Stephen M. Quinlivan

Stephen M. Quinlivan

Stinson Leonard Street

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CFTC’s Massad on End-Users

CFTC Chair Timothy G. Massad delivered a speech on the importance of providing flexibility in the CFTC’s regulations to accommodate hedging by commercial end-users of derivatives. Mr. Massad highlighted the following...more

2/27/2015 - CFTC Derivatives End-Users Hedging

Supreme Court Interprets Sarbanes-Oxley Evidence Destruction Provisions

We now know that Sarbanes-Oxley does not apply to fish . . . While conducting an offshore inspection of a commercial fishing vessel in the Gulf of Mexico, a federal agent found that the ship’s catch contained...more

2/26/2015 - Destruction of Evidence Evidence Fishing Industry Government Investigations Sarbanes-Oxley SCOTUS

ISS Speaks: Proxy Access, Fee Shifting By-laws and More

ISS has published its policy on proxy access matters. ISS will generally recommend in favor of management and shareholder proposals for proxy access with the following provisions...more

2/20/2015 - Bylaws Fee-Shifting ISS Proxy Access Rule Proxy Season Shareholder Proposals Shareholders

Bad Actor Disqualifications Are Not Sanction Enhancements

SEC Commissioner Daniel M. Gallagher delivered a speech where he considered the role of bad actor disqualifications in the context of the SEC’s enforcement initiatives. According to the Commissioner, the purpose of bad actor...more

2/16/2015 - Bad Actors Disqualification Enforcement Enforcement Actions SEC

Sandy Hook Parents and Securities Law Professors Support Trinity Wall Street; Wal-Mart Replies

A group comprised of parents whose children or spouses were victims in the Sandy Hook tragedy, together with the Law Center to Prevent Gun Violence, have filed a brief in support of Trinity Wall Street in a case where...more

2/16/2015 - Board of Directors Sandy Hook SEC Shareholder Proposals Wal-Mart

ISS Publishes Industry Group US TSR Medians

ISS has published Industry Group US TSR Medians for Performance-Related Policies. The publication was solely for informational purposes. Company performance relative to industry medians is incorporated into ISS’...more

2/13/2015

GE and Others Voluntarily Adopt Proxy Access

GE has voluntarily adopted a proxy access by-law proposal. The by-law permits a shareowner, or a group of up to 20 shareowners, owning 3% or more of the Company’s outstanding common stock continuously for at least three...more

2/12/2015 - Board of Directors Bylaws General Electric Proxy Access Rule Shareholder Proposals Shareholders

CFOs Agree to Sarb-Ox Clawback

Two former CFOs have agreed to return nearly a half-million dollars in bonuses and stock sale profits they received while their Silicon Valley software company, Saba Software, was committing accounting fraud. While...more

2/11/2015 - Clawbacks Financial Statements Personal Liability Sarbanes-Oxley SEC Securities Securities Fraud

SEC Proposes Hedging Disclosures Regarding Directors, Officers and Employees

The SEC has proposed rules to implement Section 955 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, as codified in Section 14(j) of the Exchange Act, which requires annual meeting proxy statement disclosure...more

2/10/2015 - Annual Meeting Board of Directors Disclosure Requirements Dodd-Frank Equity Securities Hedging Proposed Regulation Proxy Statements SEC Securities Exchange Act

SEC Denies No-Action Request for “Publisher Exclusion” for Recommendations of Crowdfunded Investments

The SEC denied a no-action request that was submitted by Jonathon Hendricks. The no-action request inquired about a Wyoming based business that would make available a list of securities from a loan crowdfunding site that...more

2/5/2015 - Crowdfunding Investment Advisers Act of 1940 Publishers SEC Securities

Trinity Wall Street Responds in Appeal of Exclusion of Shareholder Proposal

Currently before the Third Circuit is Trinity Wall Street v. Wal-Mart Stores, Inc. The case involves whether Wal-Mart can exclude a shareholder proposal under the “ordinary business exception” to Rule 14a-8. Trinity...more

2/5/2015 - Appeals Corporate Governance No-Action Letters Rule 14a-8 SEC Shareholder Litigation Shareholder Proposals Shareholders Wal-Mart

Bad Actor Waivers and Conditions – The Controversy Continues

In a prior blog we discussed a Regulation D bad actor waiver granted to Oppenheimer & Co. that imposed conditions on the receipt of the waiver. The waiver provided “Oppenheimer will comply with the conditions stated in its...more

2/5/2015 - Bad Actors Legislative Agendas Oppenheimer & Co. Regulation D SEC Waivers

Court Finds Agreement to Arbitrate in Home Mortgage Invalid

The United States District Court For The Southern District Of Mississippi, Southern Division, recently found an agreement to arbitrate in a home mortgage was invalid in Richards v. Gibson. The court cited 15 U.S.C. §...more

2/3/2015 - Arbitration Arbitration Agreements Dodd-Frank Mortgages

Forms and Tools for the Minnesota Revised Uniform Limited Liability Company Act

The effective date of the Minnesota Revised Uniform Limited Liability Company Act, August 1, 2015, is rapidly approaching. The following materials are available to implement the Act...more

2/3/2015 - Amended Legislation Business Formation Limited Liability Companies

Issuer Welcomes Shareholder Proposal

A coalition of investors submitted a shareholder resolution to Royal Dutch Shell plc. The resolutions titled ‘Strategic Resilience for 2035 and Beyond’ call for company disclosures on: - ongoing operational emissions...more

2/2/2015 - Corporate Governance Proxy Access Rule Royal Dutch Shell SEC Shareholder Proposals Shareholders

End-Users Are Dodd-Frank Collateral Damage According To CFTC Commissioner

CFTC Commissioner J. Christopher Giancarlo recently delivered remarks where he stated “Unfortunately, caught up in some of the collateral damage surrounding the Dodd-Frank reforms were the traditional commodity and energy...more

1/30/2015 - Agriculture CFTC Dodd-Frank End-Users Energy Sector Financial Regulatory Reform Market Participants Nonbank Firms Threshhold Requirements

PCAOB Alerts on Deficiencies in Broker-Deal Audits

The first five inspections of broker-dealer audit and new attestation engagements subject to PCAOB standards show deficiencies in the auditors’ application of these standards according to the PCAOB. The requirement to...more

1/29/2015 - Annual Reports Auditors Audits Broker-Dealer PCAOB SEC

SEC Grants Second Bad Actor Waiver With Conditions

SEC Commissioner Kara Stein recently described what many saw as a possible model for harsher bad actor waivers after settling a matter with the SEC. According to Ms. Stein “The waiver was for a limited time, and only if...more

1/28/2015 - Bad Actors Enforcement Actions Oppenheimer & Co. Rule 506 Offerings SEC Waivers

Business Roundtable Gives ISS its Views on Proxy Access

The SEC Division of Corporation Finance recently informed public companies that it will express no views on the application of Rule 14a-8(i)(9) during the current proxy season. The Corp Fin decision leaves public companies...more

1/26/2015 - Corporate Governance Glass Lewis ISS Proxy Access Rule Proxy Season Publicly-Traded Companies Rule 14a-8 SEC Shareholder Proposals Shareholders

Amicus Briefs Pour in for Wal-Mart Shareholder Proposal Case

Amicus briefs are pouring in in favor of Wal-Mart in its appeal to the Third Circuit. Wal-Mart appealed the United States District of Delaware’s decision that denied Wal-Mart the right to exclude a shareholder proposal...more

1/26/2015 - Appeals Corporate Governance Investment Funds NAM No-Action Letters SEC Shareholder Litigation Shareholder Proposals Shareholders Wal-Mart

Interchange Fee Battle Comes to an End

The United States Supreme Court has denied a petition for a writ of certiorari in NACS, fka National Association of Convenience Stores, et al., v. Board of Governors of the Federal Reserve System. The denial effectively ends...more

1/22/2015 - Debit Cards Federal Reserve Interchange Fees NACS v Federal Reserve Board Petition for Writ of Certiorari Retailers SCOTUS

2nd Circuit Says MD&A Rules Provide Basis for 10b-5 Claims

In Stratte-McClure v. Morgan Stanley et al, the Second Circuit held that MD&A rules set forth in Item 303 of Regulation S-K can give rise to a Rule 10b-5 claim. In so doing, the Second Circuit split with the Ninth Circuit...more

1/19/2015 - Credit Default Swaps Material Disclosures Morgan Stanley Public Disclosure Regulation S-K Section 10(b)-5

No More SEC No-Action Letters on Proxy Access Proposals

Responding to investor pressure, and pressure by shareholder proponents, the SEC Division of Corporation Finance issued this statement: “In light of Chair White’s direction to the staff to review Rule 14a-8(i)(9) and...more

1/19/2015 - Mary Jo White No-Action Letters Proxy Season SEC Shareholder Proposals Shareholders

Wal-Mart Explains Exclusion of Shareholder Proposal to Third Circuit

Wal-Mart appealed the United States District of Delaware’s decision that denied Wal-Mart the right to exclude a shareholder proposal submitted by Trinity Wall Street. The District Court held that the SEC was incorrect when...more

1/16/2015 - No-Action Letters SEC Shareholder Litigation Shareholder Proposals Shareholders Wal-Mart

Chancery Explains New Delaware Statute of Limitations

In Bear Stearns Mortgage Funding Trust 2006-SL1 v. EMC Mortgage LLC et al, the Delaware Court of Chancery explained the operation of Section 8106(c) of the Delaware statutes for the first time. The results are surprising to...more

1/14/2015 - Bear Sterns Breach of Contract Merger Agreements Purchase Agreement Representations and Warranties Statute of Limitations

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