Stephen M. Quinlivan

Stephen M. Quinlivan

Stinson Leonard Street

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States File First Brief in Regulation A+ Challenge

Montana and Massachusetts have filed their first brief in their Regulation A+ challenge. They are not happy because Tier 2 offerings under Regulation A+ preempt state review of the offering. Under the text of the rule Tier 2...more

8/28/2015 - Chevron Deference Financial Markets Financial Sector Investors JOBS Act Preemption Qualified Purchaser Regulation A Regulation D SEC Securities Act Tier 2 Offerings Title IV

Court Examines Disclosure Duties in Consent Solicitaion Removing Directors

In Kerbawy v. McDonnell, the Delaware Court of Chancery affirmed the validity of a solicitation of written consents that removed certain directors and appointed new directors. A key theme of the opinion is that stockholders...more

8/27/2015 - Board of Directors Controlling Stockholders Declaratory Judgments Directors Disclosure Former Directors Solicitation Stockholder Agreements Written Consent

Conflict Minerals Rule Still Unconstitutional After Rehearing

The United States Court of Appeals for the District of Columbia issued its decision on the conflict minerals rule after a rehearing. In National Association of Manufacturers, et al, v. SEC, the Court adhered to its original...more

8/19/2015 - Conflict Mineral Rules First Amendment NAM SEC

Court Reviews Validity of Escrow Claims

Gore, et al., v. Al Jazeera America Holdings I, Inc. emphasizes not only the necessity to carefully draft indemnification claim provisions in merger agreements but the need to carefully draft indemnification claims as well....more

8/14/2015 - Compliance Escrow Accounts Indemnification Merger Agreements

SDNY Enjoins SEC Administrative Proceeding

In Duka v. SEC, the District Court for the Southern District of New York entered a preliminary injunction to enjoin an SEC administrative proceeding because the proceeding is “likely unconstitutional.” The court gave the same...more

8/13/2015 - ALJ Appointments Clause DOJ Preliminary Injunctions SEC

Update on Proxy Puts

Strike suits against public companies for “dead hand proxy put” provisions in credit agreements have recently attracted a lot of attention. A “dead hand proxy put” provides for the acceleration of amounts outstanding under a...more

8/13/2015 - Attorney's Fees Credit Agreements MGM Proxy Put Publicly-Traded Companies SEC Settlement

SEC Adopts Final Pay Ratio Rule

The SEC has adopted a final “pay ratio” rule required by Section 953(b) of the Dodd Frank Act. In general, the “pay ratio” rule requires public companies to disclose the median of the annual total compensation of all...more

8/10/2015 - Compliance Disclosure Requirements Dodd-Frank Emerging Growth Companies Executive Compensation Final Rules Foreign Private Issuers Form 10-K Item 402 Pay Ratio Proxy Statements Regulation S-K SEC

SEC Explains How to Form a Pre-Existing Relationship Using the Internet; New CDI’s Issued

The SEC granted no-action relief to Citizen VC, Inc. which appears to state, although subject to facts and circumstances, a pre-existing relation can be formed with a person that first contacts a seller of securities over the...more

8/7/2015 - Accredited Investors Compliance Emerging Growth Companies Financial Markets Internet Investment Investment Management No-Action Relief Online Platforms Regulation D Rule 506 Offerings Rule 506(c) SEC Section 502 Securities Act Venture Capital

SEC Bolsters Whistleblower Anti-Retaliation Rules Through Interpretive Guidance

There has been a debate about whether a whistleblower must report information about a violation of securities laws to the SEC, as opposed to internal reporting, to qualify for protection under the anti-retaliation provisions...more

8/5/2015 - Anti-Retaliation Provisions Dodd-Frank Internal Reporting Popular Rule 21F SEC Securities Exchange Act Whistleblowers

Option Holders Cannot be Burdened With Escrow in Merger Transaction

In Fox v. CDX Holdings, Inc., the Delaware Court of Chancery held that option holders could not be burdened by an escrow imposed on equity holders in a merger transaction when the terms of the option plan did not permit the...more

7/29/2015 - Equity Investors Escrow Accounts Fair Market Value Stock Options Stocks

Bank Has Standing to Challenge Constitutionality of CFPB

In State National Bank of Big Spring v. Lew, the United States Court of Appeals for the District of Columbia Circuit ruled that the plaintiff had standing to challenge the constitutionality of the CFPB. The Court made quick...more

7/24/2015 - Appeals Banking Sector Banks CFPB Enforcement Actions Financial Institutions FSOC GE Capital Retail Bank Recess Appointments Richard Cordray Standing

Court Permits Settlement of Appraisal Demands on Terms Not Available to All Dissenters

Tiny deals can bring large complications. Mannix v. PlasmaNet, Inc. involved appraisal rights in a merger where the merger consideration, after adjustments, amounted to $114,000, to be split amongst 19,307,715 shares, or...more

7/22/2015 - Appraisal Attorney's Fees Dissenters Rights Fair Valuation Pro Rata Sharing Stocks

Fed Approves Rule Requiring Largest Banks To Further Strengthen Capital

The Federal Reserve Board approved a final rule requiring the largest, most systemically important U.S. bank holding companies to further strengthen their capital positions. Under the rule, a firm that is identified as a...more

7/21/2015 - Bank Holding Company Banking Sector Banks Dodd-Frank Financial Institutions FRB Global Systemically Important Financial Institutions (GSIFI)

SEC Grants Relief From Risk Retention In Refinancing Transaction

The SEC granted Crescent Capital Group LP no-action relief if it does not retain an eligible risk retention interest under Section 15G of the Securities and Exchange Act of 1934 in connection with a refinancing of CLOs that...more

7/20/2015 - Collateralized Loan Obligations Investors Loans No-Action Relief Refinancing Risk Retention SEC Securities Exchange Act

Agencies Provide Guidance On Seeding Period for Volcker Rule

The staffs of the agencies responsible for administering the Volcker Rule have again updated the Volcker Rule FAQs. A new FAQ notes that the rule implementing the Volcker Rule and the accompanying preamble make clear that a...more

7/20/2015 - Banking Sector Banks Dodd-Frank Federal Reserve Financial Institutions Investment Companies Proprietary Trading RICs Volcker Rule

Briefing on Regulation A+ Challenge to Extend Though November

The United States Court of Appeals for the District of Columbia has entered a briefing schedule in Montana’s and Massachusetts’ challenge to Regulation A+. The states’ briefs are due August 26, the SEC’s brief is due...more

7/20/2015 - Appeals Capital Markets Financial Markets Investors JOBS Act Registration Requirement Regulation A SEC Small Business Tier 2 Offerings

One Tardy Whistleblower Wins SEC Award, One Loses

The SEC announced a whistleblower award of more than $3 million to a company insider whose information helped the SEC crack a complex fraud. The multi-million dollar payout is the third highest award to date under the SEC’s...more

7/20/2015 - Dodd-Frank Enforcement Actions SEC Whistleblower Awards Whistleblowers

SEC Cannot Use Dodd-Frank Bans Retroactively

Section 925(a) of the Dodd-Frank Act expanded a remedy for certain violations of securities laws form barring association with broker-dealers to a bar that includes municipal advisors, rating organizations and other regulated...more

7/15/2015 - Broker-Dealer Dodd-Frank Municipal Advisers Retroactive Application SEC

FASB Defers Effective Date of New Revenue Recognition Standard

Audit committees, CFOs and accountants everywhere are cheering as the FASB has deferred the effective date of its new revenue recognition standard. As a result, public business entities, certain not-for-profit entities, and...more

7/10/2015 - Accountants Audit Committee CFOs Employee Benefits FASB Financial Accounting Reporting Requirements Revenue Recognition Standard

SEC Proposes Clawback Rule for Executive Compensation

On July 1, 2015, the Securities and Exchange Commission (the “SEC”) proposed rules to implement Section 954 of the Dodd-Frank Act, which added Section 10D to the Securities Exchange Act of 1934. Section 10D requires the...more

7/10/2015 - Clawbacks Compliance Dodd-Frank Executive Compensation Reporting Requirements SEC Section 10D Securities Exchange Act

Third Circuit Issues Decision in Wal-Mart Case

The Third Circuit has issued its decision in the case of Trinity Wall Street v Wal-Mart Stores, Inc. To try and put it simply, Wal-Mart argued Trinity’s shareholder proposal dressed up a matter related to the ordinary...more

7/8/2015 - Corporate Governance Rule 14a-8 SEC Shareholder Litigation Shareholder Proposals Shareholders Trinity Wall Street Wal-Mart

SEC Proposes Clawback Rules—A Comprehensive Summary

The SEC has proposed new rules to implement Section 954 of the Dodd-Frank Act, which added Section 10D to the Securities Exchange Act of 1934. Section 10D requires the Commission to adopt rules directing the national...more

7/3/2015 - Clawbacks Corporate Governance Disclosure Requirements Dodd-Frank Executive Compensation Form 10-K Incentive Compensation New Regulations Regulation S-K SEC Section 10D Total Shareholder Return (TSR)

Executive Compensation Paid to Controlling Shareholders Subject to Business Judgment Review When Approved by an Independent...

Members of the Dolan family hold 73% of the voting power of Cablevision Systems Corporation’s stock. A shareholder commenced a derivative action regarding the executive compensation paid to Dolan family members serving as...more

7/2/2015 - Business Judgment Rule Compensation Committee Controlling Stockholders Executive Compensation Shareholder Litigation Shareholders

Vanishing Regulation A+ Filings

The initial filings seemed to be of low quality. I feel for the SEC staff, because it appears they will have their hands full as people lob in poorly conceived filings. It appears they will have to do more babysitting than...more

6/29/2015 - Capital Formation Regulation A SEC

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