In Case You Missed It - Interesting Items for Corporate Counsel - May 2016

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  1. The SEC, along with the Department of the Treasury, the Federal Reserve System, the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, and the National Credit Union Administration, proposed a joint rule, here, intended to curb compensation practices that encourage inappropriate risk-taking at financial institutions. The proposed rule replaces a 2011 rule proposal that generated over 10,000 comment letters, and its 488-page length hints at how difficult it may be to get your arms around what is “inappropriate” and where the balance lies between storing all the bank’s cash in the vault and betting big on Nyquist to win the triple crown.
  2. The SEC published a concept release, here, about modernizing the disclosures required under Regulation S-K, generally the compendium of non-financial public disclosure requirements from which various SEC forms pick and choose disclosure items. The SEC gives 90 days for comment on 340 specific requests for comment, and there is lots of stuff crammed into the 341-page release. SEC Chair White’s comments on the concept release are here.
  3. The SEC completed mandated JOBS Act rulemaking when it adopted final amendments, here, to rules to reflect new thresholds that govern when a company must begin public reporting, and when it may terminate registration and suspend public reporting. The rules also change the definition of “held of record” to exclude securities received under employee compensation plans.
  4. Recall that Regulation CROWDFUNDING, adopted in October 2015, is effective on May 16, 2016! The first crowdfunding portal application available on EDGAR is here. Yay!
  5. Twenty-eight law firms issued joint guidance, here, in the aftermath of two court decisions that interpreted the Trust Indenture Act to prohibit indenture amendments that would impair an issuer’s ability to pay amounts due on debt securities, even if the indenture expressly permits amendment. The firms tackle the issue of whether an unqualified legal opinion on an indenture amendment may be delivered in a debt restructuring or when the issuer is in financial distress. (Spoiler alert: Yes, sort of.)
  6. The Consumer Financial Protection Bureau proposed rules, here, that would prohibit covered providers of consumer financial products from using agreements that mandate arbitration of future disputes or bar the consumer from participating in class action lawsuits.
  7. Just in time for May 31 Conflict Mineral reports, the OECD issued its updated due diligence guidance for conflict minerals supply chains, here.

 

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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