Stephen M. Quinlivan

Stephen M. Quinlivan

Stinson Leonard Street

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SEC Issues Guidance on What Makes Non-GAAP Measures Misleading

The SEC issued four new Compliance and Disclosure Interpretations on non-GAAP financial measures. According to the CDIs: - Certain adjustments, although not explicitly prohibited, may result in a non-GAAP measure that...more

5/18/2016 - CDIs Non-GAAP Financial Measures SEC

Crowdfunding Begins With 17 Issuers

Monday May 16, 2016 was the first day JOBS Act Title III crowdfunding could be used. Below are links to some portals and other information....more

5/17/2016 - Capital Raising Crowdfunding FINRA Funding Portal JOBS Act Offerings SEC Title III

SEC Enforcement Chief Gives Update on Private Equity

Andrew Ceresney, Director, SEC Division of Enforcement, gave his views on the SEC private equity enforcement initiative at a conference. Mr. Ceresney set forth the various categories of enforcement cases, which at this...more

5/16/2016 - Dodd-Frank Financial Markets Investment Adviser Investment Advisers Act of 1940 Private Equity SEC

SEC Approves PCAOB Rule Requiring Audit Partners to be Identified

The SEC has approved a proposed PCAOB rule requiring identification of audit engagement partners and certain other audit participants....more

5/10/2016 - Audits Disclosure Requirements Partnerships PCAOB SEC

SEC Opinion Examines Reasonable Belief and Accredited Investor Status

The SEC opinion In the Matter of Joseph P. Doxey examines compliance with Rule 506 in an alleged unlawful offering of stock totaling $57,654. The administrative law judge on summary disposition determined that Mr. Doxey...more

5/9/2016 - Accredited Investors ALJ Registration Requirement Regulation D Rule 501 Rule 502 Rule 506 Offerings SEC Securities Act of 1933 Securities Fraud Stocks

First Crowdfunding Portal Application Appears on EDGAR

CFS, LLC became the first crowdfunding portal application available on EDGAR. Actually, the initial application and two amendments are available. The company will conduct business under the name uFundingPortal and its website...more

5/2/2016 - Capital Raising Crowdfunding EDGAR Funding Portal SEC

New Proposed Rules on Banker Incentive Compensation Released

The National Credit Union Administration, or NCUA, became the first of six Agencies to unveil a revised rule proposal under Section 956 of the Dodd-Frank Act: prohibiting incentive-based payment arrangements that the...more

4/22/2016 - Banks Clawbacks Corporate Governance Disclosure Requirements Dodd-Frank FDIC FHFA Gramm-Leach-Blilely Act Incentive Compensation NCUA OCC Policies and Procedures Recordkeeping Requirements Risk Management SEC

SEC Issues Concept Release on Business and Financial Disclosure

The SEC has issued a concept release on business and financial disclosure required by Regulation S-K. The goal of the release assess whether the requirements of Regulation S-K continue to provide the information that...more

4/14/2016 - Disclosure Requirements Executive Compensation Regulation S-K SEC XBRL Filing Requirements

AG Explains Why the Conflict Minerals Decision Was Not Appealed to the Supreme Court

Loretta Lynch, United States Attorney General, explained in a letter to Paul Ryan, Speaker of the House, why the United States did not submit a writ of certiorari with respect to the conflict minerals decision: - The...more

4/11/2016 - Conflict Mineral Rules Disclosure Requirements First Amendment Petition for Writ of Certiorari SEC

Pay Ratio Disclosures Begin to Appear in Proxy Statements

Some companies have begun to disclose pay ratios in their proxy statements in advance of the SEC requirement. We have included a sample below. Of course, you’ll want to compare the samples to the rules before relying on them....more

4/11/2016 - CEOs Disclosure Requirements Dodd-Frank Executive Compensation Median Employee Pay Ratio Proxy Statements SEC

FinCEN Proposes Amendments to Bank Secrecy Act to Cover Crowdfunding Portals

FinCEN, a bureau of the Department of the Treasury, has proposed amendments to the definitions of “broker or dealer in securities” and “broker-dealer” under the regulations implementing the Bank Secrecy Act. This rulemaking...more

4/4/2016 - Bank Secrecy Act Broker-Dealer Crowdfunding Financial Crimes FinCEN Funding Portal JOBS Act SEC

Apple’s Conflict Minerals Smelters Nearly 100% Audited

Apple has filed its Form SD for the year ended December 31, 2015. It includes this disclosure: The combination of training, public reporting and a ticking clock drove the number from 82 smelters and refiners...more

4/1/2016 - Apple Audits Conflict Mineral Rules Disclosure Requirements Form SD Manufacturers Resource Extraction SEC Supply Chain Technology Sector

Shareholder Proponent Says “Substantial Implementation” Will Backfire

The SEC recently granted no-action relief to 15 of 18 companies related to shareholder proposals for proxy access. The basis for the relief was the company had already adopted a proxy access by-law and therefore the...more

3/23/2016 - No-Action Relief Proxy Access Rule 14a-8 SEC Shareholder Proposals

SEC Issues Guidance on Description of Shareholder Proposals on Proxy Cards

Rule 14a-4(a)(3) requires that the form of proxy “identify clearly and impartially each separate matter intended to be acted upon.” The SEC has issued a Compliance and Disclosure Interpretation, or CDI, on how a registrant...more

3/23/2016 - CDIs Proxy Season Proxy Voting Guidelines Rule 14a-8 SEC Shareholder Proposals

Brokaw Act to Increase Transparency of Activist Hedge Funds

U.S. Senators Tammy Baldwin (D-WI) and Jeff Merkley (D-OR) introduced legislation to increase transparency and strengthen oversight of activist hedge funds. According to the bill’s authors, the Brokaw Act is named for a small...more

3/22/2016 - Activist Hedge Funds Beneficial Owner Filing Requirements Proposed Legislation Schedule 13D SEC

SEC Brings First Ever Charges Against Municipal Advisors

The SEC charged Kansas-based Central States Capital Markets, its CEO, and two employees for breaching their fiduciary duty by failing to disclose a conflict of interest to a municipal client. The case is the SEC’s first to...more

3/15/2016 - Breach of Duty Conflicts of Interest Dodd-Frank Enforcement Actions Fiduciary Duty MSRB Municipal Advisers SEC

SEC Permits Investment Adviser to Submit Shareholder Proposal on Behalf of Client

The SEC recently denied no-action relief to a request by Baker Hughes Incorporated to exclude a Rule 14a-8 shareholder proposal submitted by Newground Social Investment, SPC, a registered investment adviser, on behalf of an...more

3/11/2016 - Annual Meeting Investment Adviser Rule 14a-8 SEC Shareholder Proposals

SEC Gives Board Chair a DPA for Failing to Correct Press Releases

The SEC alleges that Uni-Pixel Inc. began publicly touting sales of a touchscreen sensor product supposedly in speedy high-volume commercial production when in fact only a few samples had been manually completed. The...more

3/10/2016 - Deferred Prosecution Agreements Misrepresentation SEC Securities Fraud Stock Prices

Volcker Rule FAQs Updated for TruPS CDOs

The staff of the SEC’s Divisions of Trading and Markets, Investment Management, and Corporation Finance have updated guidance on the SEC’s final rule implementing section 13 of the Bank Holding Company Act of 1956 (“BHC...more

3/4/2016 - Bank Holding Company Act Banking Sector SEC Volcker Rule

Proxy Access: What do the Shareholders Want?

As Broc Romanek of TheCorporateCounsel.net recently noted, the SEC issued 18 no-action letters regarding the exclusion of shareholder proposals for proxy access under Rule 14a-8(i)(10) – the “substantially implemented” basis....more

3/2/2016 - No-Action Letters Proxy Access Rule SEC Shareholder Proposals

NYSE to Require Foreign Private Issuers to File Semiannual Financial Statements on Form 6-K

The SEC has approved an NYSE rule change which will require foreign private issuers to file semiannual financial statements on Form 6-K. Foreign private issuers are not currently subject to any SEC rule that specifically...more

2/23/2016 - Filing Requirements Financial Statements Foreign Private Issuers NYSE SEC

SEC Enters Into First Deferred Prosecution Agreement with an Individual for FCPA Violation

The SEC has entered into its first deferred prosecution agreement with an individual in an FCPA case. One interesting fact is it’s hard to figure out what this person allegedly did that was wrong. The FCPA Professor notes the...more

2/19/2016 - Deferred Prosecution Agreements FCPA Policy Violations SEC

SEC Brings $11,000 SOX Clawback Action

The SEC alleges that Marrone Bio Innovations, Inc. misstated its revenue. The SEC recently brought a settled enforcement action against its former CFO. The SEC alleges the CFO received bonuses during the 12-month periods...more

2/18/2016 - Clawbacks Corporate Bonuses Enforcement Actions Sarbanes-Oxley SEC

SEC Approves Nasdaq Rule Change to Permit Issuers to Regain Compliance Before Delisting for Failure to Hold Annual Meeting

The SEC has approved a Nasdaq rule change to permit Nasdaq to exercise discretion to grant an extension to regain compliance before delisting a company that fails to hold an annual meeting. In determining whether to grant a...more

2/15/2016 - Annual Meeting Delisting Extensions Nasdaq SEC

Same Plaintiff Files New Complaint to Force SEC to Act on Rulemaking Petition Regarding Political Contributions

The United States District Court for the District of Columbia recently dismissed Stephen M. Silberstein’s complaint to mandate the SEC to adopt rules regarding disclosure of political contributions. Among other things, the...more

2/8/2016 - Administrative Procedure Act Disclosure Requirements Political Contributions SEC Writ of Mandamus

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