers, was subtle. The second,...more

3/31/2016 - Capital Markets Delisting EU Foreign Private Issuers London Stock Exchange Mergers Nasdaq NYSE Reporting Requirements SEC

The Next Level of Investor Communication

Last year about this time General Electric made a splash with its revamped Form 10-K, which it augmented with a short video introduction from its CEO, Jeff Immelt. This year, GE launched what it calls an Integrated Summary...more

3/25/2016 - Annual Reports Form 10-K General Electric Investors Proxy Statements Risk Management Shareholders Social Media Sustainability Websites

The New Lease Accounting Standard–What Lawyers Need to Know Now

With calendar year-end Form 10-K filings almost completed, you may have noticed the addition of Accounting Standards Update No. 2016-02 “Leases (Subtopic 842)” to the MD&A subsection addressing new accounting standards. In...more

3/16/2016 - Accounting Standards Balance Sheets FASB Form 10-K GAAP Leases SEC

The Fundamentals of Social Media Communication Compliance

Communication via social media is now standard practice, to some extent, at almost all public companies. What once seemed limited to technology and other “forward-thinking” companies has now made its way into the even the...more

3/4/2016 - Material Nonpublic Information Popular Public Disclosure Risk Management SEC Social Media Social Media Policy

Considering Stewardship and Corporate Governance in the UK

A recent announcement regarding the UK’s Stewardship Code serves as a reminder of the current similarities and differences between the US and UK corporate governance schemes, as well as their ongoing convergence. By way...more

2/25/2016 - Asset Management Conflicts of Interest Corporate Governance Financial Reporting Institutional Investors Public Disclosure Publicly-Traded Companies Third-Party Service Provider UK

Mixed Enforcement Messages (and What’s in a Name?)

Not long ago I wrote about a speech by Andrew Ceresney, Director of the SEC’s Division of Enforcement, at the Directors Forum 2016 in San Diego. In his speech, Mr. Ceresney made a point of noting the SEC’s continuing...more

2/19/2016 - Board of Directors Cyber Attacks DOJ Enforcement Individual Accountability Risk Management SEC Yates Memorandum

Beefing Up Director Compensation Disclosures

With calendar year companies currently in the midst of drafting their proxy statements, it is time to consider the often overlooked director compensation disclosures. Changes in director compensation...more

2/16/2016 - Board of Directors Compensation Committee Director Compensation Disclosure Requirements Entire Fairness Standard Equity Compensation Executive Compensation Proxy Statements SEC

It’s Time Again (sigh) for Conflict Minerals

Year three of conflict minerals reporting is fast approaching, with Form SD filings due on May 31st. The good news, and the bad news, is that not much has changed since last year....more

2/9/2016 - Conflict Mineral Rules Corporate Counsel First Amendment IPSA Reporting Requirements SEC

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