A company cannot be sued by private parties under Rule 10b-5(b) for a “pure omission” but can be liable for omissions that render other statements misleading.
“Pure omissions” cannot be attacked in private 10b-5(b)...more
4/24/2024
/ Disclosure ,
Disclosure Requirements ,
Item 303 ,
Macquarie Infrastructure Corp v Moab Partners LP ,
Misleading Statements ,
Omissions ,
Regulation S-K ,
Rule 10b-5 ,
SCOTUS ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act of 1934 ,
Securities Fraud ,
Securities Violations
On the heels of record-breaking enforcement in 2022, expect continued aggressive pursuit of Chair Gensler’s priorities in 2023.
The SEC will continue to bring its considerable resources to bear to address ESG-related...more
1/30/2023
/ Audits ,
Broker-Dealer ,
Compliance ,
Consumer Protection Act ,
Corporate Counsel ,
Cryptocurrency ,
Cybersecurity ,
Digital Assets ,
Dodd-Frank ,
Enforcement ,
Environmental Social & Governance (ESG) ,
Individual Accountability ,
Insider Trading ,
Investment Adviser ,
Private Funds ,
Proposed Rules ,
Securities ,
Securities and Exchange Commission (SEC) ,
Special Purpose Acquisition Companies (SPACs) ,
Whistleblowers ,
Willful Misconduct
Rule proposals, if adopted, would more closely align de-SPAC mergers with traditional IPOs with respect to disclosure requirements, marketing practices, and gatekeeper obligations.
Proposed Rules would significantly...more
4/18/2022
/ Conflicts of Interest ,
Disclosure Requirements ,
EGCs ,
Fiduciary Duty ,
Financial Statements ,
Initial Public Offering (IPO) ,
Investment Company Act of 1940 ,
Mergers ,
Proposed Rules ,
PSLRA ,
Safe Harbors ,
Securities Act of 1933 ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act of 1934 ,
Shareholders ,
Shell Corporations ,
Special Purpose Acquisition Companies (SPACs)
As 2021 comes to a close, Chair Gensler caps an ambitious inaugural year by proposing sweeping changes to the availability of Rule 10b5-1 trading plans.
The proposed amendments—in which all five Commissioners joined—are...more
As the SEC continues to develop its ESG agenda, a series of recent cases underscores the risk posed by ESG-related litigation.
Although the courts have not been receptive to the most recent round of ESG-related lawsuits,...more
Recent enforcement action could signal expanding the boundaries of misappropriation theory, with significant implications for SEC-regulated entities and other market participants.
With Chair Gensler at the helm, an...more
Chair Gensler’s enforcement agenda begins to take shape as SEC brings sprawling enforcement action against wide range of SPAC participants.
Consistent with prior SEC warnings regarding incentives for Special Purpose...more
7/16/2021
/ Airspace ,
CFIUS ,
Disclosure Requirements ,
Due Diligence ,
Enforcement Actions ,
False Statements ,
Financial Industry Regulatory Authority (FINRA) ,
Initial Public Offering (IPO) ,
Insider Trading ,
Internal Controls ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act of 1934
March Madness extends into April as the Commission markedly increases its focus on SPACs.
Surprise pronouncements call into question use of the PSLRA safe harbor for projections and accounting treatment for warrants....more
4/19/2021
/ Corporate Counsel ,
Disclosure Requirements ,
Enforcement Actions ,
Initial Public Offering (IPO) ,
Insider Trading ,
Investors ,
New Guidance ,
Offering Documents ,
Proxy Statements ,
PSLRA ,
Registration Statement ,
Risk Mitigation ,
Safe Harbors ,
Securities and Exchange Commission (SEC) ,
Special Purpose Acquisition Companies (SPACs)
SPACs have seen exponential growth in 2020, but SPAC sponsors, investors and targets should beware the scrutiny de-SPAC transactions are receiving from the plaintiffs’ bar and the SEC.
2020’s SPAC IPO explosion will...more
12/16/2020
/ Corporate Counsel ,
D&O Insurance ,
Enforcement Actions ,
Financial Institutions ,
Initial Public Offering (IPO) ,
Private Securities Litigation Reform Act of 1995 ,
Safe Harbors ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
Securities Exchange Act of 1934 ,
Special Purpose Acquisition Companies (SPACs)
In a significant ruling, the U.S. Supreme Court has expanded the potential liability of those involved in disseminating material misrepresentations to potential investors—exposing them to primary liability under SEC Rule...more
4/4/2019
/ False Statements ,
Intent to Defraud ,
Investment Banks ,
Lorenzo v SEC ,
Material Dissemination ,
Misleading Statements ,
Publicly-Traded Companies ,
Rule 10b-5 ,
Scienter ,
SCOTUS ,
Securities and Exchange Commission (SEC) ,
Securities Exchange Act ,
Securities Violations
Varjabedian ruling challenges long-standing precedent of scienter requirement.
Section 14(e) ruling creates circuit split, increasing odds of Supreme Court review. ...more
Rejecting contrary SEC regulation, Court holds that Dodd-Frank does not protect whistleblowers who report up internally but do not report out to the SEC.
Supreme Court resolves circuit split over Dodd-Frank Act’s...more
2/27/2018
/ Anti-Retaliation Provisions ,
Digital Realty Trust Inc v Somers ,
Dodd-Frank ,
Internal Reporting ,
Reporting Requirements ,
Retaliation ,
Sarbanes-Oxley ,
SCOTUS ,
Securities and Exchange Commission (SEC) ,
Securities Violations ,
Whistleblower Protection Policies ,
Whistleblowers
Section 304 of the Sarbanes-Oxley Act of 2002 (15 U.S.C. § 7243) requires CEOs and CFOs to repay bonuses, incentive- and equity-based compensation, and profits realized on the sale of securities received in the 12 months...more
9/9/2016
/ CEOs ,
CFOs ,
Clawbacks ,
Corporate Counsel ,
Corporate Misconduct ,
Disgorgement ,
Executive Compensation ,
Financial Statements ,
Sarbanes-Oxley ,
Section 304 ,
Securities and Exchange Commission (SEC)
SEC Rule 10b-5 makes it unlawful to misstate a material fact (or omit to say something if the omission would render misleading what you do say) in connection with the purchase or sale of a security. The Private Securities...more
The U.S. Supreme Court’s recent decision in Gabelli v. Securities Exchange Commission (Feb. 27, 2013) rejects an attempt by the Securities and Exchange Commission to extend a statute of limitations by invoking a “discovery...more